United States v. Fagan

28 M.J. 64, 1989 CMA LEXIS 21, 1989 WL 34305
CourtUnited States Court of Military Appeals
DecidedApril 28, 1989
DocketNo. 59,679; NMCM 86 2470
StatusPublished
Cited by16 cases

This text of 28 M.J. 64 (United States v. Fagan) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fagan, 28 M.J. 64, 1989 CMA LEXIS 21, 1989 WL 34305 (cma 1989).

Opinions

Opinion of the Court

COX,. Judge:

The question in this case is whether appellant was “seized” in violation of the Fourth Amendment to the Constitution.1 The facts of the case were well summarized by the Court of Military Review:

“The charges arose from wrongful entries which occured at the enlisted barracks of 1st Battalion, 12th Marines, located at Marine Corps Air Station, Kaneohe Bay, Hawaii. Two of the entries involved room 201 of building 1655 [65]*65and room 113 of building 1656 and resulted in the larceny of valuable property (a television, video cassette recorders, a telephone, and a camera, among other valuables) belonging to two of the occupants of those rooms, Corporal (CPL) S and Lance Corporal (LCPL) F, respectively. The circumstances of these two entries were similar in that they involved thefts of high value items from the victims’ wall lockers, and they both occurred while the victims were away from their rooms taking part in battalion exercises at off-island training areas. During the period in which these entries occurred, the battalion had been in a heightened awareness about such matters and no one remembered seeing any strangers in or around the rooms. Concluding that the perpetrator of the offenses must have been someone from within the battalion and successfully having lifted latent fingerprints from the rooms during his investigation, the Naval Investigative Service (NIS) agent conducting the investigation, Special Agent S, sought and obtained permission from the Commanding Officer of 1st Battalion, 12th Marines, to fingerprint all Marines in the battalion who had not gone to the off-island training exercises at the time of the occurrence of the entries. Approximately 100 Marines fit this category. An officer within the battalion was assigned to assist the NIS investigative agent in obtaining fingerprints. The NIS investigator would contact the officer by telephone and request that he provide the agent with ‘15 or 20 members of the battalion at a given time and a given place’ for fingerprinting. The officer maintained the master list of all those persons to be fingerprinted. The NIS agent did not specify whom he wanted to see. He merely asked for a given number of persons, and the procedures were coordinated in such a way ‘as to cause the battalion the least amount of inconvenience.’ On 29 March 1985 the appellant was ordered by his unit to report to NIS for fingerprinting and was told that he would not receive his paycheck until he did. Under protest, the appellant proceeded unaccompanied to NIS. By then, the other Marines had been fingerprinted.
Despite the efforts of NIS, fingerprinting exemplars could not be taken from the appellant on 29 March, at least on the first attempt. NIS then visually examined his fingertip pads and found that all ten digits had been uniformly scraped. Expert testimony, during the merits, revealed the scrapes had been self-inflicted some 12 to 24 hours prior to the appellant reporting to NIS. A closer visual examination of the left ring finger further revealed distinct ridge characteristics of the fingerprint strikingly similar to those found on a latent fingerprint taken from the room of one of the victims, which characteristics were not present in the approximate 100 persons previously fingerprinted by NIS. NIS immediately advised the appellant of his Article 31, 10 U.S.C. § 831 Miranda rights, interrogated him, and later the same day fingerprinted and photographed his hands.
“The appellant understood he was not free to leave the presence of NIS until released later in the day, and the trial judge made specific findings of fact that the appellant was subjected to custodial interrogation.
“As the appellant’s fingerprints taken on 29 March were unreadable, NIS again approached the appellant this time at a military hospital, on 2 August 1985, where the appellant was subject to the direct authority of the hospital commander. Nevertheless, NIS kept the original commander apprised of the investigation although NIS did not request from the original commander permission to fingerprint the appellant. Upon reporting to the hospital, NIS checked in at the security desk and with Major Tribbey, the ward nurse who was in charge of the space where the appellant was assigned. He advised the ward nurse of his desire to fingerprint the appellant. Permission was granted. NIS then sought permis[66]*66sion from the appellant, who refused. NIS requested Hospitalman First Class Morley, Navy-Marine Corps liaison officer, to order the appellant to submit to fingerprinting. Morley ordered the appellant as requested, but again the appellant refused. NIS elected not to pursue the matter further until the appellant was released from the hospital. The evidence reveals that NIS made it known to the appellant, either directly or indirectly, that he would be fingerprinted upon his release from the hospital even if it meant effecting his arrest. The appellant, upon being released from the hospital, elected to proceed to NIS, on 6 August 1985, for fingerprinting rather than chance the embarrassment of being arrested by NIS for refusing to provide fingerprints in the field. Appellant was fingerprinted on 6 August 1985 at NIS without incident, and his prints were linked to the latent prints taken from the crime scene. As a result, the appellant was interrogated on 1 October 1985 and made yet another statement.”

24 MJ 865, 866, 869, 870 (1987).

We start our analysis with several observations. First, we agree with the court below that from the point on March 29, 1985, when the NIS agents noticed that appellant had attempted to obliterate his fingerprints and that the residual ridges appeared to match prints taken from the scene of the offenses, there was probable cause to apprehend appellant and to secure his fingerprints with or without consent. Thus, our concern in this case is only with whether there was any impropriety in the process leading up to these initial observations.

Second, people ordinarily do not have enforceable expectations of privacy in their physical characteristics which are regularly on public display, such as facial appearance, voice and handwriting exemplars, and fingerprints. Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 2003, 36 L.Ed.2d 900 (1973); United States v. Mara, 410 U.S. 19, 21, 93 S.Ct. 774, 775, 35 L.Ed.2d 99 (1973); United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973); Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). Therefore, again, the only question here is whether it was proper for appellant to be placed in the position that the agents were able to examine his fingerprints. The leading cases in the civilian area are Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985), and Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

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Bluebook (online)
28 M.J. 64, 1989 CMA LEXIS 21, 1989 WL 34305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fagan-cma-1989.