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.

By:  Christen Commers

Columnist

The Valparaiso University Volunteer Income Tax Assistance (VITA) Program provides tax preparation services to students and low- to moderate-income individuals in our area.  Appointments are still available for those seeking to have their taxes done by an IRS-certified preparer.

To have your taxes prepared, please visit the Valparaiso VITA homepage at http://www.valpo.edu/law/vita or call (219) 465-7900.  Please direct all questions to Valpo.vita@gmail.com.

By Christy Commers
This year’s last common focuses on a new Supreme Court decision on how to regulate profanity in the media. / /

In FCC v. Fox Television Stations, — S.Ct. —, 2009 WL 1118715 (U.S. 2009), the Court narrowly upheld an FCC rule which threatened fines for the use of expletives on live television. The Justices, in a 5-4 decision with six separate opinions, overturned a Second Circuit ruling for Fox. The circuit court’s decision remanded the case back to the FCC for an analysis of the tougher standard. Instead of issuing the analysis, the FCC appealed to the Supreme Court./ /

The controversy started when Bono, Cher, and Nicole Ritchie used the F-and S-words during award shows. As a result of these outbursts, the FCC changed its long standing policy and implemented the “fleeting expletive” rule. The rule finds some words are so offensive that when they are used, they always evoke images of sex or bodily functions. The previous policy allowed stations one free expletive before being fined and words now considered “fleeting expletives” were not offensive. According to the Associated Press, the FCC felt the policy change was necessary to keep broadcast television and radio free from profanity when children may be watching. / /

The crux of this case focused on whether the FCC reasonably changed the policy, concluding that profanity related to sex and bodily functions is always indecent. Justice Scalia, for the Court, wrote that the agency’s action does not require a more extensive standard of review, arguing that an analysis that is more extensive than that used to adopt the policy is not required for every policy change. Additionally, Justice Scalia held that the new policy was neither arbitrary nor capricious. In her dissenting opinion, Justice Ginsburg wrote that the FCC’s actions violate the First Amendment right to freedom of speech. Justice Stevens, in his dissent, wrote that while “fleeting expletives” can be bad, there is also allowable language that can have an equally negative effect on children, citing the vast number of commercials advertising erectile dysfunction and prostate prescriptions. / /

This decision is likely not the end of the debate, as the Justices stated the rule could still be found unconstitutional, and asked if the Court of Appeals should determine whether the “fleeting expletive” rule violates the First Amendment./ /

As expected, there was reaction on both sides of the issue. The Associated Press article stated that Acting FCC Chairman Michael Copps celebrated the decision, as did Tim Winter, the president of the Parents Television Council, an advocacy group. Fox was upset by the decision, but felt it would win on the First Amendment claim./ /

And now for the opinion of the Commers Court…I see the need to ensure children can watch tv and listen to the radio without being exposed to indecent language, but I do not find the majority’s view meshes with today’s television viewing. As the Associated Press noted, FCC rules are only enforceable on broadcast media, so cable stations and the internet can do as they wish without worrying about fines from government agencies. Harsh regulations will only serve to move all live events (such as award shows and sporting events), from broadcast to cable television, and out of the reach of those who cannot afford or choose not to subscribe to cable or satellite television. Having said that, celebrities must take responsibility for what they say and do. It is unfair to punish a television station for the words of someone looking for publicity based on what they say. We also must realize that news events can happen live on television and the reactions to those circumstances may cause expletives to be said. Common sense should rule how the FCC enforces this rule.

Christy is a 2L and can be reached at Forum@Valpo.edu

This month’s focus is on how the law treats transgendered indi­viduals who allege workplace discrimination. Various transgendered individuals in Northwest Indiana have filed lawsuits because of alleged dis­crimination by their respective employ­er or school.

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I’m departing this month from the column’s traditional format to pon­der a facet of our democratic system that is taken for granted and overlooked: the Inauguration of a President.

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This month we’re focusing on the issue of using marijuana for me­dicinal purposes. Several states have already decriminalized use of the drug for medicinal purposes, and this past election saw more states, including Michigan, jump on board.

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While many were already at home enjoying their Thanks­giving Break, others stayed to celebrate Thanksgiving early with their classmates, professors and staff. On Monday, November 24, 2008, the Valparaiso University School of Law held its 22nd annual Thanksgiving Lunch.

The event, which cost $6 for ad­vance tickets and $8 that day, provided a traditional Thanksgiving meal for more than 170 people alike. The proceeds went to local community organizations. President and Mrs. Heckler joined in the festivities of the day by attending the feast.

