SHEPHARD, C.J.
Arturo Garcia-Torres was convicted of rape, attempted rape, and two counts of burglary and was sentenced to thirty-six years in prison. Garcia-Torres challenges the use of DNA evidence gathered when police obtained a cheek swab. The parties having passed over the question whether the swab was a search requiring separate probable cause, we analyze the issue under ordinary doctrine of the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution. We affirm the conviction.
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The obvious threshold question is whether a cheek swab taken from a person under arrest is a search requiring its own separate warrant or other justification. A cheek swab can be analogized to two lines of cases, those governing intrusions into the body, which suggest that a cheek swab is a search, and those governing fingerprinting and other physical identifiers, which suggest that a cheek swab is not a search. Most courts that have addressed the constitutionality of cheek swabs have concluded that a cheek swab is a “search” for the purpose of the Fourth Amendment, and have reached this conclusion with relatively little discussion. See, e.g., United States v. Pool, 621 F.3d 1213 (9th Cir. 2010); Louisiana v. Lee, 976 So. 2d.109, 124 (La. 2008).
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Fourth Amendment principles seem to suggest that DNA has more in common with fingerprints than it does with blood alcohol content, but like many courts, the parties to this appeal have taken for granted that the swab was a search requiring its own separate probable cause proceedings, even for a suspect in lawful custody for rape. We thus proceed to the State’s leading defense of admitting the DNA evidence – that Garcia-Torres consented to the cheek swab.
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Looking at the totality of the circumstances, we hold that Garcia-Torres’s consent was voluntary. As such, the swab was not a violation of the Fourth Amendment.
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Garcia-Torres argues that he was entitled to a Pirtle advisement before the swab was taken. In Pirtle v. State, we held that a person held in police custody is entitled to the presence and advice of counsel prior to consenting to a search and that the right, if waived, must be explicitly waived. 263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975).
As a threshold matter we must determine whether Garcia-Torres was in custody when he was asked to consent. Although there is some uncertainty whether Garcia-Torres was in custody when initially brought to the police station, he was clearly in custody when the swab was taken. After confessing to breaking into S.P.’s apartment and attempting to rape her, Garcia-Torres asked whether he would be detained. The officers told him that they would indeed be detaining him. The swab was taken after this exchange.
Our constitutional protections are intended to protect people from the most serious intrusions into privacy. Pirtle itself involved one of the weightiest of these interests – the search of a home. Officers arrested Pirtle for possessing a stolen car and gave him his Miranda rights. At the police station Pirtle asked for an attorney. Later, another officer who was unaware that Pirtle had asked for an attorney began to question Pirtle about an unrelated murder. The officer asked for consent to search Pirtle’s home, and he gave it and signed a search waiver. Police found evidence implicating him in the murder. Pirtle, 263 Ind. at 22–23, 323 N.E.2d at 637. We suppressed the evidence on grounds that Pirtle was not advised that he had the right to consult an attorney about giving consent to search.
Pirtle and the ensuing cases have applied this rule only to the weightiest intrusions. This Court has suppressed evidence based on Pirtle when the police searched either a home or a vehicle. E.g., Pirtle, 263 Ind.16, 323 N.E.2d 634 (home search); Sellmer v. State, 842 N.E.2d 358 (Ind. 2006) (vehicle search). The Indiana Court of Appeals has held that Pirtle does not apply to certain minimally intrusive searches. Wilkerson v. State, 933 N.E.2d 891 (Ind. Ct. App. 2010) (Pirtle not applicable to pat down for weapons permissible under Terry v. Ohio, 392 U.S. 1 (1968)); Datzek v. State, 838 N.E.2d 1149, 1158–60 (Ind. Ct. App. 2006) (Pirtle does not apply to chemical blood testing for blood alcohol content); Schmidt v. State, 816 N.E.2d 925, 942–44 (Ind. Ct. App. 2005) (Pirtle does not apply to chemical breath tests); Ackerman v. State, 774 N.E.2d 970, 979–82 (Ind. Ct. App. 2002) (Pirtle does not apply to field sobriety tests).
As in those cases, the intrusion here is slight. The swabbing caused no discomfort, and Garcia-Torres has virtually no legitimate interest in concealing his identity following his lawful arrest. This Court has long held that the police are allowed to take fingerprints and other identifying physical information from those lawfully arrested. Palmer v. State, 679 N.E.2d 887, 892 (Ind. 1997) (fingerprinting); State ex rel. Bruns v. Clausmeier, 154 Ind. 599, 601–02, 57 N.E. 541 (1900) (other physical identifying information). “[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it.” Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992).
The various interests at stake on occasions when we have required a Pirtle advisement are not present here, so we do not extend that rule to these circumstances.
Conclusion
Therefore we affirm the judgment of the trial court.
Dickson, Sullivan, and David, JJ., concur.
Rucker, J., dissents with separate opinion.
Rucker, J., dissenting.
At stake in this case is whether a person in police custody is entitled to be advised of his right to the assistance of counsel before consenting to a buccal swab for DNA. The majority says no. I respectfully disagree.
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In sum, it is clear to me that a buccal swab for DNA is a search within the meaning of the Fourth Amendment to the United States Constitution as well as Article 1 Section 11 of the Indiana Constitution. Because the search in this case was conducted without a warrant it was illegal and therefore unreasonable as a matter of law unless an exception applied. The only applicable exception in this case was consent to search, which the defendant gave. Thus there was no federal constitutional violation. But, the Indiana Constitution provides greater protection than the Federal Constitution. And under our state constitution the investigating officer was required to advise Garcia-Torres that he had a right to consult with his lawyer before consenting to the search. Because no such advisement was given, the consent was invalid as a matter of Indiana law. The evidence obtained thereby was thus inadmissible, and accordingly the trial court was required to grant Garcia-Torres‟ motion to suppress the evidence. I therefore dissent and would reverse the judgment of the trial court and remand this cause for a new trial.