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UNITED STATES v. DOOLEY

September 28, 1973

UNITED STATES of America
v.
Harry A. DOOLEY


Newcomer, District Judge.


The opinion of the court was delivered by: NEWCOMER

NEWCOMER, District Judge.

 The petitioner, Harry A. Dooley, was indicted by a Federal Grand Jury in the above captioned case on December 2, 1971, and charged with conspiracy to violate Title 18, United States Code, Section 1954. Petitioner was also indicted by the same Federal Grand Jury on December 2, 1971, in Criminal No. 71-685 and charged with the same crimes.

 On or about December 10, 1971, petitioner voluntarily appeared in the office of the United States Marshal to sign his own bond in the amount of One Thousand ($1,000) Dollars, in connection with both of the aforementioned indictments. As a result of petitioner's voluntary appearance in the office of the United States Marshal he was photographed and fingerprinted by agents, servants, and/or representatives of said office.

 On October 24, 1972, petitioner was brought to trial before this Court in the above captioned case, and on October 27, 1972, the jury returned a verdict of "Not Guilty" on all counts of the indictment. As a result of petitioner's acquittal in the above captioned case, the United States Attorney's Office filed a motion to dismiss the indictment in Criminal No. 71-685, which motion was granted by the Honorable Edward R. Becker on November 1, 1972.

 Petitioner, Harry A. Dooley, now moves this Court to expunge the fingerprints, photographs (including the negatives and all copies, prints and reproductions of said photographs) and record of his arrest (hereinafter "arrest records") in connection with the above captioned case on the grounds that the continued maintenance and use of the petitioner's arrest records, including fingerprints and photographs (1) has caused him irreparable harm, and (2) constitutes an invasion of privacy. The petitioner further alleges that the government's interest in retaining the records involved is clearly outweighed by the dangers of unwarranted adverse consequences to the petitioner.

 The government opposes the expungement on the basis that the Court does not have jurisdiction to entertain such a motion at this time because the criminal action has been terminated, or if the Court should conclude that it has jurisdiction, there is no basis for granting the motion because (1) no federal statute authorizes such expungement, (2) petitioner cites no authority to support an expungement in a situation where the arrests themselves were based on probable cause and therefore legal, and (3) the retention of arrest, fingerprint and photographic records in and of themselves does not constitute an invasion of privacy.

 Unresolved arrest records generally may well have significance for law enforcement purposes. They provide legitimate leads and questionable background information and may properly assist in resolving criminal actions. But charges resulting in acquittal clearly have no legitimate significance. Likewise, other charges which the government fails or refuses to press or which it withdraws are entitled to no greater legitimacy. They lose any tendency to show probable cause and should not be boot-strapped into any unearned and undeserved significance. Actually, a collection of dismissed, abandoned or withdrawn arrest records are no more than gutter rumors when measured against any standards of constitutional fairness to an individual and, along with records resulting in an acquittal are not entitled to any legitimate law enforcement credibility whatsoever.

 Petitioner has not contended that these records have in fact been used outside the criminal law enforcement agencies authorized to maintain or receive such information although it is common knowledge that this information does from time to time find its way into the hands of unauthorized parties. Petitioner contends that the mere existence of his arrest records, in and of themselves, is an invasion of his right of privacy because of the great potential for harm these records now have should they leave the hands of the law enforcement agencies authorized to collect them. This Court is aware of the problems created by arrest records generally, *fn2" and we are especially concerned with the invasion of privacy of the individual where the information of arrest falls into the wrong hands.

 
Information denominated a record of arrest if it becomes known, may subject the individual to serious difficulties. Even if no direct economic loss is involved, the injury to an individual's reputation may be substantial [footnote omitted]. Economic losses themselves may be both direct and serious. Opportunities for schooling, employment, or professional licenses may be restricted or non-existent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved [footnote omitted]. An arrest record may be used by the police in determining whether subsequently to arrest the individual concerned [footnote omitted] or whether to exercise their discretion to bring formal charges against an individual already arrested [footnote omitted] . . . Adverse action taken against an individual because of his arrest record is premised upon certain assumptions regarding the meaning of an arrest [footnote omitted]. Insofar as these assumptions differ from reality, the adverse actions will have an erroneous basis [footnote omitted]. Kowall v. United States, 53 F.R.D. 211, 214 (W.D.Mich.1971).

 We must also make note of the fact that these records cause injury to the reputation of the individual if allowed to fall into the wrong hands because there is usually no distinction of record regarding the subsequent disposition of the case. Also, few employers will take the time to research the disposition of a prior arrest, and it is likely that the individual who is prejudiced will not have the opportunity to explain the disposition thereof.

 The difficulty in this case is that petitioner's arrest and subsequent fingerprinting and photographing were, we must assume, perfectly proper. Petitioner does not contend that the arrests were made without probable cause or for purposes of harassment. Petitioner is correct in his assertion that the Federal Court does have the power to enter an order expunging arrest records of individuals who are arrested without probable cause, or for purposes of harassment, see Hughes v. Rizzo, 282 F. Supp. 881 (E.D.Pa.1968), and in extraordinary circumstances where justice requires, see Kowall v. United States, 53 F.R.D. 211 (W.D.Mich.1971). However, we are unable to find any case which has permitted expungement in the ...


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