Opinion
CASE NO. 2:11-CR-00290-LKK
10-27-2011
UNITED STATES OF AMERICA, Plaintiff, v. DANIEL RICHARD GARCIA, Defendant.
BENJAMIN B. WAGNER United States Attorney MICHAEL D. ANDERSON Assistant U.S. Attorney
BENJAMIN B. WAGNER
United States Attorney
MICHAEL D. ANDERSON
Assistant U.S. Attorney
ORDER RE GOVERNMENT'S MOTION TO COMPEL FINGERPRINTS
Introduction
The government moves this Court to enter an order compelling the defendant, Daniel Richard Garcia, to provide fingerprints to agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Background
The government makes its request because a partial print has been recovered from the detonated explosive device recovered in this case. Since the print appears to be from the tip or sides of an individual's finger, the defendant's fingerprint card currently in the government's possession is insufficient to make a comparison.
The government expects that these prints will be used by one party or the other at trial.
Defense counsel Michael Petrik has informed counsel for the government that he has no objection to the government's motion. Mr. Petrik, however, asked that he be present when the fingerprints are taken. Although this is not required under the applicable law, the government has no objection to this request and will work with Mr. Petrik to coordinate a mutually convenient time for the fingerprinting.
The defendant is currently detained in U.S. Marshal's custody in Butte County.
Legal Authority
Compelling an accused to provide fingerprints does not violate his or her Fifth Amendment privilege against self-incrimination because fingerprints are an identifying physical characteristic rather than a communication. See Gilbert v. California, 388 U.S. 263, 266-67 (1967)(handwriting exemplar); United States v. Sandoval-Sandoval, 487 F.3d 1278, 1280 (9th Cir. 2007)(finding a court may compel fingerprints from a defendant for identification purposes); In Re Doe, 860 F.2d 40, 46-47 (2nd Cir. 1988) (compelling defendant to produce fingerprints is not a Fifth Amendment Violation because it is not testimonial).
Conclusion
For the foregoing reasons, the United States respectfully requests that the Court grant the government's motion to compel fingerprints.
BENJAMIN B. WAGNER
United States Attorney
MICHAEL D. ANDERSON
Assistant United States Attorney
ORDER
IT IS HEREBY ORDERED that the defendant Daniel Richard Garcia shall provide major case prints, including prints of the tips and sides of his fingers, palms and hands, to ATF Agent Jolene Blair, or another federal agent designated by Agent Blair, for the purposes of fingerprint comparison.
LAWRENCE K. KARLTON
SENIOR JUDGE
UNITED STATES DISTRICT COURT