                           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
