Nguyen v. State, 1 Div. 45

• Decision Date: 10 May 1988
• Docket Number: 1 Div. 45
• Parties: Long Van NGUYEN, Thanh Ba Tiet, and Bi Tran v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 582

547 So.2d 582

Long Van NGUYEN, Thanh Ba Tiet, and Bi Tran v. STATE.

1 Div. 45.

Court of Criminal Appeals of Alabama.

May 10, 1988.

On Return to Remand Sept. 20, 1988.

Rehearing Denied Sept. 20, 1988.

Certiorari Denied Dec. 2, 1988

Alabama Supreme Court 88-2.

Rehearing Denied April 28, 1989.

Certiorari Denied July 14, 1989

Alabama Supreme Court 88-1046.

Raymond A. Pierson, Mobile, for appellant Long Van Nguyen.

Richard R. Williams of Davis, Williams & Hudgins, Mobile, for appellant Than Ba Tiet.

Barbara A. Brown, Mobile, for appellant Bi Tran.

Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for State.

McMILLAN, Judge.

The appellants were indicted for six counts of robbery in the first degree; count five of the indictment was nol-prossed. They were found guilty of robbery in the first degree as charged in the remaining five counts of the indictment and were sentenced to 25 years' imprisonment. Ding Van Nghi was a co-defendant at trial, but is not a party in this appeal. ¹

Son Do testified that on January 13, 1985, he was having a party at his apartment in Bayou La Batre. Approximately ten people were present. Son Do testified that there was a knock at his door around 1:30 a.m. He walked out of his bedroom and observed three men with guns, who Tiep Nhu Do, the father of Son Do, testified that he was present at the apartment during the robbery. He stated that at approximately 1:00 a.m. there was a knock at the door and that Toi Nguyen, a guest, opened the door. A man with a gun pushed Toi back inside the room and two other men with guns followed. Money from the people present, as well as their wallets, was laid on a sheet. The gunmen pushed everyone into a corner and kept their handguns pointed at the victims. Tiep Nhu Do identified a paycheck that was taken from him by the robbers. He testified that he watched from the door as the robbers left, as he was too afraid to chase them. The next morning he accompanied his son to report the crime. In court, he only identified Bi Tran and Long Van Nguyen as two of the robbers.

demanded that everyone remove their wallets and money. Son Do only had $5.00, which he had put into a sheet which was used to collect the money. Son Do identified the three appellants in court as the men who committed the robbery. He further testified that the men ran out of his apartment and that he saw a car drive away. No one gave chase. He reported the crime the following day. Son Do testified that when the robber or robbers ² pointed the gun at him, it was approximately one inch away from him and he was able to see the faces of the gunmen.

Toi Nguyen identified all three appellants as the robbers. He testified that the men remained in the apartment approximately 15 minutes.

Lam Van Chenh testified that the robbers took $370 from him. He identified Long Van Nguyen as the robber who pointed a gun at him and Bi Tran as the gunman who searched his pockets.

Than Hun Nguyen testified that the robbers took $50 from him. He identified Bi Tran, Long Van Nguyen, and Thanh Ba Tiet as being the gunmen.

Officer Johnny Joyner, of the Bayou La Batre Police Department, testified that he was on patrol during the early morning of January 13, 1985. He observed a silver 1976 Ford Granada with Louisiana plates run a stop sign at a high rate of speed. The car then crossed into a ditch and came out heading in the other direction. Officer Joyner pulled the car over and asked the driver for his driver's license. Officer Joyner testified that the driver did not fit the description or the photograph on the driver's license; Officer Joyner testified that he wrote the driver a citation for running a stop sign and took him to the station in order to docket him for criminal impersonation. He further testified that when the individual got out of the passenger's side of the vehicle, he observed money and a payroll check lying on the seat. He further testified that he took the money and the check and that none of the four Oriental males who were present in the car wanted to claim the items. The other passengers followed Officer Joyner and the driver to the police station in order to secure their friend's release. Officer Joyner identified appellant Bi Tran as the driver of the vehicle and the other two appellants as passengers in the vehicle. Officer Joyner testified that he placed the driver in jail and advised the other three males of the requirements to get the driver out of jail. After talking to Detective Parker, the three males left the station.

