United States v. Kelly

• Citation: 51 F.2d 263
• Parties: UNITED STATES v. KELLY.
• Decision Date: 15 April 1931
• Court: U.S. District Court — Eastern District of New York

51 F.2d 263 (1931)

UNITED STATES v. KELLY.

District Court, E. D. New York.

April 15, 1931.

Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (J. Bertram Wegman, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.

Arthur A. Kestler, of Brooklyn, N. Y., for defendant.

INCH, J.

From the motion papers it appears that one Mortimer Kelly was arrested on the 16th day of February, 1931, by prohibition agents, charged with having sold to an agent a quart of gin. He was thereupon arraigned before a United States commissioner. It does not appear what has happened further in the case. I infer however, if held by the commissioner, he has not as yet been tried.

It further appears that immediately after his arrest and before his arraignment before the commissioner, and over his protest, the prohibition agents took the finger prints of Kelly "for the use of the Bureau of Prohibition."

These finger prints were ordered taken pursuant to the direction of the United States attorney for this district, through one of his assistants.

This method of identification constitutes a new departure in such arrests for such offenses.

In a sense, I am informed, this case of Kelly presents a so-called "test" case as to the right of the prohibition administrator and his agents to continue to take finger prints of a person not only accused of selling a quart of intoxicating liquor or less than a gallon, but of any misdemeanant prior to conviction.

Whether or not, even if guilty, the offense of Kelly is a felony or misdemeanor will depend on further and different facts, none of which is present in the papers now before me.

Kelly by this motion moves for a return to him of his finger print record on the ground that the taking thereof was unlawful, and to restrain the use thereof on the ground that the taking of them violated the Fifth Amendment of the Constitution of the United States.

The United States attorney has duly appeared for the prohibition administrator.

Whether the taking of the finger prints was lawful or unlawful, it was plainly a step in connection with the arrest and arraignment and possible trial of Kelly for violation of the Prohibition Act (27 USCA), all of which was under the control of said attorney.

It seems to me that sufficient authority and jurisdiction is present for this court to entertain and decide the motion. Go-Bart Importing Co. v. U. S., 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. 374.

The importance of this motion requires, it seems to me, that the court should decide the real purpose of the motion aside from possible technical objections to such immediate decision, although none is made, and should give its views at once as to the legality of this new departure.

The right to take finger prints of those convicted of felonies is not questioned here.

It is asserted by counsel for both parties that no federal statute exists expressly directing the taking of finger prints of this defendant.

In deciding the motion, therefore, the court is careful to confine its decision within the limits of the motion.

This issue, presented by the motion papers, is, whether it is lawful for the prohibition administrator to finger print, upon arrest and before arraignment or conviction, a citizen charged with the sale of a quart, or less than a gallon, of intoxicating liquor, even though such procedure is suggested and directed by the United States attorney, through an assistant charged with the duty of prosecuting such offense.

The question of the value of finger prints as a means of identification has been practically settled. It does not seem to me that it can be disputed. See the very thorough opinion of Judge Wadhams, People v. Sallow, 100 Misc. Rep. 447, 165 N. Y. S. 915.

Names and appearances may easily be assumed and changed and while, like everything else that is human, occasional mistakes appear, it is exceedingly rare for this means of identification to fail. It is said in People v. Sallow, supra, 100 Misc. Rep. 447, 165 N. Y. S. 915, 918, page 918: "It is claimed that by means of finger prints the Metropolitan Police force of London during the 13 years from 1901 to 1914 have made over 103,000 identifications, and the Magistrates' Court of New York City during the 4 years from 1911 to 1915 have made 31,000 identifications, without error."

There are many other evidences of the usefulness of finger prints in various ways not involving identification in criminal trials.

It may even be that to overcome honest objection to this mode of identification is a matter of necessary civic education and of course, because of its accuracy, those who commit crimes are particularly opposed to its use.

