dissenting.
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 "[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." 384 U.S. at 767, 86 S.Ct. 1826. "[The Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. What is reasonable, of course, depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." Skinner v. Ry. Labor Ex*280ecutives' Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 108 L.Ed.2d 639 (1989) (citation and quotation marks omitted). "'Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, ... reasonableness generally requires the obtaining of a judicial warrant [and] ... the showing of probable cause required by the Warrant Clause'" Shabazz, 200 F.Supp.2d at 583 (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995)) (alterations in Shabazz ). "However, under certain cireumstances, searches and seizures may be permissible under the Fourth Amendment 'based on suspicions that, although "reasonable," do not rise to the level of probable cause'" Id. (quoting New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)).
In Shabazz, upon which the majority relies in concluding that a cheek swab may be conducted upon reasonable suspicion, the District Court of South Carolina denied the appellant's motion to quash a subpoena requiring her to "provide an oral sample of her saliva for DNA testing." Id. at 5808 The analysis reads in pertinent part as follows:
[Appellant] argues that "Schmerber and its progeny" require a showing of "probable cause" because the saliva sample is an "invasive procedure." In Schmerber, the Supreme Court held that a police blood test for the purpose of determining a suspected drunken driver's alcohol content was "reasonable" because the evidence of aleohol in the blood would disappear during the time necessary to obtain a search warrant. 384 U.S. at 770-71, 86 S.Ct. 1826(, 16 L.Ed.2d 908]. Alithough the Court upheld the warrantless search, it noted the existence of probable cause. See id. at 770, 86 S.Ct. 1826[, 16 L.Ed.2d 908]. The Court explained that "[the interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained." Id. at 769-70, 86 S.Ct. 1826[, 16 L.Ed.2d 908]. Accordingly, the Court reasoned that "search warrants are ordinarily required ... where intrusions into the human body are concerned." Id. In Winston v. Lee, 470 U.S. at 753, 105 S.Ct. 1611[, 84 LEd.2d 662], the Court held that a state court order directing Lee, who had been arrested and charged with robbery, to undergo surgery to remove the bullet lodged under his left collarbone was an "unreasonable" search under the Fourth Amendment. The Court explained that although "the reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interest in privacy and security are weighed against society's interests in conducting the procedure," the "threshold requirement" was the existence of probable cause. Id. at 760, 105 S.Ct. 1611[, 84 L.Ed.2d 662].
This case, however, is distinguishable from Schmerber and Winston on two grounds. Most important, neither of those cases involved a grand jury subpoena; therefore the grand jury's exemption from the "probable cause" standard was not applicable. Moreover, the privacy concerns that led the Court to require probable cause in those cases are not as pronounced in this case because a saliva swab is not as intrusive as a blood test or a surgical bullet-removal procedure. The Court in Winston de*281scribed the Schmerber test as applicable to "surgical intrusions beneath the skin." 470 U.S. at 760, 105 S.Ct. 1611[, 84 L.Ed.2d 662]. Although the saliva swab involves a slight invasion of a person's bodily integrity, it is not a "surgical procedure" and therefore does not fall within Schmerber's threshold requirement of probable cause. Id. Thus, no showing of probable cause is needed before the grand jury may issue a subpoena duces tecum requiring Petitioner to submit a saliva sample.
Id. at 583-84 (citation omitted).
While it may be true, as the Shabazz court stated, that a cheek swab involves only "a slight invasion of a person's bodily integrity," the intrusiveness of the search procedure is not dispositive of whether the search is reasonable. Under the Fourth Amendment, we must also consider "the nature of the privacy interest upon which the search intruded." Kopkey v. State, 743 N.E.2d 331, 337 (Ind.Ct.App.2001) (citing Vernonia, 515 U.S. at 654, 115 S.Ct. 2386), trans. denied. It is difficult to imagine a more intrusive invasion of an individual's personal privacy than a DNA search, and the potential consequences of such a search are much more significant than the majority suggests. Whereas a field sobriety test reveals only whether a driver currently is intoxicated, and a pat-down search reveals only whether a suspect currently is armed or possesses contraband,9 a cheek swab may reveal not only whether the suspect has committed the crime at issue, but also whether he has committed other crimes for which DNA evidence has been collected. Moreover, a cheek swab may reveal legally significant information regarding paternity or maternity, as well as information regarding genetically influenced diseases, conditions, and behaviors, none of which are relevant to a law enforcement purpose. Under these circumstances, I believe that a cheek swab of a custodial suspect is reasonable under the Fourth Amendment only if probable cause exists to conduct such a search10 Cf. Balding v. State, 812 N.E.2d 169, 173-74 (Ind.Ct.App.2004) (holding that compulsory cheek swab of incarcerated convicted offender for inclusion in state DNA database was reasonable search under Fourth Amendment, in that offender "possessed a reduced expectation of privacy and the character of intrusion ... was minimal, and ... the State's interest was substantial in creating a DNA database").
