Petitioners Brief — Hayes v. Florida

"Oliice. Supreme Court, U.S.

ae FILED

\Y | ws 1984

No. 83-6766

as EVAS

—

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1984

JoE Hayes, Petitioner,

Vv.

FLORIDA, Respondent.

On Writ Of Certiorari To The District

Court Of Appeal Of Florida, Second District

BRIEF FOR PETITIONER

oo

JERRY HILL

PuBLic DEFENDER

TENTH JUDICIAL CIRCUIT

MICHAEL E. RAIDEN*

ASSISTANT PUBLIC DEFENDER

Hall of Justice Building

455 North Broadway

Bartow, Florida 33830

(813) 533-1184

Attorney of Record*

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (301) 864-6662

i

QUESTION PRESENTED

Whether Davis v. Mississippi, 394 U.S. 721 (1969),

prohibits a warrantless, non-consensual detention of a

citizen, undertaken without probable cause, for the pur-

pose of obtaining the citizen’s fingerprints for comparison

with prints found at the scene of a crime, and whether

Terry v. Ohio, 392 U.S. 1 (1968), may be extended to

permit such detentions?

ii

TABLE OF CONTENTS

DesePSP AGATE oo cccccceccccccccccccccestess

ED oc dice ccnsdecndeacssesosneesesest

RE ns ccd dtbeccndescesissoncssneedteseesoees

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

REED 5. . cinkdddhasseseecesdbscvedsdeesbeseqne

Davis v. MississipP1, 394 U.S. 721 (1969), Prouisits A

5 AOD Pp

WARRANTLESS, NON-CONSENSUAL DETENTION OF A

CITIZEN, UNDERTAKEN WITHOUT PROBABLE CAUSE,

For THE PURPOSE OF OBTAINING THE CITIZEN’S FING-

ERPRINTS For COMPARISON WITH PRINTS FOUND AT

THE SCENE OF A CRIME, AND TERRY v. Ou10, 392 U.S.

1 (1968), CANNoT BE EXTENDED To PERMIT SUCH

GB SE SAE TR TP IS IRAE ee a

The Nature And Scope Of The Protection Afforded

By Davis v. Mississippi ...............+-+++55:

Hayes v. State: Davis Excepted, Terry Extended

The F Of The Florida Court’s Expansion Of

BIT We. GED ev cewcncccccccndsctcecccsseccce.

The Absence of a Constitutionally Acceptable Alter-

— Justification for the Holding in Hayes v.

TABLE OF AUTHORITIES

CASES: Page

Anderson v. State, 241 So.2d 390 (Fla. 1970), vacated on

other grounds, 408 U.S. 938 (1972) ............. 8, 10

Baker v. State, 449 N.E.2d 1085 (Ind. 1983) ......... 20

Bradford v. United States, 413 F.2d 467 (5th Cir. 1969) 7

Brown v. Illinois, 422 U.S. 590 (1975) .............. 23

Bumper v. North Carolina, 391 U.S. 543 (1968) ...... 9

Bynum v. United States, 262 F.2d 465 (D.C.

ST £640 6cUMRAbs dtleahSed chans cede cca on 5, 23

Camara v. Municipal Court, 387 U.S. 523 (1967)... 15 16

Commonwealth v. Tarver, 370 Mass. 397, 345 N.E.2d 671

ieee Rit han ene ee bgcenese.ees 14

Commonwealth v. Youngblood, 241 Pa.Sup. 72, 359 A.2d

EW ChGub edVeVeedolbcedebisdccceccvce 5-6, 21

Davis v. Mississippi, 394 U.S. 721 (1969) ......... passim

Davis v. State, 240 So.2d 270 (Miss. 1967) ....... i, 4-5, 6

Delaware v. Prouse, 440 U.S. 648 (1979) ............ 15

Dunaway v. New York, 442 U.S. 200 (1979) .. 4, 11, 20, 21

Florida v. Royer, 460 U.S. 491, 75 L.Ed.2d 229, 103 S.Ct.

chase GE bn de od0'be abeubns tionees ncesnces 4, 20, 21

Gandy v. State, 438 So.2d 279 (Miss. 1983) .......... 7

Hayes v. State, 439 So.2d 896 (Fla.2d DCA 1983), rev.

den., 447 So.2d 886 (Fla.), cert. granted, 53

U.S.L.W. 3236 (Oct. 2, 1984) ....... 1, 8-9, 15, 18, 19

Inre Armed Robbery, Albertson’s, on August 31, 1981, 99

Wash.2d 106, ep tt eee 7

In re Grand vy h roceedings (Mills), 686 F.2d 135 (3d

Cir.), cert. den. sub nom. Mills v. United States, 459

IIE. ba veddeudsdeddctUaes cdvede's os 17

Inre an Investigation into the Death of Abe A., 56 N.Y .2d

288, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982) ..... 21

Jones v. Commonwealth, 556 S.W.2d 918 (Ky.

