Volume 36 Issue 31 October 23, 2009

Garcia-Torres v. State, No. 64A03-0812-CR-630, __ N.E.2d__ (Ind. Ct. App., Sept. 30, 2009)

DNA cheek swab may be taken without a warrant based on reasonable suspicion; Pirtle counsel right for a valid consent to search by a person in custody does not apply to consenting to taking of a cheek swab.

Clark v. State, No. 43S00-0810-CR-575, __ N.E.2d __ (Ind., Oct. 15, 2009)

Defendant’s statements about himself on his “My Space” website as an “outlaw” were properly admitted to rebut his testimony at trial.

Damron v. State, No. 49F18-8909-PC-109913, __ N.E.2d __ (Ind. Ct. App., Oct. 19, 2009)

Record is not “silent” for purposes of Boykin rights waiver advisement because guilty plea hearing recording was destroyed; here, P-C.R. petitioner presented no evidence he was not advised of Boykin rights, so “presumption of regularity” that advice was given applied.

Hobbs v. State, No. 19A01-0904-CR-187, __ N.E.2d __ (Ind. Ct. App., Oct. 21, 2009)

Warrantless search of defendant’s car, conducted in the evening after defendant’s arrest on an outstanding warrant and after an alert by a drug-sniff dog, did not violate Indiana Constitution’s Article I section 11.

Garcia-Torres v. State, No. 64A03-0812-CR-630, __ N.E.2d__ (Ind. Ct. App., Sept. 30, 2009)


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.

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Clark v. State, No. 43S00-0810-CR-575, __ N.E.2d __ (Ind., Oct. 15, 2009)


It seems that Matara had helped Clark create his own personal entry on MySpace, the social networking website. Clark testified in his own defense, and the prosecutor read to Clark, over defense counsel’s objection, his own description of himself:

Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I’m glad to say I have helped you people in my past who have done something and achieved on the other hand, I’m sad to see so many people who have nowhere. To those people I say, if I can do it and get away. B. . . sh. . . . And with all my obstacles, why the f. . . can’t you.

(Tr. at 466–68.)

Clark contends the trial court abused its discretion when it admitted evidence of his MySpace posting. (Appellant’s Br. at 20–24.) Clark claims this was inadmissible character evidence, citing Indiana Rule of Evidence 404(b), which provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan knowledge, identity, or absence of mistake or accident.

(Appellant’s Br. at 20–24.) Evidence is excluded under Rule 404(b) when it is introduced to prove the “forbidden inference” of demonstrating the defendant’s propensity to commit the charged crime. Camm v. State, 908 N.E.2d 215 (Ind. 2009).

Otherwise inadmissible evidence may be admitted where the defendant opens the door to questioning on that evidence. Jackson v. State, 728 N.E.2d 147 (Ind. 2000). The door may be opened when the trier of fact has been left with a false or misleading impression of the facts.

We conclude that the trial court properly admitted the evidence of Clark’s MySpace page. Clark’s posting contained only statements about himself and in reference to himself. (Tr. at 465–469.) Thus, the State is right to observe that this is solely evidence of his own statements, not of prior criminal acts. It was Clark’s words and not his deeds that were at issue, so Rule 404(b) does not apply.

It is only slightly more difficult to consider whether the MySpace entry was actually probative of any issue at trial. Clark testified that at most Samantha died because he was drunk and he was “reckless.” (Tr. at 431–32.) Clark made his character a central issue, a reasonable defense strategy presumably aimed at obtaining a jury verdict on the lesser-included offense of reckless homicide. He testified on a number of occasions about his state of mind, suggesting his intent could only have been “reckless” and not criminal:

Clark: I was negligent. I was reckless. I was irresponsible. I was an a. . . hole. Sorry but for a lack of a better word, but, yeah. That’s what I am, but I’m not an intentional killer. I mean, I don’t even know how to explain this, but there’s a lot better ways to kill somebody that [sic] doing it like that. You know, there’s no attempt to hide the crime. I didn’t clean up anything. I didn’t change clothes, mens rea. People do certain things when they kill somebody. They try to hide a crime. There’s no evidence. No evidence whatsoever that I tried to hide anything. And the cops, they know that. They know that. (Id.)

