In re Order Requiring Fingerprinting of a Juvenile

Alice Robie Resnick, J. The sole issue presented in this case is: Under what circumstances may a juvenile court judge order the fingerprinting of a juvenile pursuant to R.C. 2151.313 (A)(1)? R.C. 2151.313 provides in pertinent part: “(A)(1) Except as provided in division (A)(2) of this section, no child shall be fingerprinted or photographed in the investigation of any violation of law without the consent of the juvenile judge. “(2) Fingerprints and photographs of a child may be taken by law enforcement officers when the child is arrested or otherwise taken into custody for the commission of an act that would be a felony if committed by an adult, without the consent of the juvenile judge, when there is probable cause to believe that the child may have been involved in the commission of the act. A law enforcement officer who takes fingerprints or photographs of a child under this division immediately shall inform the juvenile court that the fingerprints or photographs were taken, and shall provide the court with the identity of the child, the number of fingerprints and photographs taken, and the name and address of each person who has custody and control of the fingerprints or photographs or copies of the fingerprints or photographs.” Juvenile proceedings are not crimi [126] nal in nature. State v. Carder (1966), 9 Ohio St. 2d 1, 11, 38 O.O. 2d 1, 7, 222 N.E. 2d 620, 627; State v. Davis (1978), 56 Ohio St. 2d 51, 10 O.O. 3d 87, 381 N.E. 2d 641. However, it is well-settled that a juvenile is as entitled as an adult to the constitutional protections of the Fourth Amendment. Id. at 56, 10 O.O. 3d at 90, 381 N.E. 2d at 645. The taking of the juvenile into custody for the purpose of obtaining nontestimonial evidence, such as fingerprints, is clearly within the scope of the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution. “Detentions for the sole purpose of obtaining fingerprints are no less subject [than other investigatory detentions] to the constraints of the Fourth Amendment. * * *” Davis v. Mississippi (1969), 394 U.S. 721, 727. The crucial question then is whether this intrusion can be constitutionally justified in the absence of a finding of probable cause. The United States Supreme Court in Hayes v. Florida (1985), 470 U.S. 811, 817, in addressing circumstances when fingerprinting may be constitutionally permissible, stated: “We also do not abandon the suggestion in Davis [v. Mississippi (1969), 394 U.S. 721] and Dunaway [v. New York (1979), 442 U.S. 200] that under circumscribed procedures, the Fourth Amendment might permit the judiciary to authorize the seizure of a person on less than probable cause and his removal to the police station for the purpose of fingerprinting. We do not, of course, have such a case before us. We do note, however, that some States, in reliance on the suggestion in Davis, have enacted procedures for judicially authorized seizures for the purpose of fingerprinting. The state courts are not in accord on the validity of these efforts to insulate investigative seizures from Fourth Amendment invalidation. Compare People v. Madson, 638 P. 2d 18, 31-32 (Colo. 1981), with State v. Evans, 215 Neb. 433, 438-439, 338 N.W. 2d 788, 792-793 (1983), and In re an Investigation into Death of Abe A., 56 N.Y. 2d 288, 295-296, 437 N.E. 2d 265, 269 (1982).” (Footnote omitted.) The court in People v. Madson (Colo. 1981), 638 P. 2d 18, 31-32, in discussing the Colorado statute enacted to permit fingerprinting and other methods of nontestimonial identification on less than probable cause, stated: “Crim. P. 41.1 was an outgrowth of dicta in Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969), suggesting that limited intrusions based on less than probable cause might be constitutionally permissible under narrowly defined circumstances. Subsequent cases of the United States Supreme Court have addressed the propriety of such intrusions in various contexts. See, e.g., Michigan v. Summers, [452] U.S. [692], 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981); United States v. Cortez, 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); Terry v. Ohio [(1969), 392 U.S. 1]. These cases suggest that limited intrusions into privacy on less than probable cause are reconcilable with Fourth Amendment guarantees when the following conditions exist. First, there must be an articulable and specific basis in fact for suspecting criminal activity at the outset. Second, the intrusion must be limited in scope, purpose and duration. Third, the intrusion must be justified by substantial law enforcement interests. Last, there must be an oppor [127] tunity at some point to subject the intrusion to the neutral and detached scrutiny of a judicial officer before the evidence obtained therefrom may be admitted in a criminal proceeding against the accused.” Other states have also followed the dicta of both Davis v. Mississippi, supra, and Hayes v. Florida, supra, by enacting statutes and rules authorizing their courts to compel a person who is no more than a suspect to come forward and supply nontestimonial evidence. See 5A Ariz. Rev. Stat. Ann. Section 13-3905; 4A Idaho Code Section 19-625; N.C. Gen. Stat. Section 15A-271 et seq.; Utah Code Ann. Section 77-8-1 (lineups only). However, R.C. 2151.313(A)(1) appears to require immediate participation by the juvenile court judge, whereas in Madson, supra, it was held: “Last, there must be an opportunity at some point to subject the intrusion to the neutral and detached scrutiny of a judicial officer before the evidence obtained therefrom may be admitted in a criminal proceeding against the accused.” (Emphasis added.) Id at 32. In State v. Davis, supra, this court stated that “ ‘[t]he purpose of * * * [R.C. 2151.31 now 2151.313] is not to determine * * * admissibility into evidence [of fingerprints] but rather to conform to the theory that juvenile proceedings are not criminal in nature.’ ” Id. at 56, 10 O.O. 3d at 90, 381 N.E. 2d at 645. Therefore, the last factor of Madson has no relevance to the validity of an order issued pursuant to R.C. 2151.313. R.C. 2151.313, when read in its entirety, appears to permit a juvenile court judge to order fingerprinting without finding probable cause in certain situations. We, however, follow the reasoning of the Madson court and hold that before an order for fingerprinting may be issued by the juvenile court judge pursuant to R.C. 2151.313 (A)(1), there must be a finding that: (1) there is an articulable and specific basis in fact for suspecting criminal activity; (2) the intrusion is justified by substantial law enforcement interests; and (3) the intrusion is limited in scope, purpose and duration. Therefore, in applying the foregoing criteria to the facts of this case, we find that the court had sufficient evidence from which to determine that the Madison Fire District was investigating numerous explosions from homemade pipe bombs in the Madison area; that the authorities had received information from students and teachers that the appellant had been discussing the construction of homemade pipe bombs in school; that the authorities were in possession of a palm print taken from an unexploded pipe bomb; that fragments of other bombs that had been detonated may yield additional fingerprints; and that due to the possibility of pipe bomb explosions in the future, the safety of the public necessitated the limited intrusion to obtain appellant’s fingerprints. Based upon the foregoing facts, there was sufficient evidence before the juvenile court judge to find an articulable and specific basis in fact for suspecting that the juvenile was involved in criminal activity; further, the fingerprinting of the juvenile was justified by substantial law enforcement interests in order to protect the public safety; and last, the intrusion was limited to the taking of the juvenile to the police station for the sole purpose of fingerprinting. Hence, the court was correct in issuing an order compelling the appellant to accompany the officer to the police station for the limited purpose of fingerprinting. Accordingly, the judgment of the court of appeals is affirmed. Judgment affirmed. [128] Moyer, C.J., Holmes, Wright and H. Brown, JJ., concur. Sweeney and Douglas, JJ., separately dissent.