BS TEE coke b) Oho a4 dF oes heeds wees ec ccces 7

Judd v. United States, 190 F.2d 649 (D.C. Cir. 1951). 9

Kinsler v. State, 360 So.2d 24 (Fla.2d DCA 1978) .... 8, 10

iv

Table of Authorities Continued

Page

Leigh v. State, 587 P.2d 1379 (Okla. Crim. App. 1978) 7

Loomis v. State, 261 Ark. 716, 551 S.W.22d 546 (1977) 13

Manor v. State, 225 Ga. 538, 170 S.E.2d 290 (1969), va-

cated on other grounds, 408 U.S. 935 (1972) ..... 14

Mapp v. Ohio, 367 U.S. 643 (1961) ............-0005- 1

Michigan v. Summers, 452 U.S. 692 (1981) .......... 22

Mills v. State, 28 Md. App. 300, 345 A.2d 127 (1975), aff'd

270 Md. 262, 363 A.2d 491 (1976) ............... 7

Oliver v. State, 8 Md.App. 610, 261 A.2d 498 (1970) .. 138

Orum v. State, 46 Ala.App. 543, 245 So.2d 829 (1971) . 7

Pardo v. State, 429 So.2d 1313 (Fla.5th DCA 1983)... 12

Pekar v. United States, 315 F.2d 319 (5th Cir. 1963) . 9

People v. Bueno, 87 Cal.App.3d 163, 151 Cal.Rptr. 55

CHARTS TOTEE dns ce ctnvcseccnccesnesscaccecescs 23

People v. Clark, 30 Cal.App.3d 549, 106 Cal.Rptr. 147

(App.4th), cert. den., 414 U.S. 852 (1973) ........ 23

People v. Gates, 24 N.Y.2d 666, 301 N.Y.S.2d 597, 249

TB Ge I os iwec en civic ceeecseicwocccs. 7

People v. Gouker, 628 P.2d 149 (Colo.App. 1981) ..... 7

People v. Harris, 43 Cal.App.3d 854, 118 Cal.Rptr. 106

GRRE TUNE 6 osc ce cco ccc edecdscevccsetevcces 7

People v. John B.B., 56 N.Y.2d 482, 453 N.Y.S.2d 158,

GBB N.1E.BE GE4 CUTER) .n ccc cess cc ccccccccccee 16

People v. Madson, 638 P.2d 18 (Colo. 1981) ........ 19, 20

People v. Peoples, 616 P.2d 131 (Colo. 1980) ......... 14

People v. Pettis, 12 Ill.App.3d 123, 298 N.E.2d 372

(App. lat 1978) ....cccccccccccccccesesssececoes

People v. Price, 86 Mich. App. 641, 273 N.W.2d 97(1978) 7

People v. Teresinsky, 30 Cal.3d 822, 180 Cal.Rptr. 617,

COD PG RD Oiled cand phd mconececes se cees

Sibron v. New York, 392 U.S. 40 (1968) ............. 11

South Dakota v. Opperman, 428 U.S. 364 (1976) ... 15, 16

State v. Accor, 277 N.C. 65, 175 S.E.2d 583 (1970) ... 7

Vv

Table of Authorities Continued

Page

State v. Anonymous, 32 Conn.Sup. 306, 353 A.2d 789

SED Gblknie-as Lamietemateks KEGUE s ps e-0040%s X06 14

State v. Barber, 278 N.C. 268, 179 S.E.2d 404 (1971) . 14

State v. Brown, 387 So.2d 567 (La. 1980) ............ 7

State v. Daniels, 487 S.W.2d 465 (Mo. 1972) ......... 7

State v. Downes, 57 N.C. App. 106, 291 S.E.2d 186 (1982) 15

State v. Evans, 215 Neb. 433, 338 N.W.2d 788

GN Ses hob ccunh ofRGes doled bia be vad « 19, 20, 22

State v. an 111 Ariz. 476, 533 P.2d 533, cert. den.,

Sa a ee ee Oe 20

State v. Hoisington, 104 Idaho 153, 657 P.2d 17 (1983) 13

State v. Hunter, 625 S.W.2d 682 (Mo.App. 1981) ..... 7

State v. Inman, 301 A.2d 348 (Maine 1973) .......... 13

State v. Merklein, 388 So.2d 218 (Fla.2d DCA 1980) .. 12

State v. Sharpe, 284 N.C. 157, 200 S.E.2d 44 (1973) . 14-15

State v. Walls, 32 N.C.App. 218, 231 S.E.2d 196 (1977) 7

Talavera v. State, 186 So.2d 811 (Fla.2d DCA 1966) .. 9

Terry v. Ohio, 392 U.S. 1 (1968) ................. passim

United States ex rel. Hollman v. Rundle, 329 F.Supp.

1052 (E.D.Pa. 1971), affd 461 F.2d 758 (3d Cir. 1972) 7

United States v. Anderson, 490 F.2d 785(D.C. Cir. 1974) 14

United States v. Biswell, 406 U.S. 311 (1972) ........ 15

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) 12, 15

United States v. Cassell, 452 F.2d 938 (D.C.Cir.), cert.

den., 414 U.S. 880 (1973) ew eiibite bhdieh Rie decade 7

United States v. Dionisio, 410 U.S. 1 (1973) .... 3, 16, 17

United States v. Doe, 457 F.2d 895 (2d Cir. 1972), cert.

en euescaece 17

United States v. Harris, 453 F.2d 1317 (8th Cir. 1972),

cert.den., 412 U.S. 927 (1973) ...............0.. 12

United States v. Hoopingarner, 438 F.Supp. 366

8 8 RRC Ce a pa eee ae 17

vi

Table of Authorities Continued

Page

United States v. Jennings, 468 F.2d 111 (9th Cir. 1972) 14

United States v. Kenaan, 496 F.2d 181 (1st Cir. 1974) 7

United States v. Long, 325 F.Sup ly (W.D.Moe 1971),

agra a58¥ 24 13 th Ci 1972), cert.den. .12 U.S.

SEE <0. . . . UURUERSEUES GOCNEN C6: . oduecisds 7

United States v. be 417 F.2d 1167 (5th Cir. 1973),

cert.den. 419 S. 3° Paani tte 7

United States v. Perez, 440 * .Supp. 272 (N.D.Ohio 1977),

aff'd 571 F.2d 584 (6th Cir.), oy 435 U.S. 998

DIE ni cial akin ee iiekeans iektith he disblietbh « 16

United States v. Place, 462 U.S. 696, 77 L.Ed.2d 110, 103

I cei ee os ree ee 8 a ss 22

United States v. Praigg, 336 F.Supp. 480 (C.D.Cal.

ER tw Se EY 2 AE SE hs 12, 16

United States v. Sanders, 477 F.2d 112 (5th Cir.), cert.

den. 414 U.S. 927 (1978) 2... cc ccc ccccccccceces 13

United States v. Seay, 432 F.2d 935 (5th Cir. 1970), cert.

den. 401 U.S. 949 tds dbeivabwbe ke éeedee 7

United States v. Sechrist, 640 F.2d 81 (7th Cir. 1981). 13

United States v. Whitfield, 378 F.Supp. 184 (E.D.Pa.

1974), affd 515 F.2d 506 (8d Cir. 1975) .......... 14

Ybarra v. Illinois, 444 U.S. 85 (1979) ......... 11, 12, 15

CONSTITUTIONS, STATUTES, RULES, AND OTHER

AUTHORITIES:

United States Constitution, Amendments IV and XIV 1

By Bes PE didin'ia cba cb deccddecectccéccuss 17

By ED Sadao cob be cek ed ed esdecdedccdccce 1

Ariz. Rev. Stat. Ann. § 13-3905 (1978) .............. 18

Colo. Rev. Stat. Rule 41.1 (1973) .............20005: 18

SR Se 6 ED no o.dhthiwc Shc bn ob bude ccose esse 18

Iowa Code Ann. §§ 810.2 et seg. (West 1979, Supp. 1983) 18

Neb. Rev. Stat. § 29-3303 ee readidbenokdeatedess 20

vii

Table of Authorities Continued

Page

N.C. Gen. Stat. §§ 15A-271 et seg. (Repl. 1978) ...... 18

Utah Code Ann. § 77-8-1 (Repl. 1982) ............... 18

Ce ae cahecpunbence 1

Model Code of Pre-Arraignment Procedure, app. VIII

SEED 6-64'05.0 00066 punendh pune ses cb enewescceses< 18

OPINIONS BELOW

The opinion of the District Court of Appeal of Florida,

Second District, affirming Petitioner’s convictions of

burglary and sexual battery is reported in Hayes v. State,

439 So.2d 896 (Fla.2d DCA 1983), rev.den. 447 So.2d 886

(Fla. 1984)(J.A.32-44).

JURISDICTION

The jurisdiction of this Court is conferred by Title 28

U.S.C. § 1257(8) and Rule 17(1)(c), United States Su-

preme Court rules, Petitioner having asserted below a

deprivation of his rights as guaranteed under Amend-

ments IV and XIV, United States Constitution.

