Tuesday, December 25, 2012

The Judicial Reception of Acquiring Biometric Data on Arrest: Photographing, Sizing, and Fingerprinting Before 1933

A recent article suggests that in the first third of the Twentieth Century, American courts generally did not sanction photographing, fingerprinting, or making physical measurements of arrestees (Bertillonage). According to Wayne A. Logan, Policing Identity, 92 B.U. L. Rev. 1561 (2012), courts did not “sanction the common practice of ‘mugging’ every suspect whose picture and measurements the police would like to have. Nor d[id the courts] sustain the right to retain the prints and measurements after acquittal.” Id. at 1579 (quoting A.M. Kidd, The Right to Take Fingerprints, Measurements and Photographs, 8 Cal. L. Rev. 25, 32 (1919)). A mere “handful of decisions [adopted] a more generous stance.” Id. The early regime of general disapproval of police acquisition of biometric data then changed “[s]tarting in the 1930s, [as] courts began evincing a less critical and more accepting view. Most notably, in United States v. Kelly [55 F.2d 67 (2d Cir. 1932)] the Second Circuit rejected a challenge to the use of identity evidence, based on the absence of statutory authority to extract prints, brought by a defendant facing misdemeanor prosecution under the National Prohibition Act.” Logan, supra, at 1580.

The theory that United States v. Kelly, 55 F.2d 67 (2d Cir. 1932), represents a phase shift is open to serious question. True, a mere handful of decisions upheld the collection, retention, and widespread circulation of biometric records all at once. But then again there were only a handful of reported opinions—of any kind on each of these matters. An annotation from 1933 observed that
Considering the large number of arrests that are made, there are comparatively few cases in which the right of a person to prevent his description from taking its place in the "rogues' gallery" has been involved. The decisions of those few cases are not uniform. This is accounted for in part by the difficulty the courts find, on account of the form of the pleadings, in granting the relief sought. Both mandamus and injunction have been held not to be the proper remedies.
Annotation, Right to Take Finger Prints and Photographs of Accused Before Trial, or to Retain Same in Police Record After Acquittal or Discharge of Accused, 83 A.L.R. 127 (1933).

Having now read almost all the appellate opinions in the original annotation, my conclusion is that the clear majority rule favored the collection and retention of the data. Both before and after Kelly, appellate courts did not recognize high constitutional barriers to collecting biometric data from arrestees and rarely found merit in demands for the destruction of fingerprints, photographs, or bodily measurements.

Proceeding chronologically, in the earliest case collected in the Annotation, the Indiana Supreme Court evinced no doubt that a sheriff had the power to acquire biometric data on an arrestee. In State ex rel. Bruns v. Clausmeier, 57 N.E. 541 (Ind. 1900), the gravamen of the complaint was libel—that the sheriff damaged an acquitted defendant’s reputation by circulating his picture. The Indiana Supreme Court observed (in dictum) that “It would seem, therefore, if, in the discretion of the sheriff, he should deem it necessary to the safe-keeping of a prisoner and to prevent his escape, or to enable him the more readily to retake the prisoner if he should escape, to take his photograph, and a measurement of his height, and ascertain his weight, name, residence, place of birth, occupation, and the color of his eyes, hair, and beard, as was done in this case, he could lawfully do so.” The court cited no opinions to the contrary.

In Shaffer v. United States, 24 App. D.C. 417 (D.C. 1904), the defendant objected to the use of his arrest photograph (in which he had no beard) to help a witness identify him at trial (when he had a beard) on the ground that the state had no right to photograph him for that purpose and that using the photograph at trial violated his right not to be compelled to incriminate himself. The District of Columbia’s Court of Appeals forcefully rejected the argument, observing that photographing arrestees was “one of the usual means employed in the police service of the country, and it would be matter of regret to have its use unduly restricted upon any fanciful theory or constitutional privilege.”

Thus, the earliest appellate cases reflect no condemnation of the routine collection biometric identification information following an arrest. However, the Louisiana Supreme Court expressed a different view in Itzkovitch v. Whitaker, 42 So. 228 (La. 1906), and Schulman v. Whitaker, 42 So.2d 227 (La. 1906).  In these cases, the court saw no reason to take photographs (and share them with other police agencies) before conviction. The Louisiana Supreme Court cited no opinions previously adopting this position. Clausmeier and Schaffer notwithstanding, the Whitaker court “found no precedent directly pertinent to the issues here.”

