Untitled Texas Attorney General Opinion ( 1957 )

THICA~ORNEY GENERAL
OFTEXAS
AUSTWJ 11. TEXAU
WILL WILSON
A-I-X-• GHXERAI.
June 24, 1957
Honorable William J, Gillespie Opinion W-169.
County ,Attorney
Lubbock County Be: The use of force by
Lubbock, Texas law enforcement off i-
cers in exacting
fingerprints from a
Dear Sir: person legally arrested.
Your opinion request of May 28, 1957, presents the
following quest ions :
1. May law enforcement officers forcibly
take fingerprints from a person legally arrested?
2. In the alternative, may law enforcement
officers hold a prisoner until he voluntarily
submit s to giving fingerprints?
In Qw nsbv + Mo rls. et a& * , 79 S.W.2d 934 (Tex.Civ.
APP., 19351, th: defeldantrpermitted his fingerprinting and
photographing under protest. The court stated at page 935:
I,
. we do hold that a peace officer who
has good’c&se to believe and does believe that
a person is then compounding a crime, for which
the officer will be under duty to procure his ar-
rest, may detain him, take his fingerprints, have
him photographed, and otherwise identify him, for
the protection of society, without being liable
for damages by reason of such official acts.
“In the case at bar, appellant was so de-
tained and, after being photographed, etc., was
permitted to leave.”
In Bartletta v. McFeela,
107 N.J.Eq. 141, 152 A. 17
(19301, aff Id. on other grounds, 109 N.J.Eq. 241, 156 A. 658
(19311, the defendant thrust his hands into his pockets and de-
clared that the prints of his fingers should not be taken. Af-
ter some discussion, he submitted, under protest, and upon the
advice of his counsel, and the officer in charge made the finger-
prints. The court held:
- .
Honorable William J. Gillespie, page 2 (~4-169)
Vounsel for the complainant contends that
it is unlawful for the police in any case to
photograph or fingerprint an accused person be-
fore trial and conviction except under the con-
sent of the prisoner. I am convinced that this
is not the law. The police are charged with the
duty of preventing crime) apprehending criminals,
and gathering evidence upon which they may be
brought to trial. In the performance of this duty,
they may use any apt and reasonable means which
do not invade the rights of the accused or of
other persons. Fanciful rights of accused persons
cannot be allowe,d to prevent the functioning of
the police and so to jeopardize the safety of the
public. . . .”
The court stated further:
I,. . . Whether any certain prisoner is to be
fingerprinted and photographed is an administra-
tive question to be determined by the head of the
police department making the arrest, or by those
subordinates to whom he may delegate the decision.
. . . II
The Court of Criminal Appeals of Texas, in Conne V
State, 134 Tex. Crim. 278, 115 S.W.2d 681 (19381,held thatrzd-’
mission of proof of taking of defendant’s fingerprints while he
was under arrest did not violate the provision of the Bill of
Rights in the Texas Constitution (Art. I, Sec. 10) which pro-
vides that an accused cannot be required to give evidence against
himself.
One of the leading cases on fingerprinting is United
States v. Kelle 55 Fed.2d 67 (2nd Cir., 1932), with the opinion
by Judge August& N. Hand. Applicable language from this deci-
sion is:
“We find no ground in reason or authority for
interfering with a method of identifying persons
charged with crime which has now become widely
known and frequently practiced both in jurisdictions
where there are statutory provisions regulating it
and where it has no sanction other than the common
law.
“The appellee argues that many of the statutes
and the decisions in common-law states have allowed
Honorable William J. Gillespie,, page 3 (~~-169)
finger printing only in case of felonies. But 9
as a means of identification, it is just as use-
ful and important where the offense is a misde-
meanor, and we can see no valid basis for a dif-
ferent iation. In neither case does the interfer-
ence with the person seem sufficient to warrant
a court in holding finger printing unjustifiable.
It can really be objected to only because it may
furnish strong evidence of a manls guilt. It is
no more humiliating than other means of identifi-
cation that have been universally held to infringe
neither constitutional nor common law rights.
Finger printing is used in numerous branches of
business and of civil service, and is not in it-
self a badge of crime. As a physical invasion it
amounts to almost nothing, and as a humiliation
it can never amount to as much as that caused by
the publicity attending a sensational indictment
to which innocent men may have to submit.
11. . . We prefer, however, to rest our de-
cision upon the general rights of the authorities
charged with the enforcement of the criminal law
to employ finger printing as an appropriate means
to identify criminals and detect crime.
“The taking of photographs and fingerprints
cannot be regarded as a penalty. If it were, such
records could never be made. An accused cannot
be punished before trial, nor, in the absence of
special statutes, could such a ‘penalty’ be included
in the sentence after conviction. In this regard,
taking photographs and fingerprints must be con-
sidered the same as eny other administrative proced-
ure of the police to which an individual must, at
times, be subjected for the common good.”
The exaction of fingerprints by law enforcement offi-
cers over the objection of a person legally arrested does not
violate the privilege against self-incrimination, nor does it
violate individual privacy.
Since an objection to fingerprinting by a person le-
gally arrested is to no avail, law enforcement officers may em-
ploy such force as is reasonably necessary to accomplish the
fingerprinting.
Since fingerprints may be exacted by law enforcement
officers, using such force as is reasonably necessary, and since
Honorable Villiam J. Gillespie, page 4 (~-169)
the second question asked is phrased in the alternative, its
answering is unnecessary.
Law enforcement officers may use such force
as is reasonably necessary in the exaction of
fingerprints from a person legally arrested.
Very truly yours,
WILL WILSON
Attorney General of Texas
John Ii. Lennan
JRL:pf:wb Assistant
APPROVED:
OPINION COMMITTEE:
H. Grady Chandler, Chairman
Jas. H. Rogers
John H. Minton, Jr.
Jack Goodman
REVIFWEDFOR TRE ATTORNEYGENERAL
BY: Geo. P. Blackburn