Assuming for argument's sake that probable cause existed to conduct the search in this ease, the search was unreasonable because the police did not obtain a warrant.11 See VanPelt v. State, 760 *282N.E.2d 218, 221 (Ind.Ct.App.2001) ("Searches and seizures that occur without prior judicial authorization in the form of a warrant are per se unreasonable, unless an exception to the warrant requirement applies."), trans. denied (2002). The State contends that no warrant was necessary because Garcia-Torres voluntarily consented to the search. I disagree.
Warrant considerations aside, I agree with the majority that there is "little doubt that Garcia-Torres was in custody when he was requested to give the cheek swab[.]" Op. at 275. As such, Garcia-Torres was entitled to be "be informed of the right to consult with counsel about the possibility of consenting to such a search" pursuant to Pirtle: Jones, 655 N.E.2d at 54. He was not. It is worth noting that Pirtle and the ensuing Indiana Supreme Court cases that mention Pirtle do not distinguish between searches requiring probable cause and searches requiring only reasonable suspicion. If our supreme court wants to carve out an exeeption to the rule it announced in Pirtle, that is its prerogative, not ours.
In sum, the trial court erred in admitting the DNA test results obtained as a result of the cheek swab. The State contends that any such error was harmless. Again, I disagree. Consequently, I would reverse Garcia-Torres's convictions and remand for a new trial12 See Hirshey v. State, 852 N.E.2d 1008, 1014 (Ind.Ct.App. 2006) ("Retrial following reversal for improperly admitted evidence does not violate the Double Jeopardy Clause so long as all the evidence, even that erroneously admitted, is sufficient to support the jury verdict.") (citation and quotation marks omitted), trans. demied.
On remand, Garcia-Torres should be entitled to severance of the charges against him as a matter of right pursuant to Indiana Code Section 35-34-1-11(@a).13 To me, it is patently obvious that the offenses were joined solely on the basis that they are of the same or similar character. I do not believe that the State established that a common modus operandi linked the two assaults. Unlike in Segundo, 270 S.W.3d 79, upon which the majority relies, the DNA evidence in this case was not recovered from both victims' sexual organs. The DNA evidence from the second assault was recovered from a shoe, which also contained DNA from someone other than Garcia-Torres. See Tr. at 358-68 (testimony of Indiana State Police forensic biologist Leslie Harmon). Moreover, the perpetrator of the first assault rang the victim's doorbell to gain entry to her home, whereas the perpetrator of the second assault-which occurred nearly one year later-climbed through the victim's bedroom window. As for the fact that both victims were young female students who lived within half a mile of each other, this commonality is hardly surprising given that the assaults were committed in a relatively small college town.
*283More fundamentally, I believe that it is illogical to argue that because the DNA evidence suggests that Garcia-Torres committed both assaults, the methodology of the crimes is so strikingly similar that one can say with a reasonable certainty that the same person committed them. Such an approach stands the modus operandi inquiry on its head and results in the exception consuming the rule.14
For the foregoing reasons, I respectfully dissent.
. Shabazz was "under investigation by the F.B.I. for allegedly engaging in sexual relations with inmates and for extortion related to this misconduct." Shabazz, 200 F.Supp.2d at 580.
. See Burkett v. State, 785 N.E.2d 276, 278 (Ind.Ct.App.2003) ('The seizure of contraband detected during a Terry search for weapons is permissible under the 'plain feel doctrine.' If during the lawful patdown of the suspect's outer clothing, the officer feels an object whose contour or mass makes its identity as contraband immediately apparent to that officer, a warrantless seizure may be executed.") (citations and some quotation marks omitted).
. Garcia-Torres does not raise a state constitutional argument. Nevertheless, I believe that probable cause also would be required under Article 1, Section 11 of the Indiana Constitution.
. Unlike a person's blood alcohol level, which "diminishfes} shortly after drinking stops," Schmerber, 384 U.S. at 770, 86 S.Ct. 1826, "DNA does not change throughout the life span of a person." Tr. at 331 (testimony of Indiana State Police forensic biologist Leslie Harmon). Thus, the exigent circumstances exception to the warrant requirement may arise less frequently in cases involving cheek swabs. See, eg., Frensemeier v. State, 849 N.E.2d 157, 161 (Ind.Ct.App.2006) ("One well-recognized exception to the warrant requirement is when police have probable cause *282for the search and exigent circumstances exist rendering obtaining a warrant impractical. One such exigent circumstance that justifies a warrantless search occurs when incriminating evidence is in jeopardy of being destroyed or removed unless immediate action is taken.") (footnote and citation omitted), trans. denied.
. I agree with the majority that the DNA evidence was not inextricably bound to Garcia-Torres's suppressed confession.
. In my view, the issue raised on appeal is more properly framed as whether the trial court abused its discretion in denying Garcia-Torres's motion to sever the charges, rather than whether "the charges against Garcia, Torres were properly joined[,]" as the majority states. Op. at 270.
. Unlike the antique silver crossbow mentioned in Segundo, DNA is not evidence of a distinctive "method of working" that tends to establish identity, but rather evidence of identity per se-that is, an end, rather than a means.