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Roesch v. Ferber

Decided: December 30, 1957.

GEORGE F. ROESCH, 3RD, PLAINTIFF-RESPONDENT,
v.
MARTIN J. FERBER, SHERIFF OF BERGEN COUNTY, DEFENDANT-APPELLANT



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Defendant appeals from a summary judgment of the Superior Court, Law Division, ordering him to return plaintiff's fingerprints and photographs for the purpose of destruction. See Roesch v. Ferber , 45 N.J. Super. 149 (Law Div. 1957).

Plaintiff, a pre-law college student resident in Middletown, New York, was arrested by a state trooper in Ramsey, Bergen County, New Jersey, for violating the speed laws. He was taken to police headquarters, where bail was fixed at $50. Not having the money he phoned his father in Middletown, who came to Ramsey and posted bail. Plaintiff had in the meantime been committed to the county jail where, over his objections, he was photographed and fingerprinted. He was released after bail had been posted and subsequently appeared in the municipal court, pleaded guilty and was fined $20 and costs.

Plaintiff then brought the present action against the Sheriff of Bergen County, on complaint and order to show cause, for the return of his photographs and fingerprints. Although he obtained a temporary restraint against the dissemination of his identification data to other law enforcement agencies, the move came too late, for they had already been sent to the New Jersey State Police and the Federal Bureau of Identification, apparently in the regular course of law enforcement administration. No answer was filed, the matter being heard and determined on plaintiff's motion for summary judgment. Holding that R.S. 53:1-14 must be read together with R.S. 53:1-13 and R.S. 53:1-15 (the text of these statutes appears below), the trial court concluded that only persons arrested for indictable offenses could be fingerprinted, photographed and measured. Although the Law Division judge acknowledged that such

methods of identification may be used and the data retained in the case of an indictable offense -- and this whether or not an indictment was actually returned or a conviction obtained -- he said, "there is nothing that would permit a person charged with violation of a traffic offense to be fingerprinted and photographed." In his opinion, there was "considerable embarrassment" involved in being fingerprinted and photographed and having this information disseminated, and he concluded that "It certainly was never intended that this should be the lot of a person arrested for a traffic offense."

On appeal the defendant contends that sheriffs and other law enforcement officials charged with the custody of prisoners not only have the right but the duty to fingerprint and photograph all persons committed to their custody, regardless of the seriousness of the charge -- and this not only by virtue of the statute, R.S. 53:1-14, but also under the common law. Whether such identification should be returned or retained rests solely, it is said, in the discretion of the police authorities. If there has been any invasion of plaintiff's claimed right of privacy, that is an inconvenience to which he must necessarily submit. It is part of the price every one pays for being a member of society.

We consider defendant's position sound and well supported by authority, so as to require reversal of the judgment under review.

THE STATUTORY LAW

The statutes considered by the trial judge and discussed in the briefs are:

R.S. 53:1-13.

"The supervisor of the state bureau of identification shall procure and file for record, fingerprints, plates, photographs, pictures, descriptions, measurements and such other information as may be pertinent, of all persons who have been or may hereafter be convicted of an indictable offense within the state, and also of all well known and habitual criminals wheresoever the same may be procured.

The person in charge of any state institution shall furnish any such information to the supervisor of the state bureau of identification upon request of the superintendent of state police."

R.S. 53:1-14.

"The supervisor of the state bureau of identification may procure and file for record, fingerprints, photographs and other identification data of all persons confined in any workhouse, jail, reformatory, penitentiary or other penal institution and shall file for record such other information as he may receive from the law enforcement officers of the state and its subdivisions.

The wardens, jailers or keepers of workhouses, jails, reformatories, penitentiaries or other penal institutions shall furnish the state bureau of identification with fingerprints and photographs of all prisoners who are or may be confined in the respective institutions, and shall also furnish such other information respecting such prisoners as may be requested."

R.S. 53:1-15.

