Metropolitan News-Enterprise


Monday, July 29, 2002


Page 5


Detained Defendant May Be Ordered to Give Fingerprint, Court Rules


By a MetNews Staff Writer


A suspect who is lawfully arrested and detained can be ordered to provide a fingerprint sample without any separate probable cause finding, the Fourth District Court of Appeal ruled Friday.

Although California cases are mixed on the question of whether the Fourth Amendment allows the taking of fingerprint exemplars without probable cause from a person illegally arrested, Justice William Rylaarsdam of Div. Three wrote, the outcome is clear if the arrest was proper.

The ruling comes in the case of Anthony Glenn Virgle, who prosecutors say held up two Buena Park restaurants and kidnapped and robbed employees. Virgle was arrested based in part on a print found at the crime scene that matched prints already on file with law enforcement officials.

Prosecutors said they needed the print to establish that the defendant was the same Anthony Glenn Virgle whose prints were on file.

Virgle gave the print and was bound over for trial. He moved under Penal Code Sec. 995 to set aside the information based on what he said was an improper order to give the print, claiming the magistrate violated his Fourth Amendment rights by failing to first make a probable cause determination.

That rendered the fingerprints illegal evidence, Virgile’s lawyers argued, making it improper to use them in the preliminary hearing and undermining the finding that there was probable to bind him over for trial.

The Fourth District issued a stay of trial to consider the question.

Rylaarsdam noted that federal case law bars detention to obtain a sample fingerprint unless the detention is supported by probable cause to arrest or is otherwise authorized by a judicial officer.

In California, he said, there are two cases holding that defendants’ Fourth Amendment rights were not violated by taking their fingerprints even though they were arrested illegally, because the detentions were judicially authorized at the time the prints were taken.

In a third case, the appeals court ruled that a suspect who was arrested illegally could not be compelled to give prints without first determining if there was probable cause to believe he committed the offense.

In Virgle’s case, Rylaarsdam said, the detention was proper because the print found at the scene matched one on file.

“The prosecutor’s inability to lay a proper foundation without the exemplar did not render [Virgle’s] detention illegal,” the justice said. “Absent a showing petitioner’s arrest and resulting detention were illegal, the magistrate did not violate petitioner’s Fourth Amendment rights by ordering him to provide a fingerprint exemplar.”


Copyright 2002, Metropolitan News Company