HERSCHEL L. FAGAN, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-2094

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Military Appeals

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the Court of Military Appeals (Pet. App. 1a-13a) is
reported at 28 M.J. 64.  The opinion of the Navy-Marine Corps Court of
Military Review (Pet. App. 14a-28a) is reported at 24 M.J. 865.

                             JURISDICTION

   The Court of Military Appeals entered its judgment on April 28,
1989.  The petition for a writ of certiorari was filed on June 26,
1989.  The jurisdiction of this Court is invoked under 28 U.S.C.
1259(3) (Supp. V 1987).

                          QUESTION PRESENTED

   Whether the Fourth Amendment is violated when a service member is
ordered by a superior to report to military law enforcement
authorities for fingerprinting.

                               STATEMENT

   Following a general court-martial, petitioner, a member of the
United States Marine Corps, was convicted on two specifications of
larceny, on one specification of burglary, and on one specification of
housebreaking, in violation of Articles 121, 129, and 130 of the
Uniform Code of Military Justice (UCMJ), 10 U.S.C. 921, 929, and 930.
Petitioner was sentenced to confinement for five years, a bad-conduct
discharge, forfeiture of all pay and allowances, and a reduction in
rank to pay grade E-1.  The convening authority approved the findings
and sentence.  The Navy-Marine Corps Court of Military Review affirmed
the findings and sentence.  The Court of Military Appeals granted
discretionary review and affirmed.

   1. Early in 1985, a rash of burglaries occurred in petitioner's
battalion.  Tr. 21.  An investigation revealed latent fingerprints in
two of the rooms that had been burglarized.  Tr. 8-9.  /1/ Despite a
heightened state of awareness, no one reported seeing any outsider in
the area of the burglaries.  Tr. 9.  This led Naval Investigative
Service (NIS) Special Agent Michael Shevock to believe that the crimes
were committed by a member of the battalion who had remained behind
when the battalion left for training maneuvers.  Ibid.  Agent Shevock
therefore decided to fingerprint the approximately 100 Marines who had
remained behind.  Ibid.  After receiving permission from the
battalion's commanding officer, and with the help of Lieutenant
Haddock, an officer detailed for his assistance by the commanding
officer, Agent Shevock began the fingerprinting process.  Ibid.  Under
the procedure, Agent Shevock would ask Lieutenant Haddock for a given
number of men, usually 15-20, without specifying their names.  Ibid.
Lieutenant Haddock would then select individuals in such a way as to
cause the least amount of inconvenience to the battalion.  Tr. 9-10.

   By March 29, 1985, petitioner was the only Marine who still had not
been fingerprinted.  Tr. 9.  When informed of that fact, Gunnery
Sergeant Vasquez told petitioner to report to the NIS office for
fingerprinting.  DX A.  When petitioner appeared reluctant to comply,
Sergeant Vasquez ordered petitioner to report to the NIS.  Ibid.
Petitioner then went to the NIS office.  Tr. 27.

   When Agent Shevock attempted to take petitioner's fingerprints, the
agent discovered that the pads of petitioner's ten fingers had been
severely scraped.  Tr. 10.  The skin was swollen and torn and would
not leave a readable impression on the card.  Agent Shevock did
notice, however, that the print of one finger featured a conspicuous
"double loop pattern" that "bore a striking and conspicuous
resemblance" to a latent print he had lifted from one of the rooms.
Based on that evidence, Agent Shevock suspected that petitioner had
committed the crime.  He read petitioner his rights and then
interrogated petitioner about the burglaries.  Petitioner denied any
knowledge of the incidents.  Petitioner also willingly agreed to have
his hands photographed.  Ibid.  Petitioner was not placed under arrest
at that time, and Agent Shevock assured petitioner that he was free to
go whenever he liked.  Tr. 15.