The judgment of the District Court of Appeal of Flor-

ida, Second District, was entered September 16, 1983,

(J.A.32-44). A timely motion for rehearing was denied by

that court November 2, 1983 (J.A.45), and the Florida

Supreme Court denied a petition for discretionary review

March 22, 1984 (J.A.46). The petition for writ of certiorari

was filed May 18, 1984, and granted October 1, 1984.

(J.A.47).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Amendment IV to the Constitution of the United

States guarantees the right of citizens to be secure in

their persons, houses, papers and effects, against un-

reasonable searches and seizures. The Fourth Amend-

ment is applicable to the states by virtue of the Four-

teenth Amendment. Mapp v. Ohio, 367 U.S. 643 (1961).

STATEMENT OF THE CASE

Petitioner JOE HAYES was charged by information

filed in the Circuit Court, Twentieth Judicial Circuit,

2

Charlotte County, Florida, with the offenses of burglary

and sexual battery (J.A.1-3). After conviction by a jury

he was sentenced to 99 years in state prison October 5,

1981, by the Honv rable James R. Adams, Circuit Judge

(J.A.27-31).

The pertinent facts of the case are as follows: Petitioner

was one of several suspects in a series of burglary/rapes

occurring in Punta Gorda, Florida, in 1980 (J.A.20,33).

Latent fingerprints had been found on the bedroom door-

knob of one of the victims, a Mrs. Julienne Hollander

(J.A.32). Desirous of obtaining Petitioner’s prints for

comparison, Detectives Shoup and Gandy of the Punta

Gorda Police Department went to Petitioner’s home June

23, 1980 (J.A.18,33). Shoup testified he was prepared to

arrest Petitioner if he refused to cooperate (J.A.12,33).

The police neither sought nor obtained a search warrant,

and could give no reason for this omission (J.A.10-11,22-

23,33). Petitioner was reluctant to accompany the offic-

ers, but did so after they told him they would arrest him

‘J.A.19-20,33). After Petitioner’s prints were found to

match those from the Hollander residence, he was

arrested and charged with burglary and rape (J.A. 11,33).

On September 24, 1980, Petitioner moved to suppress

the fingerprint evidence, claiming it had been obtained

illegally (J.A.4-7). The motion was heard October 20,

1980, by the Honorable Richard M. Stanley, Circuit

Judge (J.A.8-26). The court denied the motion without

expressly stating its reasons for doing so (J.A.26). Judge

Stanley’s ruling provided the principal ground for appeal

to the District Court of Appeal of Florida, Second Dis-

trict, as well as the instant proceeding.

The District Court of Appeal of Florida, Second Dis-

trict, affirmed the conviction and sentence September 16,

1983 (J.A.32-44). Specifically, the court agreed with Peti-

3

tioner that he was detained without probable cause and

without his consent (J.A.33-34) but nonetheless justified

the seizure of his person as “a logical extension” of Terry

v. Ohio, 392 U.S. 1 (1968)(J.A.43).

SUMMARY OF ARGUMENT

Petitioner was detained by detectives who wished to

obtain his fingerprints for comparison with prints found

at the scene of a rape. The District Court of Appeal of

Florida, Second District, agreed with Petitioner on two

points: (1) that there was no probable cause to arrest

Petitioner, at least prior to the print comparison; and (2)

that Petitioner did not freely and voluntarily submit to

the detention. Nevertheless, the court concluded that the

situation was distinguishable from that involved in Peti-

tioner’s principal authority, Davis v. Mississippi, 394

U.S. 721 (1969), and held that Terry v. Ohio, 392 U.S. 1

(1968), and related cases could be extended to permit the

seizure of Petitioner’s person for fingerprinting.

The conclusion of the Court of Appeal is without

foundation. The requirements set forth in Davis v. Mis-

sissippt, that probable cause must exist before police may

conduct an “investigatory detention” of a citizen, have

never been overruled by this Court, and the case at bar is

indistinguishable in principle from Davis. Only a few

exceptions have been created to the probable cause

requirement, involving additional and necessary ele-

ments such as emergency, exigency, or prior judicial

authorization, not found in the case at bar. Terry v. Ohio

simply does not constitute the investigative tool charac-

terized by the Court of Appeal. While more recent cases,

such as United States v. Dionisio, 410 U.S. 1 (1973),

suggest lawful means may exist in theory for accomplish-

ing the goals of the police in the case at bar, no such means

4

were employed herein, and thus the deterrent function of

the exclusionary rule should be invoked. Other cases in

the wake of Davis, such as Dunaway v. New York, 442

U.S. 200 (1979), and Florida v. Royer, 460 U.S. 491, 75

L. Ed.2d 229, 103 S.Ct. ___ (1983), only serve to confirm

that the police procedures in the case at bar are offensive

to the Fourth Amendment.

ARGUMENT

DAVIS V. MISSISSIPPI, 394 U.S. 721 (1969), PROHIBITS A

WARRANTLESS, NONCONSENSUAL DETENTION OF A

CITIZEN, UNDERTAKEN WITHOUT PROBABLE CAUSE,

FOR THE PURPOSE OF OBTAINING THE CITIZEN’S

FINGERPRINTS FOR COMPARISON WITH PRINTS

FOUND AT THE SCENE OF A CRIME, AND TERRY V.

OHIO, 392 U.S. 1 (1968), CANNOT BE EXTENDED TO

PERMIT SUCH DETENTIONS.

A. The Nature And Scope Of The Protection Afforded By

Davis v. Mississippi

On December 2, 1965, an elderly resident of Meridian,

Mississippi, was raped in her home by an unidentified

black youth. The best evidence available to the in-

vestigating officers was a number of finger and palm

prints found about a window. During the course of the

next few days the police conducted a “dragnet” wherein

at least 24 black youths were taken to police headquar-

ters, fingerprinted, and questioned. There was no prob-

able cause to justify any of these detentions, and war-

rants were neither sought nor obtained beforehand.

Among the detainees was one John Davis, aged fourteen.

His prints matched those found on the victim’s window.

Davis sought without success to have suppressed the

fingerprints obtained during this investigatory roundup.

Following his conviction for the rape, the Mississippi

Supreme Court affirmed. Davis v. State, 230 So.2d 270

5

(Miss. 1967). However, their decision was later over-

turned by this Court in a decision which serves as the

point of departure for Petitioner’s attack on his own con-

viction. Davis v. Mississippi, 394 U.S. 721 (1969).

In Davis v. Mississippi the Court laid to rest two

premises relied upon by the prosecution to support the

detentions involved therein. First, citing with approval

Bynum v. United States, 262 F.2d 465 (D.C.Cir. 1958),

the Court rejected the argument that fingerprints were

not subject to Fourth Amendment protection because of

their “inherent trustworthiness.”

