Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                              May 24 2013, 8:50 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                               GREGORY F. ZOELLER
Marion County Public Defender Agency             Attorney General of Indiana
Indianapolis, Indiana
                                                 KARL M. SCHARNBERG
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RANDALL DORSETT,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )     No. 49A02-1208-CR-623
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Kurt Eisgruber, Judge
                          Cause No. 49G01-1008-MR-064718




                                        May 24, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issues

       Following a jury trial, Randall Dorsett was convicted of arson, a Class B felony;

murder, a felony; and robbery, a Class B felony; and sentenced to eighty-five years.

Dorsett appeals his convictions, raising two issues for our review: 1) whether the trial

court abused its discretion in admitting DNA evidence upon finding Dorsett’s Fourth

Amendment rights were not violated in the collection of the evidence; and 2) whether the

Abstract of Judgment must be corrected. Concluding the trial court did not abuse its

discretion in the admission of evidence and that the Abstract does not require a

correction, we affirm.

                                Facts and Procedural History

       On July 17, 2008, Vyon Goodman was found shot to death in an alley in

Indianapolis. The vehicle he had last been seen driving was found some distance away,

partially burned. A gun, two cellphones, and various other items were recovered from

the vehicle. The phones were traced to Dorsett and his girlfriend, and police recovered

two unidentified male DNA profiles from one of the phones. Indianapolis Metropolitan

Police Department officer Jeffrey Wager requested and received a warrant to obtain a

buccal cell sample from Dorsett.       The warrant was served on November 16, 2008.

Analysis of the sample indicated Dorsett’s DNA matched one of the DNA profiles from

the cellphone.

       In August 2010, the State charged Dorsett with murder and felony murder, both

felonies; robbery, a Class A felony; and arson, a Class B felony. Dorsett filed a motion to

suppress the evidence obtained as a result of the November 2008 warrant on the ground

that the affidavit in support of the request for a limited arrest warrant “does not state facts
                                              2
that would warrant a reasonable person to believe that [Dorsett] had committed the

criminal act in question. Thus, there is no probable cause to support the limited arrest of

[Dorsett] and the seizure of a buccal cell swab from his person.” Appellant’s Appendix

at 66. The trial court denied the motion following a hearing. At Dorsett’s jury trial, the

DNA evidence was admitted over Dorsett’s Fourth Amendment objection. The jury

found Dorsett guilty on each count. The trial court entered judgment of conviction as to

arson, murder, and robbery as a Class B felony, and sentenced Dorsett to an aggregate

sentence of eighty-five years. Dorsett now appeals his convictions. Additional facts will

be provided as necessary.

                                         Discussion and Decision

                                           I. Fourth Amendment

                                          A. Standard of Review

        Dorsett contends the trial court abused its discretion in admitting during his trial

DNA evidence taken from a buccal swab.1 A trial court has broad discretion in ruling on

the admissibility of evidence. Packer v. State, 800 N.E.2d 574, 578 (Ind. Ct. App. 2003),

trans. denied. We will reverse a trial court’s ruling on the admissibility of evidence only

when the trial court abused its discretion. Id. An abuse of discretion occurs where the

trial court’s decision is clearly against the logic and effect of the facts and circumstances

before the court. Id. In reviewing a trial court’s ruling on the admissibility of evidence

from an allegedly illegal search and seizure, we do not reweigh the evidence, but we



        1
           Although Dorsett originally challenged the admission of the DNA evidence though a pre-trial motion to
suppress, he did not seek an interlocutory appeal of the trial court’s ruling on that motion, and therefore we are
reviewing the trial court’s admission of the evidence at trial. See Jefferson v. State, 891 N.E.2d 77, 80 (Ind. Ct.
App. 2008), trans. denied.
                                                        3
consider anew any legal question of the constitutionality of the search or seizure.

Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009).