   Four months later, on August 2, 1985, Agent Shevock went to Tripler
Army Medical Center, where petitioner was a patient, in order again to
attempt to fingerprint petitioner.  Tr. 11, 17.  Petitioner refused to
be fingerprinted, however, even after Agent Shevock had a petty
officer from the Navy liaison office order petitioner to allow his
fingerprints to be taken.  Agent Shevock then abandoned the attempt.
Tr. 11.  He decided to return when petitioner was released from the
hospital and to arrest him, if necessary, in order to obtain his
fingerprints.  On August 6, Agent Shevock went back to the hospital.
Tr. 11, 17.  When he arrived, however, he learned that petitioner was
at the NIS office waiting to be fingerprinted.  Tr. 12.  The NIS
matched petitioner's fingerprints to two prints taken from the scene
of the crime.  Petitioner later made an inculpatory statement
regarding the crimes, on October 1, 1985.  Ibid.

   2. At trial, petitioner sought to suppress the fingerprints taken
on March 29 and August 6, 1985, the photographs taken of his hands,
and the statements he made to the NIS on March 29 and October 1, 1985.
 AX 1.  The trial judge, relying on Hayes v. Florida, 470 U.S. 811
(1985), originally suppressed the fingerprint evidence, Tr. 43, but
later reconsidered his decision and denied petitioner's motion.  AX 7.
 The judge reasoned that petitioner had no privacy interest in his
fingerprints, because they were on file with the military.  Ibid.  /2/
The judge also found that there was probable cause to arrest
petitioner once Agent Shevock noticed the similarity between
petitioner's fingerprints and one of the latent fingerprints.  Ibid.

                               ARGUMENT

   Petitioner contends that the trial court erred by allowing his
fingerprints to be admitted in evidence at trial.  Petitioner argues
that his fingerprints were obtained as a result of an unlawful
seizure, because Gunnery Sergeant Vasquez ordered him to report to NIS
headquarters without probable cause to believe that he had committed
the burglaries.

   Petitioner does not claim that he could not be fingerprinted in the
absence of probable cause, and no such claim could properly be
asserted.  Fingerprinting is not nearly as intrusive as actual
invasions into the body, such as the extraction of blood, see
Schmerber v. California, 384 U.S. 757 (1966), or body cavity searches,
see Bell v. Wolfish, 441 U.S. 520 (1979).  Nor is it as intrusive as
having one's fingernails scraped for evidence, see Cupp v. Murphy, 412
U.S. 291 (1973), being compelled to provide a urine sample, see
Skinner v. Railway Labor Executives' Ass'n, 109 S. Ct. 1402 (1989), or
being stopped and frisked by a police officer on a public street, see
Terry v. Ohio, 392 U.S. 1 (1968).  Rather, the intrusion occasioned by
being fingerprinted is minimal, Davis v. Mississippi, 394 U.S. 721,
727 (1969), and is not materially different from the compelled
production of voice and handwriting samples, see United States v.
Dionisio, 410 U.S. 1 (1973);  United States v. Mara, 410 U.S. 19
(1973), neither of which entails significant inroads upon privacy.
Indeed, military regulations require that all applicants for the armed
forces must be fingerprinted before they enter the military, both to
ensure that the applicant does not have a criminal record and for
identification purposes.  Tr. 57-58.  See also Marine Corps Order No.
P1100.75(b), at 2-1 para. 2-1(e) (Apr. 15, 1986).  Petitioner
therefore had no reason to believe that the Marine Corps could not
take his fingerprints at any time.