State: You say, your conduct is reckless?

Clark: Most definitely. That’s what your evidence shows.

(Tr. at 469.)

State: Well, why didn’t you pick up the phone and call 911?

Clark: Once again, I was incoherent. It’s an issue of coherency. You asked me a question. Can I answer it?

State: Sure, go ahead.

Clark: Thank you sir. I mean, it’s more or less common sense for the Jury. Let them figure it out, but the bottom line is your officers, oh, he’s not drunk, he’s not drunk, and your own tests say I am drunk. It’s one of those issues where you guys are trying to make an issue out of something that simply is not an issue. You’re making a murder charge out of a reckless homicide charge. I’ve told your office that over and over. I would plead guilty to reckless homicide. You’re making an issue of it. You’re attacking every little thing and you’re looking pitiful in front of this Jury.

State: Why would you plead guilty to reckless homicide if you didn’t do anything?

Clark: A reckless act that ends in the death of a human being is termed reckless homicide. I believe, through the evidence, and common sense, Mr. Hearn, that I am guilty of reckless homicide. I am not guilty of an intentional crime. And the evidence, one hundred percent, shows that.

State: Well, reckless homicide is that you knowingly and intentionally committed an act and you’re saying you’re willing to admit to that?

Clark: I’m guilty. I will answer this for you one more time, and then I won’t answer your question if you pose it another way. So, get this straight. I’m guilty of a reckless act. Period.

(Tr. at 471–472.) Once Clark took the stand to testify along these lines, it was proper to permit the prosecution to confront Clark with his own seemingly prideful declarations that rebutted his defense. Clark’s MySpace declarations shared much with his boast to the police after he killed Samantha: “It’s only a C Felony. I can beat this.”

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

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Damron v. State, No. 49F18-8909-PC-109913, __ N.E.2d __ (Ind. Ct. App., Oct. 19, 2009)


On February 13, 1991, Damron pled guilty to one count of Class D felony operating a vehicle while intoxicated. On January 17, 2007, Damron filed a petition for post-conviction relief alleging that his guilty plea was not knowing, voluntary, or intelligent because the trial court did not keep a record of his guilty plea hearing.

Although the post-conviction court initially granted Damron’s petition, on April 15, 2008, it subsequently granted the State’s motion to correct error. On July 15, 2008, the post-conviction court held an evidentiary hearing at which Damron testified that he pled guilty but did not remember the particulars of the guilty plea. The post-conviction court also considered affidavits from trial counsel and the trial judge who presided over the guilty plea.  [Footnote omitted.]  In their affidavits, they stated that they were unable to recall the guilty plea hearing. The post-conviction court also considered the affidavit of the court reporter, who stated:

1. That she is the Court Reporter for the Marion County Criminal Court #21.

2. That she is has [sic] made a due and diligent search for the record of evidence in State of Indiana vs. Mark Damron, Cause 49F06-8909-CF-109913.

3. That these tapes are only kept for a period of ten (10) years and the above tapes have since been destroyed.

4. That due to the above, she is unable to prepare the requested transcript.

App. p. 61.

Based on the destruction of the tapes, the post-conviction court concluded that “[a] destroyed record is, by its very definition, silent.” App. p. 58. The post-conviction court held that a waiver of Boykin rights cannot be presumed from a silent record and granted Damron’s petition for post-conviction relief. The State now appeals.

. . . .

In his petition for post-conviction relief, Damron argued that the destruction of the tape of his guilty plea hearing prevented meaningful review of his 1991 guilty plea. The United States Supreme Court requires that the record of a guilty plea hearing must show, or there must be an allegation and evidence which show, that the defendant was informed of, and waived, three specific federal constitutional rights: the privilege against compulsory self-incrimination, right to trial by jury, and the right to confront one’s accusers. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006) (citing Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969)). The Boykin court made clear that courts cannot presume a waiver of these important federal rights from a silent record. Id.

