This article focuses on constitutional issues associated with fingerprinting suspects in investigative detention. Following a series of barracks larcenies, Naval Investigative Service (NIS) investigators fingerprinted approximately 100 servicemembers. All those ordered to report to the NIS office for fingerprinting had been present in the unit at the time of the offenses, and among those was the accused, who was later linked to the crime through his fingerprints. Before the accused reported to the NIS office there was no probable cause or reasonable suspicion to believe that he was in any way involved in the crimes. Were the fingerprints admissible?
United States v. Fagan points out the difficult questions that face investigators, lawyers, and judges, when the issue is raised as to what procedures are required in investigative detentions for the purpose of obtaining fingerprints. Unfortunately, aside from Supreme Court dicta and several state court decisions, there is little guidance in this area. It is not yet clear whether the guidance that does exist is even constitutional, and there are some major issues that surround investigative detentions.
Given the unique issues raised in the Fagan, and the problems it demonstrates, some careful consideration should be given to developing clear and definite principles which can be readily applied by a worldwide legal system. The most logical choice is a series of amendments to the Rules of Evidence that would address not only fingerprinting, but related evidence-gathering techniques which in themselves generally will not require a further invasion of privacy but which, at the outset, require seizure of the individual. Such changes would help ensure that the administration of criminal justice in the military is not haphazard or unprincipled.
David A. Schlueter, Investigative Detentions for Purposes of Fingerprinting, Army Law. 10 (Oct. 1988).