Garcia-Torres v. State

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. Also, I believe that Garcia-Torres was entitled to severance of the charges against him as a matter of right. Therefore, I respectfully dissent.

To reiterate, the U.S. Supreme Court stated in Schmerber that…