The Arkansas Supreme Court in Mabry v. Kettering, 117 S.W. 746 (Ark. 1909), followed Clausmeier and Schaffer. Three men charged with state crimes and held in a county jail sought an injunction against developing the negatives of photographs that their jailers had taken. The state planned to give the photographs to federal officials “for the purpose of identifying appellants in the various localities where [federal] offenses are charged to have been committed.” The state supreme court held that they were not entitled to the injunction. It wrote that “[t]he authorities cited by appellants in support of their claim for a temporary injunction clearly recognize the principle that public officers, charged with the enforcement of criminal laws, and having in their custody individuals charged with crime, may use photographs for the purpose of identifying the individual accused.” The “identification” here plainly involved the use of the photographs in separate and unrelated investigations.

In the same year, Maryland’s highest court also rejected the Louisiana approach. In Downs v. Swann, 73 A. 653 (Md. 1909), the Court of Appeals affirmed the dissolving of an injunction against taking photographs and bodily measurements to identify an arrestee. This court defined “[t]he precise question” as “whether the police authorities of Baltimore city may lawfully provide themselves, for the use of their department of the city government, with the means of identification of a person arrested by them upon a charge of felony, but not yet tried or convicted, by photographing and measuring him under the Bertillon system.” The court perceived no constitutional defect in acquiring the identifying information. As for the general state of the law, the court explained that “The right of the police authorities to employ the Bertillon process for the identification of convicted criminals has been recognized in most, if not all, of the jurisdictions in which the subject has received consideration, although several courts and text-writers have either questioned or denied the right to subject to that process persons accused of crimes before their trial or conviction.” It cautioned, however, that it was not countenancing “the placing in the rogues' gallery of the photograph of any person, not a habitual criminal, who has been arrested, but not convicted, on a criminal charge, or the publication under those circumstances of his Bertillon record.”

In 1915, the Washington Supreme Court rejected an offender’s demand for the destruction of postconviction photographs. Although Hodgeman v. Olsen, 150 P. 1122 (Wash. 1915), is not a case on arrestee data collection—indeed, the court judiciously noted that did not need to reach the question of preconviction data collection—the opinion sheds light on the judicial understanding of that question at that time. The Washington court “call[ed] attention to . . . cases explicit in affirming the implied police power to take, preserve, and make reasonable use of such photographs and data for the identification of persons convicted of crime, and even of persons accused of crime, but not yet convicted.” 150 P. 1122. The only appellate cases to the contrary were the isolated Louisiana ones.

Finally, in Miller v. Gillespie, 163 N.W. 22 (Mich. 1917), the Michigan Supreme Court held that an arrestee was not entitled to the destruction of identifying records even though the charges against him were dismissed at trial. It perceived absolutely no authority—including the Louisiana cases—“for granting relief . . . , unless it can be said that the mere preservation in the files of the police department of a report proper to be made in the first instance—a true report—exposes plaintiff to ridicule, obloquy, or disgrace.” Naturally, the court was unwilling to say any such thing.

In sum, by the 1920s, the Louisiana cases were the exception to the rule. Those opinions, and ones from trial judges reaching similar results, never were the majority rule. The main innovation of United States v. Kelly, 55 F.2d 67 (2d Cir. 1932), was its deliberate extension of the majority rule to misdemeanor arrests. It described fingerprinting of arrestees as "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." Id. at 70. The opinion was not radical. If it was persuasive in expanding the established doctrine, its impact may have been related to its unusually detailed analysis of the law and policy and to the prestige of the court. Judges Augustus Hand, Learned Hand, and Thomas Swan comprised the panel--a veritable judicial powerhouse.


Annotation, Right to Take Finger Prints and Photographs of Accused Before Trial, or to Retain Same in Police Record After Acquittal or Discharge of Accused, 83 A.L.R. 127 (1933).

David H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol'y 455 (2001)

A.M. Kidd, The Right to Take Fingerprints, Measurements and Photographs, 8 Cal. L. Rev. 25, 32 (1919)

Wayne A. Logan, Policing Identity, 92 B.U. L. Rev. 1561 (2012)

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