"The sheriffs, chiefs of police, members of the State Police and any other law enforcement agencies and officers, shall immediately upon the arrest of any person for an indictable offense, or of any person believed to be wanted for an indictable offense, or believed to be an habitual criminal, and immediately after the conviction of any person of violations of the provisions of section 2 A:170-8 of the New Jersey Statutes, take the fingerprints of such person according to the fingerprint system of identification established by the Superintendent of State Police and on the forms prescribed, and forward without delay two copies or more of the same, together with photographs and such other descriptions as may be required and with a history of the offense committed, to the State Bureau of Identification.

Such sheriffs, chiefs of police, members of the State Police and any other law enforcement agencies and officers shall also take the fingerprints, descriptions and such other information as may be required, of unknown dead persons and forward same to the State Bureau of Identification."

These sections stem from L. 1930, c. 65, ยงยง 2 and 3. We are particularly concerned with the provisions of R.S. 53:1-14, for we deal here with a person who was not merely charged with violating the Motor Vehicle and Traffic Act but one who was actually committed to the county jail in default of bail, subsequently pleaded guilty, and was fined.

L. 1930, c. 65, now R.S. 53:1-12 et seq. , created a State Bureau of Identification within the Department of State Police and under the supervision and control of the Superintendent of State Police. The stated purpose of the act was "to provide a central identification bureau for the State of New Jersey, thereby coordinating all identification work throughout the State and complying directly with the national program of criminal identification throughout the country." Statement, Senate Bill No. 193 (1930). The obvious aim of this legislation was to insure as comprehensive and effective a system of collecting and coordinating fingerprint and other identification data as possible. The act was not meant to inhibit the discretionary authority of law enforcement officials, resting in common law (discussed below), to obtain such information in the same manner as theretofore. It supplemented rather than supplanted that authority. There is not a single word in the 1930 law to indicate any legislative intention to limit or abolish existing powers or procedures.

A comparison of L. 1930, c. 65 with R.S. 53:1-12 et seq. demonstrates that the Revision of 1937 involved no substantive changes but only a rearrangement of the several sections of the act. The two paragraphs making up R.S. 53:1-14 are respectively taken from the last sentence of section 2 and the third sentence of section 3 of L. 1930, c. 65. Considered in their original setting, it is clear that these sentences were intended to enlarge the means of obtaining identification data. No other provision exists for collecting such data covering "all prisoners who are or may be confined in the respective [penal] institutions" throughout the State. The language of R.S. 53:1-14 is not qualified by any requirement that such persons should have been confined because of an indictable offense.

R.S. 53:1-13 concerns itself with the mandatory collection by the Supervisor of the State Bureau of Identification of the fingerprints, photographs, descriptions and measurements of all persons convicted of an indictable offense within the State, and also of habitual criminals. R.S. 53:1-15 is

addressed to sheriffs, police chiefs and other law enforcement officers and agencies, and requires that they supply such identification data in the case of all persons arrested for an indictable offense, or believed to be wanted for an indictable offense or to be an habitual criminal. By contrast with these two sections, R.S. 53:1-14 deals with an entirely different category, namely, all persons confined in any workhouse, jail, reformatory, penitentiary or other penal institution. It provides not only that the Supervisor of the State Bureau of Identification may call for the identification data, but also that the keepers of such institutions must furnish them in any case. This section provides an additional source for obtaining fingerprints and photographs, thus insuring as complete an identification system as possible within the State for law enforcement purposes.

The omission from R.S. 53:1-14 of the phrase "indictable offense" appearing in other provisions of the act must be construed as having been deliberate, and full effect must be given to that omission. State v. Gray , 37 N.J.L. 368 (Sup. Ct. 1875). We are not at liberty to supply language which the Legislature did not use, particularly when we recall the stated purpose and setting of the original 1930 act, which was to establish a comprehensive identification system for New Jersey.

In McGovern v. Van Riper , 137 N.J. Eq. 24, 31-32 (Ch. 1945), affirmed 137 N.J. Eq. 548 (E. & A. 1946), the trial court listed seven distinct classes of persons covered by the act. Included in the group, in addition to persons wanted, arrested or convicted for an indictable offense, are persons confined in workhouses, jails, reformatories, penitentiaries and other penal institutions. The broad scope of the statute is illustrated by the court's comment that one confined in jail on a charge of disorderly conduct would have his fingerprints and photograph taken and "distributed to the four corners of the globe." (As in the case of motor vehicle ...


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