Detective William D. Parker testified that he was called by Officer Joyner in the early morning of January 13 concerning this case. He fingerprinted and photographed the four men who had been in the car because of information he had received regarding another previous robbery; he identified the three appellants as having been three of those men.

Investigator Charles Windham, of the Biloxi, Mississippi, Police Department, testified that he located a Ford Granada with a Louisiana tag after being given a description by Detective Parker. He located the vehicle at a home in Biloxi at approximately 1:30 p.m. on January 14. Four males were arrested and returned to Bayou La Batre.

After the robbery was reported at approximately 11:30 a.m. on the following morning, Detective Parker conducted a photographic lineup, using 12 photographs. He told the victims that the robbers may or may not be included in the photographs. Detective Parker further stated that he told the victims "[n]othing more but to examine the pictures and to be certain of who they picked."

The appellants raise separate issues on appeal. The first four issues concern the identification procedures.

I RAISED BY THANH BA TIET

The appellant alleges that the Bayou La Batre Police Department's policy of taking pictures and fingerprints without consent, or allegedly without any basis for an arrest, violated his rights against unreasonable search and seizure. The appellant's fingerprints were never admitted into evidence and his photograph was admitted only as an exhibit for an in camera hearing. Furthermore, what an individual knowingly exposes to the public is not protected under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). "No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world." United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973).

"The Court in Dionisio likened the sound of a person's voice to a person's 'facial characteristics' which are also 'constantly exposed to the public.' It does not seem open to question, therefore, that mere observation of those characteristics or other physical characteristics does not constitute a Fourth Amendment search. Moreover, it is no search to 'record' those characteristics, in effect, by taking a picture of the individual.

"It is noteworthy that the Dionisio Court also drew an analogy between taking voice exemplars and taking fingerprints, thus suggesting that fingerprinting is no search. (Although it is well established that the taking of fingerprints is a permissible incident to a lawful arrest, courts have rarely addressed the question of whether the act of fingerprinting is itself a search.) This dictum in Dionisio might be considered suspect, however, for the Court's reliance upon Davis [v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969) ] for support is not as sound as it might first appear. The language quoted from Davis was not included therein for the purpose of showing that fingerprinting is not a search but rather for the purpose of showing that detention for such a limited intrusion might 'comply with the Fourth Amendment even though there is no probable cause in the traditional sense.' Yet, the Court has more recently referred to fingerprinting as nothing more than obtaining 'physical characteristics ... constantly exposed to the public,' [Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) ] and lower courts have upheld the fingerprinting of grand jury witnesses without a showing of probable cause."

LaFave, Search and Seizure, § 2.6(a) (1987) [footnotes omitted.] See also United States v. Holland, 438 F.2d 887 (6th Cir.1971) (photographing of person who voluntarily came to police station did not constitute search); State v. McDowell, 301 N.C. 279, 271 S.E.2d 286 (1980), cert. denied, 450 U.S. 1025, 101 S.Ct. 1731, 68 L.Ed.2d 220 (1981) (photographing a person who reported as required to his parole officer was not a search).

The taking of the appellant's photograph and fingerprints by the Bayou La Batre Police Department, because of information that a previous robbery under investigation had been perpetrated by Vietnamese, although the appellant was not under arrest, did not constitute an unconstitutional search. Moreover, because the evidence was never admitted at trial, the appellant suffered no prejudice.

II RAISED BY THANH BA TIET

The appellant argues that his rights against self-incrimination were violated

                when the Bayou La Batre Police officers took his picture and fingerprints without his consent, without advising him of his rights, and without any basis for an arrest.  However, the Fifth Amendment applies only to evidence of a testimonial or communicative nature.  "[T]he privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature."  Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966) (in which the Supreme Court held that the withdrawal of blood for use in a chemical analysis was not a violation of the Fifth Amendment privilege against being compelled to testify against oneself).  "[B]oth federal and state courts have

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