In Hall, however, our supreme court clarified that a lost record is not the per se equivalent of a silent record. The Hall court explained:

The fact that the record of a guilty plea hearing can neither be found nor reconstructed does not of itself require granting post-conviction relief. Rather, as with any claim made in a petition for post-conviction relief, a claim that the petitioner’s conviction was obtained in violation of federal or state constitutional safeguards . . . must be proven by a preponderance of the evidence.

Hall, 849 N.E.2d at 470.

The State argues, “There is no evidence whatsoever in this case, that the trial court received Petitioner’s guilty plea without a hearing, without advisements of constitutional rights, or without any warnings of the consequences of his guilty plea.”  . . . Damron responds that “the transcript was not simply lost, or missing, but was wrongfully and intentionally destroyed in violation of the Indiana Rules of Criminal Procedure.” . . . Indiana Criminal Rule 10 provides in part:

If a transcription of the recorded matters has not been prepared, certified and filed in the criminal proceeding, the electronic recording of all oral matters, together with a log denoting the individuals recorded and the meter location of crucial events, shall be maintained as a court record for ten years in all misdemeanors or fifty-five years in all felony cases.

. . . [T]he question before us is whether the premature destruction of a tape of a guilty plea hearing by court staff renders the record silent for purposes of Boykin. We conclude it does not.

. . . .

. . . Damron is collaterally attacking his guilty plea. See Hall, 849 N.E.2d at 472 (“[O]ur courts have long deemed post-conviction proceedings collateral.”). Also, the destroyed record is not “suspiciously silent.” The untimely destruction of a tape does not in and of itself indicate that the State—the county prosecutor or the Attorney General—acted improperly. See id. (observing there was “no suggestion that the cause of the missing record is the result of misconduct by the State.”). It appears that the trial court had a policy of destroying tapes after ten years, and without more we cannot equate this policy, although in contravention of the Indiana Rules of Criminal Procedure, to governmental misconduct. Given these facts, we cannot conclude that the presumption of regularity should not apply here.

Further, Damron presented no evidence that he was not informed of his Boykin rights at the time of his guilty plea.  . . . To establish that his guilty plea was unknowing and involuntary, Damron was required to prove by a preponderance of the evidence that he was not informed of his Boykin rights. See Hall, 849 N.E.2d at 470. Damron did not carry his burden of proof.

NAJAM, J., and KIRSCH, J., concur.

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Hobbs v. State, No. 19A01-0904-CR-187, __ N.E.2d __ (Ind. Ct. App., Oct. 21, 2009)


The facts appearing in the probable cause affidavit reveal that on the evening of March 13, 2009, state police officers went to Hobbs’ place of employment, Pizza Hut, in Jasper, Indiana, to serve a felony warrant from another county on Hobbs. As they approached, the troopers saw Hobbs exit the restaurant, walk over to his car, and place something inside. Hobbs returned to the restaurant before the troopers could reach the parking lot. The troopers entered the restaurant and arrested Hobbs.

They asked Hobbs for permission to search his vehicle, and Hobbs refused. The troopers then summoned a narcotics detection dog, who conducted an exterior canine sniff of Hobbs’ car. The dog alerted to an odor of an illegal narcotic coming from Hobbs’ car. The troopers then searched the car and discovered a cooler containing two sets of scales, rolling papers, a box of sandwich bags, and a plant-like material which later proved to be marijuana.

. . . .

