Multi-Vehicle Acc., In re

• Decision Date: 24 June 1975
• Docket Number: MULTI-VEHICLE
• Citation: 135 N.J.Super. 190,342 A.2d 903
• Parties: In re Investigation of aACCIDENT.
• Court: New Jersey Superior Court

Page 190

135 N.J.Super. 190

342 A.2d 903

In re Investigation of a MULTI-VEHICLE ACCIDENT.

Superior Court of New Jersey Law Division.

June 24, 1975.

Henry E. Rzemieniewski, Manville, for W.

Leonard N. Arnold, First Asst. Prosecutor, for the State (Stephen R. Champi, Somerset County Prosecutor, attorney).

MEREDITH, J.S.C.

This matter comes before the court by way of a motion by the State to detain W. for a period not to exceed three hours for the purpose of taking his photograph to be used in a photographic lineup. In addition, the State requests authority to take paint samples from and photographs of a 1973 Ford half-ton pickup truck.

In support of its application the State has submitted an affidavit from a Hillsborough Township police officer which relates the following facts.

On April 5, 1975 a motor vehicle accident occurred involving two cars and one pickup truck. A witness to the accident has told the affiant that a green pickup truck was involved in the accident and that its driver was an approximately 38 to 40-year-old white male, having short black hair with white streaks in it. After conducting an investigation the affiant has found a truck belonging to W. which matches the description of the truck involved in the accident. Furthermore, the affiant has seen the W. truck and it has sustained recent damage to its right side which, according to witnesses, corresponds to the damage sustained by the truck in the accident. Also, W. matches the description of the driver of the green truck involved in the accident. The paint sample that is requested is to be compared with paint left on a car as a result of the collision, and the photograph of W. is to be used in a photographic lineup for the witness who indicates that he could probably identify the driver of the hit-and-run truck.

In the court's view the requests made here by the State are functionally the equivalent of an application for a search warrant. Procedurally, this motion differs from a search warrant in that the adversary argument as to validity is taking place prior to, rather than after, the contemplated action. Nevertheless, the court feels that the touchstone of the inquiry in regard to the State's requests must be the Fourth Amendment.

The court believes that it is appropriate to deal with the State's requests as to W.'s person and as to his truck separately because of the differing considerations involved. Attention will first focus upon the request for detention in order to take a photograph.

The court finds that the State's detention request involves one intrusion within the meaning of the Fourth Amendment. The seizure of the person of W. which would be necessary in order to effectuate the three-hour detention is clearly a seizure in the constitutional sense. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). However, the taking of his photograph is not. A person's facial features are constantly exposed to the public and what a person knowingly exposes to the public is not a subject of Fourth Amendment protection. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967).

At the outset it should be noted that during oral argument the State conceded that no probable cause in the traditional sense exists for the search or the arrest of W. The court agrees with the evaluation and so holds.

Instead of relying on traditional probable cause, the State grounds its request on what it terms a developing body of case law subsequent to Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), in regard to the obtaining of body exemplars. In Davis the Supreme Court reversed a state rape conviction of a 14-year-old boy because his incriminating fingerprints, admitted in evidence, were taken by police in the course of an illegal detention of the boy.

In order to understand the thrust of the State's position it is necessary to specifically discuss some of the more pertinent cases that are raised.

Wise v. Murphy, 275 A.2d 205 (D.C.Ct.App.1971), is a case in which the District of Columbia Court of Appeals affirmed a lower court order requiring a suspect in a rape case to be detained for a lineup. The basic facts are that the victim of the rape had stated that one photograph among pictures of possible suspects revealed features similar to those of the man that had assaulted her. The court concluded that even though the facts did not rise to the level of probable cause, the procedure employed did meet the Fourth Amendment requirement of reasonableness.

The present case involves the offense of leaving the scene of an accident. This is substantially less serious than a rape investigation. Without either embracing or rejecting the holding in Wise v. Murphy, the court feels that Wise distinguishes itself from the present matter by the following language:

Under proper circumstances, and against a backdrop of required specificity, such a device as court-ordered lineups can prove to be reasonably related to governmental and private rights, and thus a constitutional balance regarding both. Grave reservations exist, however, as to whether this type of court-ordered lineup, not connected with a formal arrest, may be used constitutionally in other than serious felonies involving grave personal injuries or threats of the same. The governmental interest, though serious, is not of the same magnitude in commercial crimes involving property or money such as forgery or false pretenses or other less serious offenses. While the 'sounder course' is to view all intrusions 'in light of all exigencies of the case', Terry v. Ohio, 392 U.S. 1, 17 n. 15, 88 S.Ct. 1868, 1878 (20 L.Ed.2d 889) (1968), it would seem that some offenses, not involving serious personal injury or danger, weigh less as a part of the 'central element in the analysis of reasonableness.' Id. In such cases it is highly likely that the governmental interests in law enforcement cannot outweigh the right of liberty, or freedom from being ordered into even the most antiseptic lineup, under circumstances short of traditional probable cause for formal arrest. Of course, each case must be considered on its own facts. (at 216.)

In re Fingerprinting of M.B., 125 N.J.Super. 115, 309 A.2d 3 (App.Div.1973), involved the propriety of an order requiring the fingerprinting of a group of students. The basis for the order was that a school class ring had been found 44 feet away from the body of a murder victim. In affirming the order, the Appellate Division relied upon the following language from Davis v. Mississippi, supra:

* * * It is arguable, however, that because of the unique nature of the fingerprinting process, such detentions might, under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense. See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Detention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person's prints. Furthermore, fingerprinting is an inherently more reliable and effective crimesolving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the 'third degree.' Finally, because there is no danger of destruction of fingerprints, the limited detention need not come unexpectedly or at an inconvenient time. (394 U.S. at 727, 89 S.Ct. at 1397--1398.)

Thus, it seems that the court's decision is grounded upon the unique nature of the fingerprinting process. The present application is for a detention in order to take a photograph. This does not involve the 'unique nature' of fingerprinting with its 'inherently more reliable and effective crime-solving' value. Therefore, the court finds that In re Fingerprinting of M.B., supra, is distinguishable upon its facts.

The State also makes reference to the Supreme Court decisions in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). These cases held that federal grand jury subpoenas requiring witnesses to produce voice exemplars and handwriting samples did not violate Fourth Amendment rights. The basis of these decisions was that a grand jury subpoena was not a seizure within the Fourth Amendment (410 U.S. at 9, 93 S.Ct. at 769) and that the production of a person's voice and handwriting did not violate an expectation of privacy protected by the Fourth Amendment (410 U.S. at 14, 93 S.Ct. at 771--772 and 410 U.S. at 21--22, 93 S.Ct. at 776). Thus, these cases did not involve any intrusion in the Fourth Amendment sense and therefore, no Fourth Amendment showing of reasonableness was necessary. The present application, on the other hand, does contemplate a seizure which must be justified by Fourth Amendment standards.

The court need not survey the other specific cases raised by the State. It is, however, significant to point out that cases that have allowed pre-arrest detentions in order to obtain body exemplars have generally involved murder, sexual abuse or other serious crimes. See Cupp v. Murphy, supra; Early v. People, 178 Colo. 167, 496 P.2d 1021 (Sup...