### 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 officers in exacting fingerprints from a Dear Sir: person legally arrested.

Your opinion request of May28, 

### 1957,presents the following questions :

1. Maylaw enforcement officers forcibly take fingerprints from aperson legally arrested? 

### 2. In the alternative, maylaw enforcement officers hold aprisoner until he voluntarily submitsto giving fingerprints? In Qwnsbv +Morls. et a&*

### ,79S.W.2d 

### 934(Tex.Civ. APP., 

### 19351,th: defeldantrpermitted his fingerprinting and photographing under protest. The court stated at page 

### 935:

I,

. we dohold that apeace officer who has good’c&se to believe and does believe that aperson is then compounding a crime, for which the officer will be under duty to procure his arrest, maydetain him, take his fingerprints, have himphotographed, 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 detained and, after being photographed, etc., was permitted to leave.” In Bartletta v. McFeela, 107N.J.Eq. 141, 152 A. 

### 17 (19301,aff Id. on other grounds, 109 N.J.Eq. 

### 241,156A.658 (19311,the defendant thrust his hands into his pockets and declared that the prints of his fingers should not be taken. After some discussion, he submitted, under protest, and upon the advice of his counsel, and the officer in charge madethe fingerprints. 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 before trial and conviction except under the consent of the prisoner. I amconvinced that this is not the law. The police are charged with the duty of preventing crime) apprehending criminals, and gathering evidence upon which they maybe brought to trial. In the performance of this duty, they mayuse 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 anadministrative question to be determined by the head of the police department making the arrest, or by those subordinates to whomhe maydelegate the decision. II

. . .The Court of Criminal Appeals of Texas, in Conne V 

### 134Tex.Crim. 

### 278,115 S.W.2d 

### 681(19381,held thatrzd-’ State, 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 provides that an accused cannot be required to give evidence against himself. Oneof the leading cases on fingerprinting is United States v. Kelle 

### 55Fed.2d 

### 67(2nd Cir., by Judge August& N. Hand. 1932), with the opinion Applicable language from this decision is:

“Wefind no ground in reason or authority for interfering with amethod of identifying persons charged with crimewhich has nowbecome widely known andfrequently practiced both in jurisdictions where there are statutory provisions regulating it andwhere it has no sanction other than the common law.

“The appellee argues that manyof the statutes andthe decisions in common-law states have allowedHonorable William J. Gillespie,, page 

### 3 (~~-169)
finger printing only in case of felonies. But9 as ameans of identification, it is just as useful and important where the offense is amisdemeanor, andwe can see no valid basis for a different iation. In neither case does the interference 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 amanls guilt. It is no more humiliating than other means of identification that have been universally held to infringe neither constitutional nor commonlaw rights. Finger printing is used in numerous branches of business and of civil service, and is not in itself a badge of crime. As aphysical invasion it amounts to almost nothing, and as ahumiliation it can never amount to as much as that caused by the publicity attending a sensational indictment to which innocent menmayhave to submit. 11

. . . Weprefer, however, to rest our decision 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 andfingerprints cannot be regarded as apenalty. If it were, such records could never be made. Anaccused 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 considered the same as eny other administrative procedure of the police to which an individual must, at times, be subjected for the commongood.” The exaction of fingerprints by law enforcement officers over the objection of aperson legally arrested does not violate the privilege against self-incrimination, nor does it violate individual privacy.

Since an objection to fingerprinting by a person legally arrested is to no avail, law enforcement officers mayemploy such force as is reasonably necessary to accomplish the fingerprinting.

Since fingerprints maybe exacted by law enforcement officers, using such force as is reasonably necessary, and sinceHonorable Villiam J. Gillespie, page 4 (~-169)

the second question asked is phrased in the alternative, its answering is unnecessary.

Lawenforcement officers mayuse such force as is reasonably necessary in the exaction of fingerprints from aperson legally arrested. Very truly yours, WILLWILSON Attorney General of Texas

John Ii. Lennan JRL:pf:wb APPROVED: OPINIONCOMMITTEE: H. Grady Chandler, Chairman Jas. H. Rogers John H. Minton, Jr. Jack Goodman REVIFWED

FORTREATTORNEY GENERAL BY: Geo. P. Blackburn Assistant