True, fingerprints can be distinguished from state-

ments given during detention. They can also be dis-

tinguished from articles taken from a prisoner’s pos-

session. Both similarities and differences of each

type of evidence to and from the others are apparent.

ut all three have the decisive common characteris-

tic of being something of evidentiary value which the

public authorities have caused an arrested person to

yield to them during illegal detention. If one such

product of illegal detention is * miemeae by the

same token all should be proscribed.

Bynum, 262 F.2d at 467, quoted in Davis v. Mississippi,

394 U.S. at 724.

Our decisions pocamans no exception to the rule that

illegally seized evidence is inadmissible at trial, how-

ever relevant and trustworthy the seized evidence

may be as an item of proof. The exclusionary rule was

faciond as sanction to redress and deter ovr

ing governmental conduct prohibi y the

Fourth Amendment. To make an exception for

illegally seized evidence which is trustworthy would

fatally undermine these purposes.

Davis, 394 U.S. at 724. Evidence in such instances is

excluded, “not because it is unreliable, but because it is

the produce of conduct that is to be deterred.” Common-

6

wealth v. Youngblood, 241 Pa.Sup. 72, 359 A.2d 456,459

(1976).

Second, the outcome of Davis was not affected by the

fact the detention occurred during the “investigatory”

phase of the case, rather than the “accusatory” stage

when attention had focused upon Davis particularly. The

Fourth Amendment applies equally. “We made this ex-

plicit only last term,” said Mr. Justice Brennan, in Terry

v. Ohio, 392 U.S. 1 (1968).

[T]o argue that the Fourth Amendment does not

apply to the investigatory s is fundamentally to

misconceive the purposes of the Fourth Amend-

ment. Investigator) seizures would subject unli-

mited numbers of innocent persons to the harrass-

ment and ignominy incident to involuntary deten-

tion. Nothing is more clear than that the Fourth

Amendment was meant to prevent wholesale in-

trusions upon the personal security of our citizenry,

whether these intrusions be termed “arrests” or “in-

vestigatory detentions.”

Davis, 394 U.S. at 726-727.

The Court did suggest that fingerprinting might be

permissible, even absent probable cause, under “narrow-

ly circumscribed procedures.” As will be seen, this lan-

guage came back to haunt Petitioner in his initial appeal

to the Florida District Court of Appeal. However, the

Court in Davis continued, “the general requirement that

the authorization of a judicial officer be obtained in ad-

vance of detention would seem not to admit of any excep-

tion in the fingerprinting contex..” Davis, 394 U.S. at

728. Since it was not relevant to Davis’ case how the police

might go about this, the Court declined to speculate and

the question remained open.

Numerous courts at both the state and federal levels

adopted the general rules set forth in Davis and forbade

7

the use of fingerprints obtained without warrants or

probable cause. See, e.g., United States v. Seay, 432 F.2d

395 (5th Cir. 1970), cert.den. 401 U.S. 942 (1971); United

States v. Lyles, 471 F.2d 1167 (5th Cir. 1973), cert.den.

419 U.S. 851 (1974); United States ex rel. Hollman v.

Rundle, 329 F.Supp. 1052 (E.D.Pa. 1971), aff'd. 461 F.2d

758 (3d Cir. 1972); Orwm v. State, 46 Ala. App. 543, 245

So.2d 829 (1971); People v. Price, 86 Mich. App. 641, 273

N.W.2d 97 (1978); Gandy v. State, 438 So.2d 279 (Miss.

1983); State v. Hunter, 625 S.W.2d 682 (Mo.App. 1981);

People v. Gates, 24 N.Y. 666, 301 N.Y.S.2d 597, 249

N.E.2d 450 (1969); State v. Walls, 32 N.C.App. 218, 231

S.E.2d 196 (1977). Similarly, analogy has been made to

other types of identification evidence such as handwriting

exemplars or photographs, where obtained in like man-

ner. See, e.g., Bradford v. United States, 413 F.2d 467

(5th Cir. 1969); United States v. Cassell, 452 F.2d 938

(D.C.Cir.), cert.den. 414 U.S. 880 (1973); United States v.

Kenaan, 496 F.2d 181 (1st Cir. 1974); United States v.

Long, 325 F.Supp. 583 (W.D.Mo. 1971), affd. 453 F.2d

1317 (Sth Cir. 1972), cert.den. 412 U.S. 927 (1973); People

v. Teresinsky, 30 Cal.3d 822, 180 Cal. Rptr. 617, 640 P.2d

753 (1982); People v. Harris, 43 Cal.App.3d 854, 118

Cal. Rptr. 106 (App.2d 1975); People v. Gouker, 628 P.2d

149 (Colo. App. 1981); People v. Pettis, 12 Ill. App.3d 123,

298 N.E.2d 372 (App. lst 1973); Jones v. Commonwealth,

556 S.W.2d 918 (Ky.App. 1977); State v. Brown, 387

So.2d 567 (La. 1980); Mills v. State, 28 Md. App. 300,345

A.2d 127 (1975), aff'd. 270 Md.262, 363 A.2d 491 (1976);

State v. Daniels, 487 S.W.2d 465 (Mo. 1972); State v.

Accor, 277 N.C. 65, 175 S.E.2d 583 (1970); Leigh v. State,

587 P.2d 1379 (Okla.Crim.App. 1978); In re Armed

Robbery, Albertson’s, on August 31, 1981, 99 Wash.2d

106, 659 P.2d 1092 (1983).

8

The State of Florida first acknowledged the protection

afforded by Davis v. Mississippi in the following dictum

from Anderson v. State, 241 So.2d 390,393 (Fla.1970),

vacated on other grounds, 408 U.S. 938 (1972):

Fingerprints taken by the police before a defendant

i ented and without probable cause would violate

his Fourth Amendment ——— against unreason-

able search and seizure. Under these circumstances,

the fingerprints have been held inadmissible.

The Second District Court of Appeal, whence comes the

case presently at bar, followed suit in Kinsler v. State,

360 So.2d 24 (Fla.2d DCA 1978), wherein police coerced

the defendant to submit a footprint impression for com-

parison with prints found at the scene of a burglary. This

remained the law of Florida until September 16, 1983.

B. Hayes v. State: Davis Excepted, Terry Extended

On May 13, 1980, a denouement began in Punta Gorda,

Florida, remarkably like the situation described in Davis

v. Mississippi. The primary clue available to officers

investigating the rape of Mrs. Julienne Hollander was a

set of fingerprints found on a bedroom doorknob. Peti-

tioner Joe Hayes was one of a number of suspects de-

veloped during the ensuing investigation. Probable cause

was lacking to arrest anyone, and no warrants were

sought although the police desired to make fingerprint

comparisons. Petitioner accompanied Detectives Shoup

and Gandy to the police station only as an alternative to

formal arrest. He was arrested and charged after his

prints were found to match those from Mrs. Hollander’s

home. Relying heavily on Davis v. Mississippi and

Anderson v. State, supra, Petitioner moved to suppress

the fingerprints. The trial court denied the motion and

the Second District Court of Appeal affirmed. Hayes v.

