NCJ Number
7553
Journal
Columbia Law Review Volume: 72 Issue: 4 Dated: (APRIL 1972) Pages: 712-745
Date Published
1972
Length
34 pages
Annotation
CONSTITUTIONAL IMPLICATIONS AS WELL AS PRACTICAL ADVANTAGES FOR POLICE, OF PROPOSED RULE ALLOWING POLICE TO OBTAIN FINGERPRINTS, ETC, WITHOUT AN ARREST.
Abstract
THE SUPREME COURT HAS RULED THAT THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRINATION DOES NOT EXTEND TO NON-TESTIMONIAL EVIDENCE SUCH AS FINGER PRINTS AND BLOOD OR URINE SAMPLES. A PROPOSED FEDERAL RULE WOULD ALLOW A FEDERAL MAGISTRATE TO ISSUE AN ORDER REQUIRING THE PERSON NAMED TO APPEAR AND SUBMIT HIMSELF TO CERTAIN TESTS. THE ORDER WOULD BE ISSUED UPON AN AFFIDAVIT OF A FEDERAL LAW ENFORCEMENT OFFICIAL THAT THERE ARE REASONABLE GROUNDS TO SUSPECT THAT THE PERSON NAMED COMMITTED AN OFFENSE. THIS STANDARD IS PRESUMABLY LESS THAN THE STANDARD OF PROBABLE CAUSE FOR ARRESTS. THIS ARTICLE REVIEWS APPLICABLE CASE LAW AND SUGGESTS THAT, IN TERMS OF PROBABLE CAUSE, THE FOURTH AMENDMENT'S TRADITIONAL REQUIREMENT FOR SEARCH AND SEIZURE, THE PROPOSED RULE 41.1 MAY PRESENT CONSTITUTIONAL PROBLEMS. RECOGNIZING, HOWEVER, THAT THERE IS AUTHORITY THAT SUGGESTS THAT THE PROBABLE CAUSE STANDARD IS NOT RIGID OR ABSOLUTE AND MANY VARY WITH THE CIRCUMSTANCES, THE ARTICLE SUMMARIZES THE CONSIDERATIONS THAT SUPPORT ADOPTION OF THE RULE. IT SURVEYS SOME OF THE RULE'S PROVISIONS TO IDENTIFY PROBLEM AREAS AND SUGGEST MODIFICATIONS TO CLARIFY THE RIGHTS AND DUTIES OF THE SUSPECT AND THE GOVERNMENT. AUTHOR ABSTRACT MODIFIED