The Forum

By: Christy Commers

Columnist

For this issue, I want to discuss whether police should be able to take a suspect’s DNA with the same ease as they can take a suspect’s fingerprints. The Indiana Supreme Court is deciding this issue in a case where Valparaiso University students were victimized.

Auturo Garcia-Torres, a 36- year-old illegal immigrant, was convicted in Porter County Superior Court in 2008 for rape, two counts of burglary, and attempted rape and was sentenced to thirty-six years in prison. In the summer of 2004, he raped a VU student who had just walked back to her apartment from a friend’s. The victim heard an individual frantically ringing her doorbell. As she opened it slightly, Garcia-Torres pushed his way inside the apartment. The victim struggled with Garcia-Torres before being raped. DNA evidence found on the victim tied Garcia-Torres to the crime.

Less than a year later, Garcia-Torres entered another student’s apartment through an open window and attempted to rape her. The victim screamed as she struggled with her attacker. These screams prompted neighbors to call the police. Garcia-Torres fled the scene once he heard a police officer identify himself. Through the help of Garcia-Torres’ roommate, police were able to identify him. DNA evidence found at the second victim’s apartment, one of Garcia-Torres’ shoes left behind, tied him to the second crime. The police also found Garcia-Torres’ cell phone blocks from the victim’s apartment.

Garcia-Torres was brought to the station for questioning. There he was interviewed by two Valparaiso detectives, one about the 2005 attempted rape and the other about the 2004 rape. During the 2004 rape interview, Garcia-Torres was interviewed and questioned by two separate detectives about the assault and attempted assault, and one detective requested and received consent to collect a DNA sample through a cheek swab. Garcia-Torres also made incriminating statements during the interviews, which were suppressed due to Garcia-Torres not receiving a proper translation of his Miranda rights in Spanish. At the same time, he made a second motion to exclude the DNA evidence collected during the interview, which was denied by the trial court.

In his appeal, Garcia-Torres states that the trial court abused its discretion in admitting the DNA test results obtained during the interview. While he argues that the test should be suppressed on three grounds, I will focus on whether Garcia-Torres’ 4th Amendment right against unreasonable search and seizure was violated.

The Court of Appeals held that “a police officer can stop and detain a suspect if the officer has a ‘reasonable suspicion,’ supported by articulable facts, that criminal activity may be afoot, even if the officer lacks probable cause.” It found that a cheek swab falls under a limited search that only requires a reasonable suspicion and, thus, could be done without a warrant. The Court also noted that a cheek swab is likely less invasive than other types of searches done under the reasonable suspicion standard.

The Court then had to determine whether the officers had reasonable suspicion to obtain the DNA sample from Garcia-Torres. Reasonable suspicion, the Court held, must be determined on a case-by-case basis by analyzing the totality of the circumstances and requires officers to “have more than an inchoate and unparticularized suspicion or hunch, but need not have the level of suspicion necessary for probable cause.” Based on this analysis, the Court found that the officers had more than a reasonable suspicion to obtain a DNA sample from Garcia-Torres. The police found his cell phone near the scene of the attack, a shoe similar to those which he owns was found in the victim’s apartment, and he matched the victim’s general description of her attacker.

And now for the opinion of the Commers Court… I agree with the Court of Appeals that, in this case, obtaining a DNA sample from Garcia-Torres did not require a warrant. The police already had enough evidence tying him to the second crime to get a DNA sample from Garcia-Torres. However, I am unsure if the Court of Appeals would come to the same determination if the other evidence tying the attacker to the crime was not as strong. Suspects should only be required to give a DNA sample when there is sufficient evidence to show they likely committed the crime.

Christy is a 3L and can be reached at christen.commers@valpo.edu.

This entry was posted on Monday, January 25th, 2010 at 1:02 pm and is filed under 1-Ready for Editing, 2-Ready for Final Edit, 3-Ready for Publication.You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.