State, 489 So.2d 896 (Fla.2d DCA 1983), rev. den. 447

9

So.2d 886 (Fla.), cert. granted 53 U.S.L.W. 3236 (Oct. 2,

1984). In the process they greatly expanded the permissi-

ble scope of searches and seizures under Florida law.

At the trial level counsel for the State had argued that

probable cause existed for Petitioner’s arrest, or in the

alternative, that he had freely consented to submit his

prints. Both claims were rejected by the Court of Appeal.

Tuey held that, in fact, probable cause was lacking and

that evidence of consent was “at best, highly question-

able.” Hayes, 439 So.2d at 898. Cf. Bumper v. North

Carolina, 391 U.S. 543 (1968); Judd v. United States, 190

F.2d 649 (D.C.Cir. 1951); Pekar v. United States, 315 F.

2d 319 (5th Cir. 1963); Talavera v. State, 186 So.2d 811

(Fla. 2d DCA 1966).

Despite these seemingly fatal frailties, the court con-

cluded that the seizure of Petitioner’s person still was not

violative of the Constitution.

Appellant clearly was seized for purposes of the

Fourth Amendment when the officers accosted him

on his front porch and asked for his fingerprints.

Because this was the sole reason for this intended

investigative confrontation and because no in-

terrogation occurred, we conclude that under the

narrow circumstances of this case, this was a reason-

able seizure or detention of appellant under the

Fourth Amendment.

Hayes, 439 So.2d at 899.

The court began its analysis by noting that not all

searches and seizures are invalid just because probable

cause is lacking, citing principally Terry v. Ohio, 392 U.S.

1 (1968). They found within Terry a “balancing test”

between an individual's right of privacy and the right of

“(t]he public, and through it the police . . . in effective

detection and prevention of crime.”

10

The focus for the Court in Terry and the focus which

we follow here is whether the official governmental

intrusion was reasonable.

Hayes, 439 So.2d at 899.

From this premise the court went on to make a number

of conclusions. First, they held it was “immaterial”

whether the prints were made at the police station or on

the front porch of Petitioner’s home. Next, during “the

investigatory stage of the criminal process. . . it does not

matter who is moved, the victim or the suspect.” Finally,

“(where there is reasonable suspicion sufficient to justify

a stop or detention, it is permissible to stop or detain an

individual reasonably long enough to allay or confirm

suspicions so as to cause either release or arrest of that

individual.” Having more or less extricated these con-

clusions from Terry v. Ohio, the court ruled Petitioner

was “lawfully detained, or seized.” Hayes, 439 So.2d at

899-900.

Thereupon it was not difficult for the court to find that

“(t]he instant case poses the very question left un-

answered” by Davis v. Mississippi: the precise circum-

stances under which a suspect might be required to sub-

mit to fingerprinting despite a lack of probable cause for

arrest. Hayes, 439 So.2d at 901. The court expressed the

opinion that the true meaning of Davis had escaped many

of the authors relying upon it to exclude fingerprints or

similar evidence, including the Florida Supreme Court in

Anderson v. State and its own panel in Kinsler v. State,

supra. Not bound by the Anderson dicta, the court re-

ceded from Kinsler to the extent that case would disallow

the new holding. The court found Petitioner’s fingerprint-

ing was 2 “minimal intrusion,” and that to require judicial

intervention before conducting such tests “would unnec-

essarily hamper efforts both to prevent and to solve

11

crimes.” The procedures followed by the Punta Gorda

police constituted only “a logical extension of Terry;” to

hold otherwise “would render Terry a complete nullity.”

Hayes, 439 So.2d at 903.

C. The Fallacy Of The Florida Court’s Expansion Of Terry v.

Ohio

The position taken by the Florida District Court of

Appeal is wholly invalid. In an effort to demonstrate this

invalidity, Petitioner will begin by showing the utter

misapplication of Terry v. Ohio, and then, by reviewing

search and seizure law since Davis v. Mississippi, will

argue that no exception has ever been created to the

warrant/probable cause requirement, nor should one be

created, that is sufficiently extensive to permit the police

procedures involved in the case at bar.

Terry v. Ohio, 392 U.S. 1 (1968), was a landmark deci-

sion permitting limited searches of criminal suspects

upon less than probable cause. Specifically, if a police

officer believes that the suspect has committed or is about

to commit a crime, he may conduct a limited “pat-down”

for weapons if he reasonably believes the suspect is

armed and dangerous.

Quite obviously, the Second District Court of Appeal

believed that Terry was intended as a point of departure

from the long-established requirement that evidentiary

searches be based upon probable cause. Nothing could be

farther from the truth. As Terry’s companion case made

clear, the Terry exception was created for “the protection

of the officer by disarming a potentially dangerous man.”

Sibron v. New York, 392 U.S. 40,65 (1968). See also,

Dunaway v. New York, 442 U.S. 200,210 (1979).

In Ybarra v. Illinois, 444 U.S. 85 (1979), the State of

Illinois attempted to do just what the Florida court did in

12

the case at bar: apply the Terry reasonable belief stand-

ard “to aid. . . evidence-gathering.” Ybarra, 444 U.S. at

94. Instead, the Court flatly refused to transform Terry

into a general investigative tool:

Nothing in Terry can be understood to allow a gener-

alized

cursory search for weapons” or, indeed, any

search whatever for anything but weapons.

Ybarra, 444 U.S. at 93-94.

Above and beyond its heretofore unheard-of expansion

of Terry, The Second District Court of Appeal found

authorization for its holding in a number of other cases

that merit discussion, because these cases likewise fail to

support the court’s reliance upon them. For example, the |

court analogized Petitioner’s seizure to vehicle stops

based on a “BOLO” broadcast, and to blood tests per-

formed upon suspected drunk drivers. State v. Merklein, ,

388 So.2d 218 (Fla.2d DCA 1980); Pardo v. State, 429

So.2d 1313 (Fla.5th DCA 1983). In so doing they ignored

the element of exigency present in those cases but absent

in the case at bar. As recognized in Davis v. Mississippi,

394 U.S. at 727-728, fingerprints are relatively perma-

nent, need by taken but once, and may be seized at any

time including one convenient to the person being

printed. The “BOLO” cases are distinguishable because

they involve a danger of concealment or destruction of

evidence, either through the passage of time or the

escape of the fleeing suspect. Cf. United States v. Praigg,

336 F.Supp. 480, 484 (C.D.Cal. 1972). Such cases embody

what this Court elsewhere termed “the absence of prac-

tical alternatives” to the brief detentions involved.

United States v. Brignoni-Ponce, 422 U.S. 873,881

(1975).

In United States v. Harris, 453 F.2d 1317 (5th Cir.

1972), cert. den. 412 U.S. 927 (1973), the defendant was

13

suspected of having stolen a check, and postal inspectors

desired to obtain his handwriting sample for comparison.

The request was made at Harris’ home and he was given

an opportunity to consult with his parents. Having done

so, he consented to give the sample. Nowhere within that

opinion is there the suggestion of coercion, or of the

nonconsensual asportation from the home to a police sta-

tion. Very simply, the protection afforded by Davis v.

