Sterling v. City of Oakland

• Decision Date: 28 September 1962
• Citation: 24 Cal.Rptr. 696,208 Cal.App.2d 1
• Court: California Court of Appeals Court of Appeals
• Parties: Gladys STERLING, Plaintiff and Appellant, v. CITY OF OAKLAND, a municipal corporation, Edward M. Toothman, et al., Defendants and Respondents. Civ. 19732.

Page 696

24 Cal.Rptr. 696

208 Cal.App.2d 1

Gladys STERLING, Plaintiff and Appellant, v. CITY OF OAKLAND, a municipal corporation, Edward M. Toothman, et al., Defendants and Respondents.

Civ. 19732.

District Court of Appeal, First District, Division 3, California.

Sept. 28, 1962.

Haet, Dominguez, Speiser & Williams, Goldstein, Brann & Stern, San Francisco, for appellant.

Hilton J. Melby, City Atty., Frederick M. Cunningham, Deputy City Atty., Oakland, for respondents City of Oakland and Edward M. Toothman.

DEVINE, Justice.

Plaintiff, appellant, brought this action seeking an injunction to prevent defendants, the City of Oakland and its chief of police, from keeping on file her photograph and fingerprints, and seeking declaratory relief to determine if defendants are entitled to maintain a record of her arrest and to keep the said photograph and fingerprints, following dismissal of misdemeanor charges which had been made against her. The pleading in respect of the injunction contains allegations that 'by reason of said police record plaintiff is more liable to arrest by police officers on the grounds that she has a prior arrest record and said factor is considered by police officers in making arrests of individuals; that in the event plaintiff is ever arrested again or charged and convicted of a crime, the fact that the Oakland police records show she has been arrested previously will be used by the court in determining what sentence to impose.' There is no allegation that the fingerprints and photograph would be disseminated generally, or at all, and there is no allegation that the photograph would be exhibited in any way to the public, or that it would be available for public inspection. Demurrer was overruled, but at trial the court sustained objection to testimony offered by plaintiff, on the ground that the complaint does not state a cause of action, and rendered judgment in favor of defendants on that ground. Plaintiff appeals from the judgment.

The facts stated in this paragraph are those alleged in the complaint. On September 21, 1957, Mrs. Sterling was a passenger in a Yellow Cab driven by defendant Oran Sheppard. Upon arriving at her home she offered to pay her $1.90 fare with a $20 bill. The driver refused this tender, saying that plaintiff should know better than to pay with a $20 bill. Sheppard then stated that he would drive somewhere in order to get change, but that he would charge the additional fare. Plaintiff refused to do so, but Sheppard still proceeded to drive to a cafe at Seventh and Pine Streets in Oakland (about three blocks from plaintiff's residence) and refused to allow plaintiff to leave the cab until the additional fare was paid. When plaintiff refused to pay, Sheppard called the Yellow Cab Company office and the police officers were summoned. A citizen's arrest was made by Sheppard.

While being held by the police officers, plaintiff had to submit to fingerprinting and photographing, and a record was made of the arrest. Plaintiff seeks to have the prints and photograph returned or destroyed. On October 24, 1957, the charges against plaintiff (violation of section 5-14.181 of the Oakland Municipal Code [refusal to pay taxicab fare]) were dismissed because of the failure of Oran Sheppard to appear in court to testify.

The cab company was a party defendant to this action, in counts charging false imprisonment and malicious prosecution, and a jury returned verdicts on both counts for compensatory and punitive damages, although the awards were small in amount. Plaintiff also sued nine police officers; verdict was in their favor. There is no appeal from the judgment for plaintiff against Yellow Cab Company nor from judgment in favor of defendants, the police officers.

Appellant contends that the police had no right to take her fingerprints and photograph upon charge of the misdemeanor, and that, even if they had such right, they must, on demand, return or destroy them after her dismissal.

There is but little reference to fingerprints and photographs of offenders or suspected offenders against the law, in this state, except in the statutes relating to records of convicted felons, certain offenders against children, fugitives from justice, and possessors of various kinds of contraband, in Penal Code sections 11100-11112. Regarding other persons arrested or accused, there is no specific statute. In 1959, subdivision 21 was added to section 7 of the Penal Code, and it reads: 'To 'book' signifies the recordation of an arrest in official police records, and the taking by the police of fingerprints and photographs of the person arrested, or any of these acts following an arrest.' In the same year, section 851.5 of the Penal Code was enacted, giving any person arrested the right to make a telephone call immediately after he is booked, under certain circumstances (this was amended to two calls, and the circumstances were somewhat changed by amendment in 1961), with the implication that recordation, photographing and fingerprinting, or any one or more of these acts, would have been done by the arresting or custodial officers.

In general, fingerprinting and photographing of accused persons, even before conviction, has been held valid in the absence of statute, upon the grounds of a means of identifying the accused and of assisting in the recapture in event he escapes or flees before trial. (Downs v. Swann, 111 Md. 53, 73 A. 653, 23 L.R.A.N.S., 739; State ex rel. Bruns v. Clausmeier, 154 Ind. 599, 57 N.E. 541, 50 L.R.A. 73; Bartletta v. McFeeley, 107 N.J.Eq. 141, 152 A. 17; People v. Sallow, 100 Misc. 447, 165 N.Y.S. 915; United States v. Cross, 20 D.C. 365.)

More important, however, to the decision in the case than the subject of the right to take fingerprints and photographs at all, is the question whether fingerprints and photographs, once taken, must be delivered to the accused, on demand, when the accused is dismissed. We are of the opinion that plaintiff's complaint does not state a cause of action, and that the judgment should be affirmed. We base our decision chiefly upon the omission of the Legislature of this state to prescribe any duty to return of photographs or fingerprints, and upon certain statutory relief which does exist in this state; but we find some support for the judgment in the decisions of other states.

Addressing ourselves first to the decisions in other states, we find that there are but few; on the whole, however, they tend to support the judgment herein. The cases cited by appellant, are given herein, with brief statements of the reasons why we do not deem them persuasive in the case before us: (1) Two Louisiana cases decided in 1905 and 1906, Itzkovitch v. Whitaker, 115 La. 479, 39 So. 499, 1 L.R.A.N.S., 1147, and Schulman v. Whitaker, 117 La 704, 42 So. 227, 7 L.R.A.N.S., 274, in which placing of pictures in a 'rogues' gallery' before trial was held enjoinable. These cases were decided over 50 years ago, and had to do with 'rogues' galleries' as they then existed. (2) State ex rel. Reed v. Harris (1941) 348 Mo. 426, 153 S.W.2d 834, in which it was held that a cause might be stated (although it was not yet stated) against circularization of fingerprints and photographs of an alleged traffic violator. The case had to do with circularization, not merely retention. (3) Miller v. Gillespie (1917) 196 Mich. 423, 163 N.W. 22, L.R.A.1917E, 774, in which the court held that the arrest report need not be returned on acquittal, and there was dictum taken from the Louisiana cases, supra, on placing of photographs in a rogues' gallery. The holding of the case, as distinguished from the dictum, had nothing to do with the matter before us. (4) State ex rel. Mavity v. Tyndall (1946) 224 Ind. 364, 66 N.E.2d 755, appeal dismissed 333 U.S. 834, 68 S.Ct. 609, ...