Purdy v. Mulkey

• Decision Date: 12 November 1969
• Docket Number: No. 69--277,69--277
• Parties: E. Wilson PURDY, as Sheriff and Director of the Public Safety Department of Dade County, Florida, Appellant, v. Adrian MULKEY, J. F. McCracken as Clerk of the Criminal Court of Record for Dade County, Florida, Jack Turner, Edward S. Klein, Carling Stedman, and Paul Baker, as Judges of the Criminal Court of Record of Dade County, Appellees.
• Court: Florida District Court of Appeals

Page 132

228 So.2d 132

E. Wilson PURDY, as Sheriff and Director of the Public Safety Department of Dade County, Florida, Appellant, v. Adrian MULKEY, J. F. McCracken as Clerk of the Criminal Court of Record for Dade County, Florida, Jack Turner, Edward S. Klein, Carling Stedman, and Paul Baker, as Judges of the Criminal Court of Record of Dade County, Appellees.

No. 69--277.

District Court of Appeal of Florida, Third District.

Nov. 12, 1969.

Thomas C. Britton, County Atty., and Joseph D. Komansky, Asst. County Atty., for appellant.

Richard E. Gerstein, State's Atty., and Charles D. Edelstein, Asst. State's Atty., Ralph H. Bearden, Jr., Miami, and Hubbard & Hickey, Coral Gables, for appellees.

Before PEARSON, C.J., and CHARLES CARROLL and BARKDULL, JJ.

CHARLES CARROLL, Judge.

Adrian Mulkey, the appellee, was arrested in September of 1959, and was informed against, charged with the crime of attempt to commit petit larceny, a misdemeanor. Upon arrest he was fingerprinted and photographed by the sheriff, and copies of the fingerprints were sent to the federal bureau of investigation. In so doing the sheriff acted under the authority and direction of a statute then in effect (§ 30.31 Fla.Stat.1959) which read as follows: ¹

'Fingerprinting persons charged with crime.--

'(1) It is hereby made the duty of the sheriffs of the state, when in their opinion it is necessary to the protection of the public, to fingerprint all persons charged with or convicted of any criminal offense.

'(2) The sheriffs of the respective counties are hereby required to furnish a copy of all fingerprints made by them to the federal bureau of investigation.'

Mulkey pled guilty, when arraigned in the criminal court of record of Dade County, following which, on November 19, 1959, the court entered an order withholding adjudication of guilt and placing him on probation for six months, and at the end of the period of probation ordered Mulkey released from the probation and discharged him from the cause. ²

Eight years later, on January 23, 1968, Mulkey filed a petition in the circuit court seeking to have his fingerprint record and photographs expunged, and to have the court file relating to the criminal case sealed. Originally the only defendant named in his petition was the clerk of the criminal court of record. Later an amended petition was filed, repeating the allegations, and adding the judges of the criminal court of record as defendants. The sheriff applied for and was granted leave to intervene as a defendant, and filed his answer.

In his amended petition Mulkey alleged that he had pled guilty to the offense for which he was arrested in 1959, and recited the action of the court in withholding adjudication of guilt and placing him on probation, and the subsequent order releasing him from probation and discharging him from the cause after expiration of the probation period. He alleged that he was 17 years of age at the time of the offense; that he graduated from high school, had obtained certain academic credits through attendance at a junior college, had served a tour of duty in the armed forces of the United States, and that in the intervening years he had 'redeemed himself.' The amended petition also alleged that 'there will be no objection or impediment to the enforcement of an order expunging the aforesaid record by the public safety department of Dade County.' In his answer to the amended petition, the sheriff denied that allegation.

Aside from the foregoing allegations, the only matter submitted by the amended petition as a basis or ground for expunging the records was that the petitioner had made an application to Pan American World Airways for a job, in which he had informed them of the said arrest and its disposition by the court, and that he had been informed by Pan American that the company would not employ him because of the existence of the records of the offense but that if the records were expunged they would hire him.

Both the petitioner and the sheriff filed motions for summary judgment. Petitioner filed an affidavit by which he confirmed the allegation relating to his application for a job at Pan American; stated that at the time he pled guilty and was placed on probation the judge had told him 'there would be no record of this matter;' and stated that because of the existence of records relating to the case he was required to obtain character references when he applied for enlistment in the Armed Forces. In support of the sheriff's motion for summary judgment, he filed an affidavit of the employee of his office who was in charge of the records. In that affidavit it was stated that the records were kept under security conditions, available only to law enforcement and governmental agencies; that they were not open to inspection of employers, nor were their contents revealed on request of employers; that no inquiries had been received relating to Mulkey's records; and that no one other than himself and the sheriff's attorney had reviewed the contents thereof.

