VIRGLE v. Superior Court

Opinion

RYLAARSDAM,

A defendant who is detained pursuant to a lawful arrest may be ordered to provide a fingerprint exemplar. There is no requirement for a separate probable cause determination before such an order may be made.

The magistrate compelled petitioner Anttiony Glenn Virgle to provide a fingerprint exemplar during his preliminary hearing. Identity was a key issue and, without the exemplar, the prosecution was unable to lay an adequate foundation to show that the Anthony Glenn Virgle, whose prints were displayed on a “known print card” and whose prints matched the latent print

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left at the scene of the crime, was the same person as the Anthony Glenn Virgle who was present in court.

Petitioner moved to set aside the information pursuant to Penal Code section 995 contending the magistrate erred in ordering him to provide a fingerprint exemplar. The superior court denied the motion. Petitioner now seeks a writ of mandate to compel the court to grant his motion. He contends the magistrate violated his rights under the Fourth Amendment of the United States Constitution by failing to make a probable cause determination before ordering him to provide the print exemplar. Because the fingerprints were obtained illegally, he argues, they should not have been used as evidence during the preliminary hearing, and, in the absence of such evidence, there was no probable cause to bind him over for trial.

We issued a stay of the trial and an order to show cause why the petition should not be granted. The district attorney argues the magistrate was not required to first make a probable cause determination before ordering petitioner to provide a fingerprint exemplar. We agree, based on the record supplied, and deny the petition.

A person may not be involuntarily detained for the purpose of obtaining a fingerprint exemplar unless a judicial officer authorized the detention or it is supported by probable cause to arrest.

(Davis v. Mississippi

(1969) 394 U.S. 721, 727-728 [89 S.Ct. 1394, 1397-1398, 22 L.Ed.2d 676].) In