This matter comes before the court by way of a motion by the State to detain W. for a period not to exceed three hours for the purpose of taking his photograph to be used in a photographic lineup. In addition, the State requests authority to take paint samples from and photographs of a 1973 Ford half-ton pickup truck.
In support of its application, the State has submitted an affidavit from a Hillsborough Township police officer which relates the following facts.
On April 5, 1975 a motor vehicle accident occurred involving two cars and one pickup truck. A witness to the accident has told the affiant that a green pickup truck was involved in the accident and that its driver was an approximately 38 to 40-year-old white male, having short black hair with white streaks in it. After conducting an investigation the affiant has found a truck belonging to W. which matches the description of the truck involved in the accident. Furthermore, the affiant has seen the W. truck and it has
sustained recent damage to its right side which, according to witnesses, corresponds to the damage sustained by the truck in the accident. Also, W. matches the description of the driver of the green truck involved in the accident. The paint sample that is requested is to be compared with paint left on a car as a result of the collision, and the photograph of W. is to be used in a photographic lineup for the witness who indicates that he could probably identify the driver of the hit-and-run truck.
In the court's view the requests made here by the State are functionally the equivalent of an application for a search warrant. Procedurally, this motion differs from a search warrant in that the adversary argument as to validity is taking place prior to, rather than after, the contemplated action. Nevertheless, the court feels that the touchstone of the inquiry in regard to the State's requests, must be the Fourth Amendment.
The court believes that it is appropriate to deal with the State's requests as to W.'s person and as to his truck separately because of the differing considerations involved. Attention will first focus upon the request for detention in order to take a photograph.
The court finds that the State's detention request involves one intrusion within the meaning of the Fourth Amendment. The seizure of the person of W. which would be necessary in order to effectuate the three-hour detention in clearly a seizure in the constitutional sense. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973). However, the taking of his photograph is not. A person's facial features are constantly exposed to the public and what a person knowingly exposes to the public is not a subject of Fourth Amendment protection. Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967).
At the outset it should be noted that during oral argument the State conceded that no probable cause in the traditional
sense exists for the search or the arrest of W. The court agrees with the evaluation and so holds.
Instead of relying on traditional probable cause, the State grounds its request on what it terms a developing body of case law subsequent to Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969), in regard to the obtaining of body exemplars. In Davis the Supreme Court reversed a state rape conviction of a 14-year-old boy because his incriminating ...