Garcia-Torres notes that the taking of the DNA sample was done without a warrant and contends that his consent to the sample was not voluntary. [Footnote omitted.] . . . We need not address the question of whether Garcia-Torres validly consented to the DNA swab, however, because we conclude that another exception to the warrant requirement has been established.
“One exception to the warrant requirement is an investigatory stop whereby a police officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be afoot, even if the officer lacks probable cause.” Santana v. State, 679 N.E.2d 1355, 1359 (Ind. Ct. App. 1997) (citations omitted). “In such a case the officer may briefly detain [a suspect] to conduct a limited ‘non-invasive’ search such as a ‘pat down’ for weapons, a license and registration check, or field sobriety tests.” Snyder v. State, 538 N.E.2d 961, 963 (Ind. Ct. App. 1989), trans. denied.
After comparing cheek swabs with other searches requiring only reasonable suspicion, we conclude that the DNA sample collection technique at issue here, although minimally invasive, is also one of those limited searches that requires only reasonable suspicion and may therefore be conducted without a warrant. If anything, the cheek swab involves much less impact on the subject than some other searches that all agree may be conducted based on mere reasonable suspicion. As the United States Supreme Court has observed, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry, 392 U.S. at 24-25. And yet, it is universally understood that such a pat-down may be conducted upon reasonable suspicion.
In contrast, a cheek swab takes even less time than a pat-down or field sobriety tests (“FSTs”) and is painless. Moreover, a swab of the inside of the cheek is very limited in scope, whereas a pat-down will generally involve manual exploration of the entirety of a suspect‘s body, including the genital areas. Finally, a swab does not carry nearly the same potential for opprobrium as pat-downs or FSTs, which will typically occur on public thoroughfares. As such, swabs are even less violative of the “[t]he interests in human dignity and privacy which the Fourth Amendment protects” than pat-downs or FSTs. Schmerber, 384 U.S. at 769-70. If pat-downs and FSTs may be performed based upon mere reasonable suspicion, it follows, then, that cheek swabs, which are even less burdensome, may be as well. . . . .
Concluding, as we do, that a cheek swab is a search which is justified by the presence of reasonable suspicion, the only other question is whether police had reasonable suspicion in this case. . . . .
Here, we conclude that police had far more than a mere hunch that Garcia-Torres had been involved in the attack on S.P. when they collected the DNA sample. At the time, police knew that a mobile telephone belonging to Garcia-Torres had been found very near to where S.P.’s attacker had last been seen when fleeing police, that a shoe identical to shoes owned by Garcia-Torres had been found in S.P.’s apartment, and that he answered to S.P.’s general description of her attacker. The telephone and, particularly, the shoe, when one considers where they were found and that they were found soon after the attack, strongly suggest that they were left by the attacker, and both items were traced back to Garcia-Torres, who also happened to fit S.P.’s description. These objective facts, taken together, support a reasonable suspicion that Garcia-Torres was S.P.’s attacker, thereby justifying the cheek swab.
Garcia-Torres contends that all DNA evidence obtained from him must be suppressed under Pirtle, 263 Ind. at 16, 323 N.E.2d at 634. In Pirtle, the Indiana Supreme Court held that “a person who is asked to give consent to search while in police custody is entitled to the presence and advice of counsel prior to making the decision whether to give such consent.” Id. at 29, 323 N.E.2d at 640. . . . .
Here, although Garcia-Torres was advised that he had the right to consult with an attorney before answering police questions, this advisement, as it did not refer to searches, is not adequate under Pirtle and its progeny. . . . .
Moreover, there seems to us little doubt that Garcia-Torres was in custody when he was requested to give the cheek swab, as he was in the presence of two police detectives at the police station, had been advised of most of his Miranda rights, and had already admitted to his role in the attack on S.P. . . . There is, however, an initial inquiry, which is whether the Pirtle doctrine even applies to cheek swabs.
We conclude that Pirtle cannot apply to the instant case, as such an application would serve none of the principles undergirding that decision and lead to an unsound result. We have already concluded in our Fourth Amendment analysis that cheek swabs are searches requiring only reasonable suspicion, and we reach the same conclusion under Section 11. Under the federal reasonableness test for gathering of physical samples, the “extent to which the procedure may threaten the safety or health of the individual” and the “extent of intrusion upon the individual‘s dignitary interests in personal privacy and bodily integrity” should be “[w]eighed against … the community’s interest in fairly and accurately determining guilt or innocence.” Winston v. Lee, 470 U.S. 753, 761-62). This test tracks to a large extent the Section 11 test that requires us to consider, in part, “the degree of intrusion the method of the search or seizure imposes on the citizen‘s ordinary activities, and … the extent of law enforcement needs.” [Footnote omitted.] Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). While we believe that a cheek swab is intrusive enough that some level of particularized suspicion is required, we do not believe that it is so intrusive as to require probable cause. Given the very low degree of intrusion of a cheek swab and the extremely compelling law enforcement needs, we conclude that the proper balance is struck by requiring reasonable suspicion. Cf. Ackerman, 774 N.E.2d at 981 (noting that probable cause is not required to administer FSTs under Article I, Section 11), trans. denied.
Moreover, just as it is under the Fourth Amendment, reasonable suspicion is a recognized exception to the warrant requirement under Article I, Section 11, See, e.g., Campos v. State, 885 N.E.2d 590, 597, and here police had ample reasonable suspicion that Garcia-Torres had committed a crime. The significance of this, of course, is that once police had established reasonable suspicion to conduct the cheek swab, the search was already fully justified under Section 11–with or without Garcia-Torres’s consent and without need for a search warrant. Because consultation with an attorney regarding your rights to refuse consent and the various requirements for a search warrant can do you no good when you cannot refuse consent and the State does not need to obtain a search warrant, Pirtle’s advisement requirement simply has no place in the context of a reasonable suspicion search.
BROWN, J, concurs.
CRONE, J., dissents with opinion:
I believe that the taking of a cheek swab from a custodial suspect for purposes of extracting a DNA profile is a search requiring probable cause under the Fourth Amendment and is subject to the advice-of-counsel requirements of Pirtle. As such, I conclude that the trial court committed reversible error in admitting the DNA evidence obtained from Garcia-Torres‘s cheek swab in this case.