The circuit court granted judgment in favor of the plaintiff, or petitioner. The judgment ordered the sheriff to expunge and destroy all records relating to the petitioner's criminal case which were in his possession or control including fingerprints and photographs, and to obtain the return of copies thereof which had been sent to the FBI and destroy them. The judgment also ordered the judges of the criminal court of record to direct their clerk to seal the file of the case in that court (No. 59--5544), and ordered the clerk of the circuit court to seal the file of this case in the circuit court. The defendant sheriff then filed this appeal. We find merit in the appeal, and reverse.

We agree with the contention of the appellant that the action of the circuit court in ordering the expunging and destruction of the records relating to the petitioner's offense, and for the sealing of the court records of the case, on the basis of the showing in the amended petition, was improper and constituted error. As pointed out by the appellant, the discretion to make the fingerprint records was placed in the sheriff alone, by virtue of the authorizing statute, and there is no statutory provision for the expunging or destruction of such records in the event of acquittal, dismissal of the charge, or in case of probation. ³

In making a record of the fingerprints of the petitioner in 1959, the sheriff was acting under a statute which stated that it was his Duty to do so when in his opinion it was necessary for the protection of the public. The fact that the sheriff made the fingerprint records of the petitioner following his arrest is sufficient to establish, in the absence of a showing to the contrary, that the then sheriff was of the opinion that such action was necessary for the protection of the public. This is so because there is a presumption that public officials act properly in the performance of their duties, and because it seems obvious that if the sheriff who acted in 1959 had been of the opinion that there was no public necessity to take the fingerprints, it is unlikely that they would have been taken. By intervening and denying the allegation of the petition which implied that the sheriff was not opposed to the expunging of the records in question, and by opposing the petition in the trial court and taking this appeal from the judgment granting the petition to expunge, the incumbent sheriff has adequately demonstrated his opinion that it is in the public interest for the fingerprint records so taken to be retained.

It is well settled that when a sheriff or police officer, proceeding under the common law without express legislative authority, and a fortiori when acting under legislative authority, makes fingerprint records of one charged with or convicted of an offense, a court may not order those records expunged or destroyed, even when the accused has been acquitted or the charge dismissed, In the absence of a statute making provision therefor, ⁴ (with an exception being observed in some of the authorities that a court of equity can expunge such records on a showing of strong equitable reasons). See United States v. Kelly, 2d Cir. 1932, 55 F.2d 67, 83 A.L.R. 122; Sterling v. City of Oakland, Cal.App.1962, 24 Cal.Rptr. 696; State ex rel. Mavity v. Tyndall, 224 Ind. 364, 66 N.E.2d 755; reaffirmed in 225 Ind. 360, 74 N.E.2d 914, appeal dismissed 333 U.S. 834, 68 S.Ct. 609, 92 L.Ed. 1118, rehearing denied, 333 U.S. 858, 68 S.Ct. 732, 92 L.Ed. 1138; Voekler v. Tyndall, 226 Ind. 43, 75 N.E.2d 548; Roesch v. Ferber, 48 N.J.Super. 231, 137 A.2d 61; Statman v. Kelly, 47 Misc.2d 294, 262 N.Y.S.2d 799.

The underlying reason for so holding is that upon the balancing of the interests between the individual who seeks to expunge the records, on the one hand, and the sheriff or police as the representative of the public to make and retain them, on the other hand, the balance of interest lies with the sheriff (or police) and the public. In so deciding, the Indiana Supreme Court in State ex rel. Mavity v. Tyndall, supra, cited Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 168 A.L.R. 430, and quoting therefrom said: "But the right of privacy has its limitations. Society also has its rights," and in dealing with the same problem in a subsequent case (Voelker v. Tyndall, Supra) the Indiana Court said:

'Appellant bases his claim for possession and damages for detention upon the doctrine of the Right of Privacy. This is a well-established doctrine, derived from natural law and guaranteed by both the Federal and State Constitutions. As between man and man it must be respected. Appellant has cited many authorities to that effect.

'However, this right has its limitations. Society too, has its rights. Under our form of government citizens have rights--which even the government may not invade and should the government trespass upon such rights the courts should grant redress. ...