Can a court order a suspect to use the suspect’s fingerprint to unlock his or her smartphone? Or would that violate the suspect’s Fifth Amendment privilege against self-incrimination? I wrote about that issue here. This post updates the previous one with two new cases and some additional discussion. Continue reading
Tag Archives: fingerprints
This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses. Continue reading →
From time to time, an officer or a magistrate asks how to respond when a defendant who is properly subject to fingerprinting under G.S. 15A-502 refuses to be fingerprinted. There are at least three good ways to address this situation:
First, the magistrate can make fingerprinting a condition of release. This is probably permitted under G.S. 15A-534, which allows magistrates a broad authority to “place restrictions on the . . . conduct . . . of the defendant as [a] condition of pretrial release.” Perhaps that statute could be read to allow a magistrate only the power to regulate the defendant’s conduct while out on release, as opposed to his conduct necessary to be released, but I think a court would probably rule otherwise. Again, this procedure is probably permitted in the case of a defendant who refuses to, or is unable to, produce identification. See Jessica Smith, Criminal Procedure for Magistrates, Administration of Justice Bulletin 2007/06, at 13.
Second, the officer can attempt to induce compliance by threatening to have the defendant charged with resisting an officer. Such a charge would be proper given the officer’s duty to take the defendant’s fingerprints. Cf., e.g., People v. Hasenflue, 169 Misc. 2d 766, 648 N.Y.S.2d 254 (N.Y. Sup. 1996) (“[T]he defendant’s alleged conduct of refusing to be fingerprinted and his attempt to leave . . . could have given rise to a charge of Obstructing Governmental Administration in the Second Degree,” a charge apparently similar to the North Carolina offense of resisting an officer). Of course, some defendants may not comply despite the threat of additional charges.
Finally, the officer can probably take the defendant’s fingerprints using reasonable force. This is permitted for nontestimonial identification orders, see G.S. 15A-279(b), and would probably be permitted in the booking context as well. Cf., e.g., Ritchie v. Erie County Prison, 2005 WL 3019128 (W.D. Pa. Oct. 26, 2005) (unpublished) (recommending summary judgment in favor of defendants in civil suit regarding use of force to fingerprint inmate; court concludes that “[t]he evidence demonstrates that there was a need for the application of force in that Plaintiff had repeatedly refused to be fingerprinted”). However, because of civil liability concerns, officers may be reluctant to do this.
There are other solutions that might be permissible, like delaying the defendant’s initial appearance until he agrees to be fingerprinted, but the three above are the ones that I think are the most clearly allowed. If anyone has a different way of addressing this problem, please share it by posting a comment.
Several stories of interest to readers of this blog have appeared over the last several days. First, the Winston-Salem Journal, in an editorial available here, is asking the General Assembly to take a close look at the death penalty, and to impose a moratorium while it does so. Of course, as the editorial notes, we already have a de facto moratorium. Even after the state supreme court’s recent decision, available here, holding that the North Carolina Medical Board can’t discipline physicians who participate in executions, there is still pending litigation over the state’s execution protocol and whether it was properly adopted by the Council of State.
Second, there has apparently been an explosion in the number of cell phones in prison. A story available here asserts that literally thousands of cell phones were confiscated in California’s prison system last year, and addresses possible solutions, including (1) stiffer penalties for those who use the phones, and (2) jamming cell phone signals within prisons. The issue apparently exists here in North Carolina, too, since S167, available here, would make it a crime to provide a prison inmate with a cell phone. One question I have about this whole issue is to what extent inmates use cell phones to avoid having their phone calls monitored, and to what extent they use them to avoid the incredibly high charges associated with prison pay phones. (An interesting story on the pricing issue is here — but I should add that my recollection from my time in private practice is that calls in North Carolina are significantly more expensive than the California calls described in the story.)
Third, a New York Times story, here, will be of interest to those concerned about forensic science. The gist of the article is that scientists are hard at work evaluating some of the techniques — such as fingerprint analysis — that have long been used but without much scientific validation. The article refers to a National Academy of Sciences report, about which I previously blogged here. Hopefully some of this new research will improve the reliability of forensic techniques used in criminal cases.
Finally, a Wisconsin court recently addressed a topic of particular interest to me, holding that the police may install a GPS tracking device on a vehicle and monitor it without committing a Fourth Amendment search, i.e., without a warrant or any level of individualized suspicion. Story here. This is consistent with what most other courts have done — see my paper on the use of GPS tracking devices, available here as a free download — though we are still awaiting the first North Carolina appellate case on point. Stay tuned.
An interesting article appeared yesterday in the New York Times. You can read it here, but the gist of it is that the federal government and about 15 states are now collecting DNA from people who are charged with certain crimes, usually felonies, even if the individuals are not convicted. As the article observes, this raises some interesting legal questions, including whether the routine seizure of DNA from defendants who are not convicted violates the Fourth Amendment. There’s a Congressional Research Service report on this issue, available here, which concludes as follows:
This expansion is likely to alter the Fourth Amendment analysis in DNA collection cases. In cases upholding DNA collection laws, courts relied in part on the reduction in privacy rights that accompanies post-conviction punishment under Fourth Amendment precedent. For people whom the government has arrested but not yet convicted, it appears that this reduction in privacy rights either does not apply or applies to a lesser extent.
North Carolina law currently provides for the routine collection of DNA only of convicted defendants. See G.S. 15A-266.4 (providing for the collection of DNA upon conviction of any felony, assault on a handicapped person, stalking, or sexual battery). As far as I can tell, the statute has never been challenged, and challenges to similar statutes in other jurisdictions have generally been rejected. Courts uphold DNA collection from convicted defendants either on a “special needs” rationale or on a Terry-esque theory that the minimal intrusion of a blood draw is justified by the substantial benefit to law enforcement in maintaining a DNA database. See Wayne R. LaFave, Search and Seizure, s. 5.4(c) (4th ed. 2004).
Soon, however, North Carolina may jump on the bandwagon of collecting DNA from people who are charged but not convicted. HB 1403 would require the collection of a DNA sample upon arrest; you can see the current version of the bill here. (While we’re on the subject of DNA and the General Assembly, HB 1190 would alter the rules for retaining and preserving DNA and other biological evidence; it makes some substantial changes and clarifications and is probably worth a gander, especially as it has bipartisan sponsorship. You can see it here.)
This sets up a possible Fourth Amendment showdown, but the conclusion of the Congressional Research Service isn’t the only plausible view. Consider the fact that North Carolina, like many other states, permits the collection of other identifying information from people who have been charged but not convicted. For example, G.S. 15A-502 provides that any arrestee may be fingerprinted and photographed, even if arrested for a misdemeanor, regardless of the disposition of the case. And it requires that defendants who are charged with felonies shall be photographed and fingerprinted, again, regardless of disposition. I’m not aware of any great controversy about fingerprinting, and I can imagine a court concluding that taking DNA (or “genetic fingerprinting) isn’t really any different.
What do you think? Leave a comment to weigh in.