                                   B. DNA Evidence

      Dorsett contends he was arrested in violation of the Fourth Amendment because

the State neither secured an arrest warrant nor showed probable cause to believe he had

committed a crime before arresting him for the purpose of taking a buccal cell sample.

                                       1. Warrant

      The State filed a “Request for Arrest Warrant for Limited Purpose of Obtaining a

Buccal Cell Sample.” The trial court signed a document entitled “Search Warrant.”

Dorsett contends there is no language in the “Search Warrant” authorizing him to be

taken into custody and that this means the trial court found probable cause for a search

but not for an arrest. The State justifies Dorsett’s detention by arguing that a search

warrant for bodily fluids implicitly includes the authority to bring a person into custody

for the purpose of executing the search. We agree with the State.

      Generally, detention is allowed without suspicion of any wrongdoing during the

execution of a search warrant due to three law enforcement interests related to the lawful

search: 1) officer safety, 2) accommodating the orderly completion of the search, and 3)

preventing flight. Muehler v. Mena, 544 U.S. 93, 98 (2005). Additionally, detention and

transport is permissible for collection of bodily fluids, such as blood, urine, and semen

samples. See Schmerber v. California, 384 U.S. 757, 770-71 (1966); Cutter v. State, 646

N.E.2d 704, 711 (Ind. Ct. App. 1995), trans. denied. Such searches made by medical

personnel in a medical environment in accordance with usual medical practices are

reasonable. Schmerber, 384 U.S. at 771-72.
                                             4
       In Cutter, the search warrant authorized the search of “the person of Larry Cutter”,

and authorized seizure of “[h]ead hair, pubic hair, saliva, blood and fingernail specimens,

of Larry Cutter.” 646 N.E.2d at 711. Cutter argued that the search warrant alone was

insufficient to obtain the bodily samples, because he would necessarily be seized in order

to secure the samples. However, we held that “[b]ecause police had a valid search

warrant, whether Cutter was under arrest at the time the bodily samples were obtained is

of no consequence.” Id. Implicit in this statement is the principle that a valid search

warrant authorizing the taking of bodily samples also authorizes such detention of the

subject of the warrant as is necessary to obtain the samples. Id.

       Dorsett argues that it was unnecessary to detain him in any way to obtain the

buccal swab because it was not performed, nor did it need to be performed, by a medical

professional. We disagree. Officer Wager described the extraction process in which the

buccal swab was obtained, which involved the subject rubbing a sterile plastic swab on

the inside of his cheek. The fact that it is unnecessary for medical personnel, or even a

law enforcement officer, to physically perform the extraction does not diminish the law

enforcement interests that allow for general detention during the execution of a search

warrant. In order to complete the search in an orderly manner, and for their own safety,

law enforcement must be allowed to control the environment in which a buccal swab is

taken. Law enforcement officers cannot foresee the circumstances they will encounter

when executing a search warrant to know whether they will be able to control the

environment sufficiently to obtain the sample, or whether an arrest will be necessary.

Here, Dorsett does not provide any evidence as to the place or circumstances he was in at

the time the search warrant was executed, so no independent determination can be made
                                             5
as to whether the buccal swab could reasonably have been obtained without his detention

and transport to the Marion County Jail.

       It is also important to note that, in this case, buccal swabs from multiple

individuals were taken. It is in the interest of both law enforcement and Dorsett that any

DNA evidence taken was preserved in an environment that prevented destruction or

contamination of the evidence. Transporting Dorsett to the Marion County Jail so that

Officer Wager could observe and obtain Dorsett’s buccal swab served the purpose of

both preserving the evidence and preventing its contamination.

       Thus, in order to meet the substantial law enforcement interests in executing

search warrants, and to preserve and prevent contamination of DNA evidence, the

authority to detain a person as is necessary, including an arrest for the limited purpose of

obtaining a buccal swab, is implicit in the issuance of a valid search warrant authorizing

the taking of bodily samples. While we may question whether the trial court indeed

intended to issue only a search warrant or whether the title of the warrant was a

scrivener’s error, Dorsett’s Fourth Amendment rights were not violated regardless.

