Conford, Leonard and Crahay. The opinion of the court was delivered by Conford, P.J.A.D.
We have here for consideration the question of whether or to what extent the Fourth Amendment controls or affects compulsion by a court, at the instance of a law enforcement officer, of citizens to cooperate in yielding their fingerprints to the authorities in order to help solve a crime.
On July 10, 1973 Judge Weidenburner, on the filing of an affidavit by an Elizabeth police detective, and at the request of the Union County Prosecutor, issued an ex parte order directing that the male members of the 1973 8th grade class of the Martin Luther King, Jr. elementary school of Newark submit to fingerprinting at the Essex County Sheriff's office in Newark on any of six specified days beginning July 17, 1973, at any time from 9 A.M. to 12 noon. The order permitted the pupils to be accompanied by a parent, guardian or attorney and directed that the fingerprints should be used only in regard to the investigation of the death on June 24, 1973 of one John (Bliss) Galasso. It further specified that the prints should be destroyed upon the completion of the investigation.
A subsequent motion on behalf of some of the pupils for an order vacating or staying the order of July 10 was heard and denied by Judge Weidenburner. Proceedings in this court for stay and leave to appeal eventuated in an order of this court granting leave to appeal but denying a stay. The Supreme Court on petition thereafter stayed the fingerprint order and directed this court to hear the appeal immediately. Because of the intervening proceedings the trial judge entered another order on July 27, 1973 providing for extended dates for the fingerprinting. Motions before us by the pupils for stay, leave to appeal, etc., in reference to the latter order become academic in light of our determination on the merits of the primary order of July 10.
At the argument of the appeal, in order to provide a fair opportunity for appellants, who are obviously minor youths, to contest the reasonableness of the order, this court directed limited disclosure to counsel for appellants of the contents of the affidavit on which the order issued, and granted them leave to file a supplemental brief as to the reasonableness of the order based thereon. We further directed that such disclosure be held in confidence by counsel. The limitation and direction were based on representations by the State that disclosure to potential suspects in the crime of any of the details of the affidavit would prejudice the ongoing investigation of the homicide involved. (Appellants' brief indicates they are aware this was a homicide). We have now concluded that there is no reasonable need for further confidentiality of the portions of the affidavit disclosed to counsel, a substantial part of which has already been reported by the press, and we therefore recite those facts herewith as basic to an understanding of our determination that the fingerprinting order is a reasonable and valid interference with the privacy of appellants, within the proscriptions of the Fourth Amendment.
The body of the victim of the homicide, who was a resident of Montclair, was found in a vacant lot in Elizabeth on June 24, 1973 at 11:40 A.M. A ring of the 1973 graduating class of the Martin Luther King, Jr. elementary school in Newark was found lying 44 feet from the body. The victim had the exclusive possession and use of a 1972 Chevrolet automobile which was next seen, after discovery of the body, on the morning of June 26, 1973 parked on a Newark street. The Newark police took possession of it on June 27, 1973, and it was thereupon examined by experts for latent fingerprints. A number of such prints were found both inside and outside of the car, none of which was found to match known fingerprints of the decedent.
Appellants, while conceding, on the basis of commentary by the Supreme Court in Davis v. Mississippi, 394 U.S. 721, 727,
89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969), hereafter quoted, that fingerprinting is probably compellable in certain "narrowly defined circumstances" short of a showing of probable cause "in the traditional sense" (Id.), nevertheless argue that (1) it was requisite that the trial court afford them full disclosure of the police affidavit and an opportunity at an adversary hearing, both to challenge the veracity of the affidavit and to offer counter-evidence refuting the reasonableness of the proposal to fingerprint them, and (2) on the basis of the facts disclosed to counsel, recited above, the order was not reasonable. We find both of these contentions to lack merit.
In the Davis case, supra, the Supreme Court reversed a state rape conviction of a 14-year-old boy because his incriminating fingerprints, admitted in evidence, were taken by police in the course of an illegal detention of the boy. While holding that "[d]etentions for the sole purpose of obtaining fingerprints are * * * subject to the constraints of the Fourth Amendment" (394 U.S. at 727, 89 S. Ct. at 1397), the court went on to say (Id.):
These presently significant observations were repeated by the court in the recent case of United States v. Dionisio, 410 U.S. 1, 93 S. Ct. ...