Nevertheless that there has been sincere opposition to the compelling of a person to submit to the taking of his fingerprints and that it is considered an indignity and an invasion of personal rights, which could only be obtained after and pursuant to legislation on the subject, seems to be its history in this state.

Two brief citations from state cases may be made. The first is as follows: "There are certain rights pertaining to mankind which have their origin independent of any express provision of law, and which are termed `natural rights.' One of these is the right of personal liberty. This includes not only absolute freedom to every one to go where and when he pleases, but the right to preserve his person inviolate from attack by any other person." People ex rel. Gow v. Bingham, 57 Misc. Rep. 66, 107 N. Y. S. 1011, page 1014. See also 5 Corpus Juris, § 73, page 433. "The right to do this (taking finger-prints) in advance of conviction and in the absence of statutory authority has been denied."

Even after the Legislature authorized the taking of finger prints we find this statement in regard to finger prints. "An innocent man accused of crime is sometimes compelled to make sacrifice and undergo suffering for the benefit of society. Like payment of taxes and service upon juries, it is part of the price paid for the privilege of living in a country governed by law. One, for the good of all, may be required to submit to imprisonment, incur expense, and endure mental distress, because the state cannot exist without the preservation of order, and order cannot be preserved without the punishment of the guilty, which necessarily involves, sometimes, the trial of the innocent." Molineux, v. Collins, 177 N. Y. 395, page 399, 69 N. E. 727, 728, 65 L. R. A. 104.

It has therefore been the policy of this state not to authorize or allow the taking of finger prints unless pursuant to statute, that is, by an expression of the will of the people through their Legislature.

As I have already said, both counsel before me assert, and after search I am compelled to agree, that there is no direct federal statute directly authorizing the taking of finger prints of a defendant such as Kelly is.

The United States attorney claims that this absence of statute is not necessarily an insurmountable obstacle for this court can adopt and use the statute now the law in the state in which this court is located, and he specifically refers to section 940 of the Code of Criminal Procedure of this state, which went into effect July 1, 1928. This section is as follows:

"Identifying criminals; taking of fingerprints. — In order that the courts and public officials dealing with criminals may have accurate information as to the identity of persons charged with crime, there is hereby conferred and imposed upon the chief of police or peace officer performing such functions, in each city, town and village, and upon sheriffs, members of the state constabulary, the railway police, the aqueduct police, the state park police and all other peace officers making arrests, the power and duty of causing to be taken, upon arrest, finger and thumb prints, and if necessary the photograph, of every person arrested and charged with a felony or with any of the misdemeanors and offenses specified in section five hundred and fifty-two of this code."

It will be observed that this section, which is so depended upon for the right here to take the finger prints of Kelly, charged with the sale of a quart of gin, relates to felonies, and it is only in case of expressly specified misdemeanors that the right is allowed even by this statute. These express misdemeanors have nothing whatever to do with federal offenses against the National Prohibition Act.

Before this court can thus indirectly enforce the procedure of a state statute, recourse should be had to some federal statute which allows it. The Conformity Act Rev. St. § 914, title 28, USCA § 724 which directs that practice shall conform as near as may be to that of the state covers only civil causes.

The United States Attorney therefore refers for this authority to Rev. St. § 1014 (title 18, USCA § 591). This statute, enacted in 1896, and amended in 1901, states in substance that an offender against any law of the United States may be arrested, imprisoned, and bailed "agreeably to the usual mode of process against offenders in such State."

That Congress could have meant thereby that a prohibition administrator in the future might finger print, in advance of conviction, violators against the National Prohibition Act (27 USCA) takes considerable imagination, yet, assuming that this is available, a reference to the state statute gives no such right in cases where the offense charged may be a misdemeanor.

A nearer statute than the one cited by the United States Attorney is Rev. St. § 722 (title 28 USCA § 729). This statute has been called by Justice Clifford of the Supreme Court in his dissenting opinion (Tennessee v. Davis, 100...