In Brown v. State, 653 N.E.2d 77 (Ind. 1995), the police performed a warrantless search of an unoccupied automobile found parked along the public street in a residential neighborhood and surrounded it with police cars. A witness had seen a similar automobile suspiciously leaving the scene of a robbery the day prior to the warrantless vehicle search at issue. On review of the trial court’s denial of the defendant’s motion to suppress evidence under the Indiana Constitution, our Supreme Court took into consideration the small likelihood that the car would be moved, that there was no shortage of time or existence of an emergency, and that the police were not engaged in a community caretaking function. Id. at 80. Our Supreme Court noted that “Hoosiers regard their automobiles as private and cannot easily abide their uninvited intrusion,” and further stated “[w]e are extremely hesitant to countenance their casual violation, even by law enforcement officers who are attempting to solve serious crimes.” Id. at 80 n.3. Reversing the trial court’s decision, our Supreme Court held the warrantless search was unreasonable and suppressed the evidence obtained during the search explaining that “[o]nly by such suppression can the privacy of all Hoosiers be adequately protected.” Id. at 80.

Our Supreme Court in Myers concluded that the warrantless search of the defendant’s vehicle did not violate Article 1, section 11 of the Indiana Constitution. In Myers, the defendant’s vehicle was parked on private property in the driveway to his residence after a traffic stop. The officer who was issuing the warning to the defendant noted the scent of cologne in the defendant’s vehicle, observed defendant’s nervousness, was aware of defendant’s possible drug activity, and considered the alert given by the narcotics detection dog. The search was conducted while the defendant was present, not under arrest, and was free to drive his vehicle away and dispose of the contraband. Access to a magistrate for the issuance of a search warrant was more difficult for police officers because the search occurred after midnight. Lastly, the vehicle was clearly connected to the defendant who had behaved suspiciously during the traffic stop, and was the subject of the alert of the narcotics detection dog after the canine sweep of the exterior of the vehicle.

The Supreme Court found there was a significant degree of concern, suspicion, or knowledge that a violation had occurred. Myers, 839 N.E.2d at 1154. The police knew that defendant had driven the searched vehicle, had exhibited suspicious behavior during a traffic stop, and the narcotics detection dog had alerted to that vehicle. Id. at 1154. Although there was an intrusion on the defendant’s ordinary activities, the Supreme Court noted that the intrusion was somewhat lessened in terms of public notice and embarrassment by the hour and place of the search. Id. Lastly, the “extent of law enforcement needs” involved a consideration of the availability of a magistrate to issue the warrant, and that if police officers were not blocking the car with their vehicles, the defendant, who was present and not under arrest, could drive it away. Id. The Supreme Court concluded that the search in Myers did not violate the search and seizure provisions of Article 1, section 11 of the Indiana Constitution. Id.

Guided by those cases and applying the Litchfield factors to the present case, we find that the warrantless search did not violate Article 1, section 11 of the Indiana Constitution. The alert by the narcotics detection dog provided a significant “degree of concern, suspicion, or knowledge that a violation ha[d] occurred.” Litchfield, 824 N.E.2d at 361. Also, the information known to police clearly related to the vehicle to be searched, and there were significant indicators that it contained contraband, thus satisfying the first Litchfield factor. Although, unlike the situation in Myers, the imposition of an intrusion on the citizen’s ordinary activities was not lessened by the hour and place of the search, Hobbs had already been placed under arrest on an unrelated warrant. Evaluating the potential for public notice and embarrassment, although the search here was conducted during Hobbs’ working hours at his place of employment, we again note that Hobbs had already been placed under arrest, presumably in the presence of other employees. Analysis of the third Litchfield factor, the extent of law enforcement needs, reveals no showing that a magistrate would not have been available in the evening hours to consider the issuance of a warrant, and that Hobbs was under arrest at the time and unable to personally drive the car away. We conclude, after application of the Litchfield factors, that the present case is more similar to Myers, where the warrantless search was upheld, than it is to Brown, where the search was found to be in violation of the Indiana Constitution. Accordingly, the trial court erred when it determined, sua sponte, that the warrantless search violated the Indiana Constitution.

NAJAM, J., and BARNES, J., concur.

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