                                    2. Probable Cause

       Dorsett also argues that the trial court abused its discretion in admitting the buccal

swab into evidence because the State failed to prove there was probable cause to support

the issuance of the search warrant. In ruling on Dorsett’s motion to suppress evidence,

the trial court relied heavily on Garcia-Torres v. State, 949 N.E.2d 1229, 1235 (Ind.

2011), which favorably compared the treatment of DNA evidence to fingerprints. The

trial court found that only reasonable suspicion, not probable cause, was necessary to

seize Dorsett for the purpose of obtaining a buccal swab. Although our supreme court
                                             6
suggested in Garcia-Torres that a cheek swab for DNA may not constitute a search for

Fourth Amendment purposes, it did not explicitly hold that mere reasonable suspicion

was sufficient to justify the taking of DNA evidence through a buccal swab. See id. at

1236-37. However, we need not address the appropriate standard because the trial court

found further that there was also probable cause to support the search warrant.

       A court reviewing the issuance of a warrant determines whether the magistrate had

a substantial basis for concluding that probable cause existed. Rice v. State, 916 N.E.2d

296, 301 (Ind. Ct. App. 2009), trans. denied. An affidavit that merely states the affiant’s

conclusion without enough underlying facts and circumstances to allow the magistrate to

draw his or her own conclusion is insufficient to establish probable cause. Id. A trial

court’s determination of historical fact is entitled to deferential review, although we

review the determination of probable cause de novo. Id.

       Dorsett argues that the evidence presented in support of probable cause for the

issuance of the warrant was “virtually non-existent.” Appellant’s Reply Brief at 5.

However, based upon the discovery of the cell phone in the murder victim’s burned out

vehicle, there was reason to believe that the cell phone holder was involved in the

murder. The State presented evidence that pointed to Dorsett’s connection to the cell

phone through numerous calls made to his younger sister from a number identified as

“Big D” on her phone. Police quickly learned by showing his photo around that Dorsett

was known as “D” and that Dorsett stayed at a house rented by his sister. Thus, although

the affidavit for probable cause could have been more detailed, it was still sufficient to

establish probable cause, and the search warrant was validly obtained.


                                            7
                                 II. Abstract of Judgment

       The trial court properly completed the Abstract of Judgment by showing the

correct offense for which Dorsett was found guilty, namely, robbery as a Class A felony,

but directing that a Class B felony be entered for that count. The Abstract of Judgment

shows that Dorsett “was found Guilty of the following crimes . . . : Count 1, Arson/FB,

Count 2, Murder/F, Count 4, Robbery/FA” that he was sentenced to ten years for Count

1, sixty-five years for Count 2, and ten years for Count 4, and under “additional

comments and recommendations” that “Count 4 Judgment of Conviction entered as a ‘B’

felony.” Appellant’s App. at 33. Unlike Willey v. State, 712 N.E.2d 434, 445 n.8 (Ind.

1999), where the abstract of judgment was not in accordance with the oral

pronouncement at sentencing and also led to an error on the written sentencing order,

Dorsett’s abstract of judgment accurately reflects the proceedings (the crimes of which he

was found guilty) and the oral pronouncement at sentencing (the reduction in class of

crime for the robbery conviction). Furthermore, the sentence of ten years for the robbery

count is itself reflective of a Class B felony sentence. Thus, the Abstract is accurate and

it is unnecessary to remand for correction.

                                        Conclusion

       The trial court did not err in admitting evidence from the buccal swab taken from

Dorsett as the evidence was not obtained in violation of the Fourth Amendment. Further,

the Abstract of Judgment accurately reflects the judgment of conviction.         Dorsett’s

convictions are, therefore, affirmed.

       Affirmed.

FRIEDLANDER, J., and CRONE, J., concur.
                                              8