Mississippi may be overcome if the defendant freely

submits to the fingerprinting or similar identification pro-

cedure. See, e.g., Loomis v. State, 261 Ark. 715, 551

- S.W.2d 546 (1977); State v. Hcisington, 104 Idaho 153,

657 P.2d 17 (1983); Oliver v. State, 8 Md. App. 610, 261

A.2d 498 (1970).

Equally erroneous is the reliance upon United States v.

Sanders, 477 F.2d 112 (5th Cir.), cert. den, 414 U.S. 870

(1973), and United States v. Sechrist, 640 F.2d 81 (7th

Cir. 1981). In both cases the defendants’ prints were

taken while the defendants otherwise were in lawful cus-

tody.

The gravamen of the unconstitutional conduct of

the police in Davis was the legally unjustified seizure

and detention of Davis’ person, there being no war-

rant issued and no probable cause existing for such

seizure. A fingerprint taken under those circum-

stances automatically became a fruit resulting from

the ee seizure of the person.

The conduct prohibited by the Fourth Amendment

was the unreasonable seizure of the person. .. .

Once a person is lawfully in custody, the taking of his

ints after his arrest is procedure not pros-

cribed by the Fourth Amendment.

State v. Inman, 301 A.2d 348, 355 (Maine 1973) (emphasis

in the original). In Sechrist, 640 F.2d at 85, the Court of

14

Appeal explained that the defendant had previously been

arrested, and was in custody, on other charges:

When the FBI agent took Sechrist’s fingerprints in

December 1979, Sechrist was incarcerated in the

Shawano County Jail, as he was Ss before

the Menominee Tribal Court on an unre matter.

Because he was in lawful custody at the time, there

could be no Fourth Amendment violation with re-

spect tu the first level of analysis: the “seizure” of the

person.

State v. Anonymous, 32 Conn.Sup. 306, 353 A.2d 789,794

(1976), explains why this is so:

A legal arrest ought to carry with it the right to

undertake fingerprinting, handwriting exemplars,

and other types of purely physical examinations

without as to satisfy Fourth Amendment re-

——— ere is no question that those proce-

ures done subsequent to a legal arrest at police

headquarters or within a reasonable period of time

thereafter while the defendant is still detained are

proper. J

Until now the courts were quick to distinguish the

fingerprinting of persons with the diminished privacy

interests of prisoners or arrestees from the seizure of

citizens from their homes or off the streets, practices

which involve the “impos[ition of] burdens substantially

like those of arrest” including “transportation to the

police station.” United States v. Jennings, 468 F.2d 111,

115 (9th Cir. 1972). See also United States v. Anderson,

490 F.2d 785 (D.C.Cir. 1974); United States v. Whitfield,

378 F.Supp. 184, (E.D. Pa. 1974), aff'd. 515 F.2d 506 (3d

Cir. 1975); People v. Peoples, 616 P.2d 131 (Colo. 1980);

Manor v. State, 225 Ga. 538, 170 S.E. 290 (1969), vacated

on other grounds, 408 U.S. 935 (1972); Commonwealth v.

Tarver, 370 Mass. 397, 345 N.E.2d 671 (1975); State v.

Barber, 278 N.C. 268, 179 S.E.2d 404 (1971); State v.

15

Sharpe, 284 N.C. 157, 200 S.E.2d 44 (1973); State v.

Downes, 57 N.C.App. 106, 291 S.E.2d 186 (1982).

D. The Absence Of A Constitutionally Acceptable Alterna-

tive Justification For The Holding In Hayes v. State

In Ybarra v. Illinois, 444 U.S. at 96 N.10, the Court

offered a brief overview of the accepted circumstances

wherein searches and seizures may be undertaken de-

spite the absence of probable cause.

If any pattern may be said to emerge from this line of

cases, it is not that the warrant/probable cause require-

ment is gradually being relaxed in the direction, and to

the extent, endorsed by the Second District Court of

Appeal in Hayes v. State, supra. Instead, such searches

must constitute something more than just one additional

evidence-gathering function. Many of the detentions au-

thorized are relatively trivial or across-the-board stops,

often involving vehicles. See, e.g., United States v.

Brignoni-Ponce, supra; Delaware v. Prouse, 440 U.S.

648 (1979). Certain search procedures are authorized by

administrative or statutory fiat; these are generally

routine in nature and involve the implied consent of the

detainee. See, e.g., Camara v. Municipal Court, 387

U.S. 523 (1967); United States v. Biswell, 406 U.S. 311

(1972). Others involve a justification above and beyond

the police officer’s general incentive to ferret out evi-

dence of crime. See, e.g., Terry v. Ohio, supra (self-

protection); United States v. Brignoni-Ponce, supra (ex-

igency); South Dakota v. Opperman, 428 U.S. 364 (1976)

(avoidance of civil liability). They are generally more

minimal in scope than full-blown searches (Terry, pat-

down only; Brignoni-Ponce, brief auto stop).

Elsewhere, these exceptions to the probable cause

requirement have been described as involving “(an]

16

overweening emergency” or, absent emergency,

administratively-devised checkpoint stops where “the

decision to ‘seize’ is [not made] by the officer in the field”

and, possibly, a “judicially issued ‘area’ warrant.” People

v. John B.B., 56 N.Y.2d 482, 453 N.Y.S.2d 158, 438

N.E.2d 864,869 (1982) (Meyer, J. dissenting). In United

States v. Perez, 440 F.Supp. 272, 283 n.31 (N.D.Ohio

1977), affd. 571 F.2d 584 (6th Cir.), cert. den. 435 U.S.

998 (1978), the court noted an additional distinction be-

tween Camara v. Municipal Court and South Dakota v.

Opperman, supra, and the remaining cases: these involve

searches conducted essentially for “civil purposes and

therefore [are] entitled to great leeway under the Fourth

Amendment,” as opposed to “a search for evidence of a

crime” wherein the police are “required to possess prob-

able cause.” Cf. United States v. Praigg, supra.

Under none of these prenumbrae would fall the seizure

of the Petitioner Joe Hayes.

In recent years a body of case law has emerged approv-

ing the taking of fingerprints and other non-testimonial,

identification-oriented evidence, even without probable

cause. None of these cases remotely approaches the sort

of intrusion to which Petitioner was subjected, nor is it

conceivable that the various courts authoring those deci-

sions would have reached the same conclusion on Peti-

tioner’s facts. An examination of those cases is neverthe-

less useful because it indicates, first, what this Court

meant when in Davis v. Mississippi it stated that excep-

tions to the probable cause requirement might exist for

fingerprinting, and second, that this Court certainly nev-

er intended such a result as was approved by the Florida

court in the case at bar.