   Moreover, the military is a separate and distinct society, Parker
v. Levy, 417 U.S. 733, 743 (1974), and servicemembers commonly
experience restrictions on their freedom of movement that are foreign
to ordinary citizens.  Unlike civilian society, where citizens are
generally entitled to go on their way without interference, military
society necessarily limits the freedom of movement of servicemembers
in the interests of discipline and readiness.  Thus, while it would be
constitutionally unacceptable in the civilian community for the police
to direct the daily movements of private citizens, the movements of
military personnel are almost completely controlled by their
superiors, and criminal sanctions may be imposed on servicemembers who
fail to obey a lawful order.  See Arts. 85, 86, 87, and 90-92, UCMJ,
10 U.S.C. 885, 886, 887, and 890-892.  See generally Pet. App.
11a-12a.  And as part of their military obligations, servicemembers
may be called upon to assist in the investigation of a crime.  See
United States v. Schneider, 14 M.J. 189, 192 (C.M.A. 1982).  /3/

   Those principles dispose of this case.  Petitioner could have been
fingerprinted at any time, in his barracks or elsewhere.  Petitioner
also could have been ordered to go to another part of the base.  And
petitioner could have been ordered to assist the NIS in its
investigation.  Thus, the order to petitioner to report to the NIS
office for fingerprinting imposed no additional (and certainly no
unlawful) burden on him that could not have been imposed in the
absence of any suspicion that he was involved in the burglaries at
all.  It is therefore immaterial that petitioner was ordered to report
to the NIS office for fingerprinting, instead of being fingerprinted
in his barracks.  In either case, the sergeant's actions did not
interfere with petitioner's privacy interests or his freedom of
movement in a manner that is not otherwise permissible for members of
the armed forces.

   For that reason, petitioner errs in relying on Davis v.
Mississippi, supra, and Hayes v. Florida, supra.  In those cases, this
Court held that, absent probable cause, a person cannot be brought to
a police station for fingerprinting in a manner that amounts to a
traditional arrest.  By contrast, as the Court of Military Appeals
explained, "the nondisruptive, nonhumiliating, and nonintrusive manner
in which (petitioner's) prints were initially sought separates this
command action from those seizures described in Davis and Hayes." Pet.
App. 12a.  Equally important, those cases involved civilians, who are
not subject to the same restraints on their freedom of movement as
servicemembers.  Because a servicemember may lawfully be subjected to
restraints on his liberty that cannot be imposed on civilians, those
cases provide no support for petitioner's Fourth Amendment claim.  /4/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   THOMAS W. OSBORNE

      Cmdr., JAGC, USN

   STEPHEN PONTICIELLO

      Lt., JAGC, USNR

   SIGURD R. PETERSON, JR.

      Lt., JAGC, USNR Appellate Government Counsel Appellate
      Government Division, NAMARA

   JULY 1989

   /1/ The burglaries of those two rooms formed the basis of the
charges against petitioner.

   /2/ At trial, the government introduced evidence that under United
States Military Entrance Processing Command Reg. 350-1 (1980), all
applicants to the armed forces must be fingerprinted, and that the
fingerprints are kept on file with the Federal Bureau of
Investigation.  Tr. 57-58.

   /3/ As the Court of Military Appeals explained in Schneider, 14
M.J. at 192-193 (citations and footnote omitted):

      The obligations of the military member occasioned by his
      military status and by the relationships inherent in a military
      organization are different from those of the civilian to the
      police.  There are numerous situations in the military context
      where a military person is required to provide information to
      military authorities without consideration of the existence of
      probable cause to detain.  This may occur on the street, in
      offices, and in hearing rooms, as well as in places specifically
      provided for interrogation.  And the obligation to report to
      such places for the purpose of giving information, if properly
      related to the military mission, is a valid military duty.  It
      is the recognition of this peculiar military obligation that
      compelled the Congress to provide safeguards against
      self-incrimination, not to suspend the necessary flow of
      information but to protect the unwary subordinate against the
      subtle coercion of the military rank structure.  Thus, in the
      military milieu, the focus has been on the protections accorded
      by Article 31, the Fifth Amendment equivalent, rather than on
      the nature of the infringement of the person's freedom of
      movement (Fourth Amendment).

   /4/ In any event, given the requirement that all applicants for the
military must be fingerprinted, petitioner's fingerprints would have
been inevitably discovered.  Pet. App. 12a n.3;  id. at 13a (Sullivan,
J., concurring in the result).