Summary
adopting Vice-Chancellor Bigelow's second Chancery opinion in toto
Summary of this case from Roesch v. FerberOpinion
Submitted February 17th, 1933.
Decided April 27th, 1933
1. Defendants having voluntarily brought into court and surrendered photographs, fingerprints and measurements of complainant made when he was arrested by the police on a criminal charge for which he was not later indicted, complainant's prayer that these records be removed from the police department files becomes academic.
2. Defendants sent copies of these records to the identification headquarters in New York and Washington. Held, that since this was not done with impropriety and since defendants have no control over these governmental agencies, this court will not compel defendants to exercise an authority they do not possess.
3. The police entered complainant's name on the police records, together with an alias designation. Since it is not shown that the record may be used to the injury of the complainant, defendants will not be ordered to expunge the alias on the police records.
On appeal from a decree advised by Vice-Chancellor Bigelow, whose opinion is as follows:
"This is a continuation of the litigation reported in Bartletta v. McFeeley, 107 N.J. Eq. 141; affirmed, 109 N.J. Eq. 241. Complainant had been arrested by the police of Hoboken, his fingerprints taken, and he had been photographed. Four days later, he filed his bill against defendants, the director of public safety and other officials of Hoboken, praying that they be decreed to surrender the photographs and fingerprints. Complainant based his case on the theory that it was unlawful for the police to photograph and fingerprint him. I came to a contrary conclusion and advised a decree dismissing the bill. On appeal, the decree was affirmed. Mr. Justice Parker, in a concurring opinion, pointed out that while the police were justified in taking the photographs and fingerprints, yet it might not be lawful for them to retain the photographs and fingerprints unless complainant be indicted and convicted. As to this, the learned justice expressed no opinion.
"Complainant then filed a new bill. He shows that he has not been indicted and that he is protected from prosecution by the statute of limitations. I assume that he is innocent of the charge for which he was arrested. He prays (1) that defendants remove from the rogues' gallery of Hoboken and surrender to him the photographs, fingerprints and measurements of complainant and all copies thereof; (2) that defendants cause to be removed from the rogues' gallery of other cities copies of his photographs and fingerprints, and (3) that defendants expunge the words `alias Luke Adams' after complainant's name in the records of the police department of Hoboken.
"When the case came on to be heard, the defendants voluntarily brought into court and surrendered the photographs, fingerprints and measurements of complainant and all copies thereof which were in the police department of Hoboken, and so the principal question which complainant brought before the court became academic. I need not further consider this branch of the case.
"The bill of complaint alleges and the answer admits that copies of the fingerprints and photographs were mailed to police headquarters, New York City, to the bureau of identification at Albany, New York, and to the bureau of investigation, Washington, District of Columbia. The defendants have no control over these governmental agencies. The court will not attempt to compel defendants to exercise an authority which they do not possess. Furthermore, it does not appear that defendants were guilty of any impropriety in forwarding the fingerprints and copies to these offices. If they had committed a wrong against complainant, it might be that the court would require them to endeavor to right the wrong, even though defendants have no actual power in the premises. But this situation does not appear.
"The third branch of relief sought relates to the `alias Luke Adams.' Complainant alleges `that he was booked as Frank J. Bartletta, alias "Luke Adams," which last appellation he never assumed or was ever known by.' This allegation has been admitted or proved. The exact meaning of the word `booked' does not appear but I take it that the charge against complainant and the alias were written in some record book in the police station. Whether this record is secret or open to public inspection, whether it is kept pursuant to custom, ordinance or statute, I am not informed. I can see that the criminal charge against complainant remaining on the records of the police department is a source of real embarrassment to him. The addition to his name of the `alias Luke Adams' is, by comparison, a trifling matter. No proof has been offered to show that the book entry, if it remains as it now is, will tend to involve complainant in litigation or injure him in any manner. Complainant relies upon Vanderbilt v. Mitchell, 72 N.J. Eq. 910, in which it was held that this court had jurisdiction to require the cancellation of a false birth record in the bureau of vital statistics of this state. But the record in that case was evidential by statute and could be used to harass the complainant and his heirs in litigation. The record of arrests in Hoboken is not evidential for any purpose. How it can be used to the disadvantage of complainant, I do not know. I am doubtful of the authority of this court to order an alteration of a record of the police department in the absence of proof that the record may be used to the injury of complainant. A precedent which might lead to the alteration or suppression of criminal complaints would be dangerous. Complainant's plight is not serious enough to induce the court to exercise the delicate power of ordering the record changed.
"The bill of complaint is dismissed. The parties have stipulated that no costs should be awarded in the cause."
Mr. Anthony P. La Porta, for the appellant.
Mr. Horace L. Allen, for the respondents.
The decree under review is affirmed, for the reasons given in the opinion of Vice-Chancellor Bigelow.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 14.
For reversal — None.