In United States v. Dionisio, 410 U.S. 1 (1978), the

Court concluded that a grand jury could properly issue

17

subpoenas to some twenty individuals, in order to obtain

voice exemplars for comparison with recorded conversa-

tions already in evidence. The Court reaffirmed that

in Davis it was the initial seizure—the lawless drag-

net detention—that violated the Fourth and Four-

teenth Amendments, not the taking of the finger-

prints.

Dionisio, 410 U.S. at 11. The characteristics of the voice,

said the Court, are, like handwriting or facial appearance,

something “repeatedly produced for others to hear” and

“constantly exposed to the public.” Dionisio, 410 U.S. at

14. The taking of the voice exemplars would involve a

procedure less intrusive than a Terry frisk.

Rather, this is like the fingerprinting in Davis,

where, a the initial dragnet detentions were

constitutionally nen. we noted that the

fingerprinting itself “involves none of the probing

into an individual’s private life and thoughts that

marks an interrogation or search.” Davis v. Missis-

sippi, 394 U.S. at 727.

Dionisio, 410 U.S. at 15.

Crucial to the resolution of Dionisio was the majority’s

conclusion that a grand jury does not operate simply as an

arm or tool of the policeman or prosecutor, but as a sort of

“protective buffer” between those entities and the ac-

cused. United States v. Doe, 457 F.2d 895, 899 (2d Cir.

1972), cert.den. 410 U.S. 941 (1973). See also In re Grand

Jury Proceedings (Mills), 686 F.2d 135, 141 (3d Cir.),

cert.den.sub nom. Mills v. United States, 459 U.S. 1020

(1982). In the final analysis, a grand jury is under the

control and supervision of a court. Similarly, the court in

United States v. Hoopingarner, 438 F.Supp. 366, 367

(N.D.N.Y. 1977), approved Internal Revenue Service

summonses pursuant to 26 U.S.C. §§ 7602, 7604, because

18

of “the interposition of a neutral magistrate between the

subject and the investigating agency to prevent abuses.”

This hearkens back to that language in Davis v. Missis-

sippi, 394 U.S. at 728, regarding “narrowly circum-

scribed procedures” and, particularly, “the authorization

of a judicial officer.” It will be recalled that the Second

District Court of Appeal, in Hayes v. State, 439 So.2d at

903, dismissed any such judicial authorization as

needlessly burdensome. This is perhaps the most flagrant

misstatement of the law to be found in the body of that

opinion. Prior approval by a magistrate, rather than

being needless, is instead crucial anc essential, whether

in the context of a grand jury investigation or one under-

taken by police.

In the wake of Davis a number of jurisdictions respond-

ed to its dictum by adopting procedures for obtaining

fingerprints and like evidence without the necessity of

actual arrest.

Responding to this language, several states

adopted statutes allowing judicial officers to issue

orders empowering police authorities to seize per-

sons in order to obtain nontestimonial identification

evidence. See, Ariz. Rev.Stat.Ann. § 13-3905 (1978);

7B Colo. Rev.Stat. Rule 41.1 (1973); Idaho Code § 19-

625 (1979); Iowa Code Ann. §§ 810.2 et seq. (West

1979 & Supp. 1983); N.C. Gen.Stat.§§ 15A-271 et

on. 1978); Utah Code Ann. § 77-8-1 (Repl.

1982), See, also, Model Code of Pre-Arraignment

Procedure app. VIII at 699 et seq. (1975). In most

instances the orders issue upon an affidavit of a police

officer showing that there is probable cause to be-

lieve that an offense has been committed; that there

are reasonable grounds, not amounting to probable

cause to arrest, to suspect that pene numed or

described in the affidavit committed the offense; and

that the results of specific nontestimonial identifica-

19

tion procedures will be of material aid in determinin ing

whether the person named in the affidavit commit

the offense. In the only reported case we have found

involving a direct constitutional attack on this type of

statute, the statue was upheld. People v. Madson,

638 P.2d 18 (Colo. 1981).

State v. Evans, 215 Neb. 433, 338 N.W.2d 788, 792 (1983).

Based on a review of recent Supreme Court search and

seizure decisions (not unlike that undertaken by the court

in Hayes v. State) the Colorado Supreme Court in People

v. Madson, 638 P.2d at 31-32, concluded:

[L]imited intrusions into privacy on less than prob-

able cause are reconcilable with the Fourth Amend-

ment guarantees when the following conditions ex-

ist. First, there must be an articulable and specific

basis in fact for suspecting criminal activity at the

outset. Second, the intrusion must be limited in

scope, purpose, and duration. Third, the intrusion

must be justified by substantial law enforcement

interests. Last, there must be an opportunity at

some point to subject the intrusion to the neutral and

detached scrutiny of a judicial officer before the evi-

dence obtained therefrom may be admitted in a crim-

inal proceeding against the accused.

The requirements of the Colorado law upheld in Mad-

son are quite stringent. In addition to the general re-

quirements noted in State v. Evans, supra, the court

order must specify the particular type of identification

procedure sought to be conducted. Upon completion of

that procedure the suspect must be either arrested or set

free. \'> person detained under the rule may be held any

longer than is reasonably necessary to conduct the speci-

fied test. The order may be executed only within daylight

hours, absent a showing the suspect is likely to flee the

jurisdiction, and is valid for only ten days after its

issuance. No search of the person may be performed

absent a separate search warrant. The products of the

20

testing procedures are subject, upon motion, to destruc-

tion if, as a result, probable cause for arrest is still lack-

ing. People v. Madson, 638 P.2d at 32-33. Cf. Baker v.

State, 449 N.E.2d 1085, 1090 (Ind. 1983).

Interestingly, the Nebraska Supreme Court, in State

v. Evans, 338 N.W.2d at 794, noted that both Colorado

and Arizona, the latter in State v. Grijalva, 111 Ariz. 476,

533 P.2d 533, cert. den. 423 U.S. 873 (1975), require only

reasonable grounds to connect the detainee with the

crime under investigation, not probable cause. Even so,

the Nebraska court declined to adopt a similarly relaxed

standard, citing Dunaway v. New York, supra, and [lor-

ida v. Royer, 460 U.S. 491, 75 L.Ed.2d 229, 103 S.Ct.

—__—(1983).

We find these cases persuasive in reaching the con-

clusion that the compulsion of a person by police

officers to accompany them to a police station or

hospital, or wherever, and the forced submission to

nontestimonial identification procedures, is a seizure

of such — that more than a mere suspicion is

required. We read the identifying physical charac-

teristics act to require a showing or probable cause to

believe the person to be so seized has engaged in an

articulable or criminal offense prior to the judicial

officer issuing an order pursuant to [Neb. Rev.Stat.

§ 29-3303 (Reissue 1979)]. As so interpreted, the act

is constitutional. It would be anomalous and indeed

bizarre to require such probable cause prior to the

seizure of papers, books, and other objects, but not

for the seizure of persons.

A year earlier the New York Court of Appeals had

reached the same conclusion:

Further, whatever doubt dicta may have introduced

into the subject in Davis v. Missisisippi. . . has been

dispelled by Dunaway v. New York ... which

squarely held that the seizure of a person can never

be undertaken for less than probable cause.

