IN: Taking DNA during investigation required only reasonable suspicion

Taking a DNA sample as an investigative tool only required reasonable suspicion under Fourth Amendment and state constitution. Garcia-Torres v. State, 2009 Ind. App. LEXIS 2043 (September 30, 2009):

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.

The United States District Court for the District of South Carolina has reached the same conclusion. See In re Shabazz, 200 F. Supp. 2d 578, 585 (D.S.C. 2002). The Shabazz Court concluded that collection of a saliva sample by cheek swab lies somewhere between a “surgical procedure” involving a protrusion under the skin, which requires a showing of probable cause, and things such as the collection of voice samples, handwriting exemplars, and fingerprinting, which are not even searches subject to the Fourth Amendment. Id. at 582, 584 (citing Schmerber, 384 U.S. at 767). Although the Shabazz Court concluded that particularized suspicion was required before a saliva swab could be administered, it also concluded that a saliva swab did not rise to the level of a “surgical procedure” under Schmerber. Id. at 584. It followed, then, that the existence of reasonable suspicion would suffice. Id.

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. … These objective facts, taken together, support a reasonable suspicion that Garcia-Torres was S.P.’s attacker, thereby justifying the cheek swab.

Nighttime knock and talk was more than minimally intrusive, but officers were not in the house and there were no consequences from failure to respond. Therefore it was reasonable under the Fourth Amendment and the state constitution. Brown v. State, 913 N.E.2d 1253 (Ind. App. 2009).*