The lunch featured an outstand­ing assortment of food. Along with the traditional turkey and rolls, guest chose from a variety of side dishes, including: cranberry sauces, green bean casserole, broccoli casserole and corn soufflé, various types of jello and tossed salads, and a host of desserts including pump­kin and apple pies, cookies and cakes. Items that got high marks from lunch-goers included the rice crispie treats molded into the shape of a drumstick and the many side dish options. With the amount of food served, it was cer­tain no one left the lunch hungry.

The faculty and staff who put on the lunch deserve special credit. Dean Mary Persyn spearheaded the event while Library Circulation Desk Su­pervisor Debbie Blennerhassett was responsible for ticket sales. Persyn also bought and cooked the turkeys, ensuring there was plenty of meat for the hungry guests. Assistant Registrar Linda Canada took the lunch tickets and tracked the number of people attending the affair. Other staff and faculty con­tributed to the lunch by providing side dishes and desserts, decoration, and a clean-up crew.

The Thanksgiving Dinner is an event many look forward to during Fall semester. If you haven’t enjoyed Law School Thanksgiving feast before, you should plan to attend next year as it’s worth the extra time spent in Valpo.

Christy is a 2L and can be reached at forum@valpo.edu.

[Editor’s Note: Would the person who makes the drumstick rice krispies please e-mail the recipe at sarah.crouch@val­po.edu. I won’t be here next year and would like to make them in a far away land known as New Jersey. I promise to take any secret ingredient included in them to the grave. Thanks.]

In a ceremony observed by hundreds of Valparaiso University students, alumni, and friends in the Chapel of the Resurrection, Mark A. Heckler was installed Friday, October, 18, 2008 as VU’s 18th President.

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This month we’re focusing on how a person’s choice of clothing can find them in legal trouble. Fash­ion is a form of expression. However, today’s fashion issues have not had the legal impact as the Tinkers’ black arm­bands or Cohen’s jacket did during the 1970’s.

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The cases featured this month illustrate just how pervasive the law has become; it is now affecting books and cartoons.Russian youth will likely be unable to see Kyle, Cartman and the other “children” of South Park. The Prosecutor General’s office in Moscow, Russia filed a motion early this month seeking to ban the animated series “South Park,” on TV station Telekanal 2×2, claiming it violated children’s rights under international law. The station broadcasts South Park and other American shows in Moscow and St. Petersburg.

release gave several reasons for this action. It stated that the action was being taken “to remove violations and prevent abuse of freedom of mass media.” The memo cited a study which found “information products of low moral and ethical content have had a devastating impact on children, distorts their values and poses the risk of panic states and neurotic disorders.” The office alleges broadcasting the show abuses the freedom of mass media because it promotes pornography, violence and cruelty. It also stated broadcasting cartoons is incompatible with traditional principles and norms of international law intended to protect children from information which could harm their welfare, health and moral upbringing.

jurist.com, an online news publication by the University of Pittsburgh School of Law, Telekanal 2×2 struck back against the Prosecutor, issuing a statement on its blog that it disputes the charges and believes it will prevail in court.

station has been threatened due to its programming. Just recently, Telekanal 2×2 was targeted by the Russian Union of Christians of Evangelical Faith. The religious group claimed the TV station broadcast shows that incite hatred and insult religion and asked the Prosecutor to investigate. The Russian Federal Surveillance Service for Mass Communications, Communications and Cultural Heritage Protection, a government agency, reprimanded Telekanal 2×2 for its programming and suggested they remove shows.

Under former President Vladimir Putin, the Russian government began to restrict the freedom of expression in an attempt to control “extremism.” A 2006 law, for example, criminalized activities that harm “national merit” and criticize government leaders. This law applied to television broadcasting, and leaders considered restricting internet use too. Russia’s new President, Dmitry Medvedev has slightly lessened the government’s stance on the freedom of expression though. He asked lawmakers to reject a law which would allow the government to close media outlets for broadcasting libelous or scandalous stories.

And now for the opinion of the Commers Court… For several years, the Russian government has systematically reduced its citizens’ freedom of speech and expression. This is just another step in that crusade. It is a shame that Russia’s leaders are not open to expanding its citizens’ fundamental rights, especially if it might help Russia move forward.

Rowling filed the claim against Vander Ark, alleging that publishing the encyclopedia would irreparably damage her writing career. She stated that the book was “wholesale theft” in that it consisted mostly of Rowling’s original writing and provided little original content. Rowling explained she filed the claim to “uphold the rights of authors everywhere to protect their own original work.”

not be stifled, he found Vander Ark took too much of Ms. Rowling’s writing for its own purposes.

Even though the courts prevented Vander Ark from publishing his encyclopedia, Rowling has contemplated writing one of her own, with the proceeds being donated to charity. However, she told the court in April that she is unsure if she has “the will or the heart” to pursue it.

ling for fighting to ensure that another person doesn’t take advantage of her talent for their own benefit. Every author is the master of their own work product and others shouldn’t be able to leach off of them.