21

In rean Investigation into the Death of Abe A., 56 N. Y.2d

288, 452 N.Y.S.2d 6, 437 N.E.2d 265, 269 (1982).

The Court in Dunaway was only echoing its earlier

pronouncement in Davis v. Mississippi that it is not the

evidence itself that is subject to criticism, but the means

employed to gain that evidence. Cf.Commonwealth v.

Youngblood, supra. Rejecting New York’s attempt, basd

on Terry, Brignoni-Ponce, and other such cases, to jus-

tify some seizures of the person on a relaxed standard, the

Court stated:

In contrast to the brief and narrowly circumscribed

intrusions involved in those cases, the detention of

petitioner was in a respects in-

distinguishable from a itional arrest.

Dunaway, 442 U.S. at 212.

A bitterly-divided Court in Florida v. Royer, supra,

rejected the detention of an airline passenger suspected

of drug trafficking. Mr. Justice Rehnquist, dissenting,

found no distinction in principle between the brief deten-

tion of suspected smugglers, about to board airplanes or

exit terminals, and the equally brief detention of vehicles

suspected of involvement in transporting illegal aliens, a

procedure previously approved by the Court. His empha-

sis on Royer’s “40 foot journey” illustrates a crucial dis-

tinction between what the police sought to accomplish in

that case and the means employed in the instant case.

Royer, 75 L.Ed. 2d at 258. Even so, the majority held

that even under those much less intrusive circumstances

the police may not “seek to verify their suspicions by

means that approach the conditions of arrest.” Royer, 75

L.Ed.2d at 237.

Even more recently, the Court reaffirmed that excep-

tions to the probable cause requirements are few and

22

narrow. Citing, inter alia, Michigan v. Summers, 452

U.S. 692 (1981), the Court identified “three law enforce-

ments interest that justifly] limited detention”: prevent-

ing flight as a judicially-authorized search is being con-

ducted, minimizing the chance of harm, and the orderly

completion of that search. United States v. Place, 462

U.S. 696, 77 L.Ed.2d 110, 119, 103 S. Ct. ___ (1983).

In light of Dunaway and the subsequent authority, it is

indeed questionable whether the procedure authorized

by Colorado and Arizona passes constitutional muster, as

stated by the Nebraska court in State v. Evans, supra.

Yet, while a discussion of those procedures is appropriate

to illustrate how the Second District Court of Appeal

overbroadly depicted the possible fingerprinting excep-

tions implied by Davis, we must not lose sight of the fact

that while legal means might have been devised and em-

ployed to obtain Davis’ or Petitioner’s prints, what was

actually done was in violation of the Fourth Amendment

and deserving of the invocation of the exclusionary rule.

ems a ay that the pemmovers

a i set of fingerprints is muc

ado —_ very oy aes it would have been sim-

proper to have n appellant’s eo

aed ing trial in order to compare them with

the prints said to have been found at the scene of the

crime. It is also said that appellant’s fingerprints,

taken on a proper occasion, were in the possession of

the Federal Bureau of Investigation and that these

prints could y have been used in this case. But

this argument, the argument of trustworthiness

already discussed, simply does not meet the point. It

bears repeating that the matter of pri judicial

concern in all cases of this type is imposition of

effective sanctions implementing the Fourth

Amendment tee inst illegal arrest and

detention. Neither the fact that the evidence

ined through such detention is itself trustworthy

23

or the fact that equivalent evidence can conveniently

be obtained in a wholly proper way militates against

this overriding consideration. It is entirely

irrelevant that it may be relatively easy for the

government to prove guilt without using the product

of illegal detention. The important thing is that those

administering the criminal law understand that they

must do it that way.

Bynum v. United States, 262 F.2d at 468-469. Remarkab-

ly apparent in the instand case is the wanton disregard on

the part of Detectives Shoup and Gandy for the prevailing

standards of law. The observation of Mr. Justice Black-

mun in Brown v. Illinois, 422 U.S. 590, 605 (1975), is

appropriate:

The illegality ety moreover, oy a quality of

purposefulness. The impropriety of the arrest was

obvious; awareness of that fact was virtually con-

ceded by the two detectives when they repeatedly

acknolwedged that the — of their action was

“for investigation” or for “questioning” ... The

arrest, both in design and in execution, was in-

vestigatory. The detectives embarked upon this ex-

peers in the hope that something might turn up.

e manner in which Brown’s arrest was effected

gives the appearance of having been calculated to

cause surprise, fright, and confusion.

Or, as noted in People v. Bueno, 87 Ca.App.3d 163, 151

Cal.Rptr. 55, 58 (App.2d 1979), “the movitation of the

officers is a significant factor in determinging whether

fingerprint evidence is admissible,” citing People v.

Clark, 30 Cal.App.3d 549, 106 Cal.Rptr. 147, 152

(App.4th), cert. den. 414 U.S. 852 (1978) (distinguishing

arrests “with [a] motive to obtain . . . fingerprints.”)

Upon this review of the applicable case law, Petitioner

can only conclude as follows:

_ (1) Fingerprints are not exempt from Fourth Amend-

ment protection simply because of their trustworthiness,

24

value as an item of proof, or the ease with which they may

be obtained. The procedures employed to obtain the

prints, including the means of detaining the subject to be

printed, must be reasonable and in accordance with con-

stitutional standards.

(2) Investigatory detentions of citizens, particularly

those which involve the transportation of the person from

one location to another, have always required and con-

tinue to require probable cause, at least in the absence of

judicial authorization for such detention. The only ac-

cepted departures from this traditional standard involve

emergency or exigent circumstances not present in the

case at bar.

(3) The procedures by certain jurisdictions such as

Colorado and Arizona, involving what is essentially a

“mini-warrant” or “quasi-warrant,” differ from the meas-

ures employed against Petitioner in fundamental ways.

They require prior judicial authorization. They permit

only brief and relatiely convenient detentions. In the

wake of Dunaway and foyer, they may even require

probable cause no less than does an actual arrest,

notwithstanding the dictum in Davis v. Mississippi

whence they originated.

(4) The Second District Court of Appeal erred in con-

doning the activities of the police in the instant case,

specifically, in rejecting the probable cause requirement

and the necessity of prior judicial approval. Their decision

is particularly egregious given the flagrant disregard for

law displayed by these officers, whose intent from the

beginning was to effect an arrest but who were legally

unable to do so until after obtaining the crucial fingerprint

evidence.

25

CONCLUSION

For the foregoing reasons and authorities, Petitioner

respectfully submits that the judgment of the Florida

District Court of Appeal, Second District, should be re-

versed and this case remanded for a new trial.

Respectfully submitted,

JERRY HILL

PuBLic DEFENDER

TENTH JUDICIAL CIRCUIT

MICHAEL E. RAIDEN*

ASSISTANT PUBLIC DEFENDER

Hall of Justice Building

455 North Broadway

Bartow, Florida 33830-3798

(813) 533-1184

Attorney of Record*