Wisconsin Statute 165.84 (1) states in part, "all persons in charge of law enforcement agencies shall obtain, or cause to be obtained, the fingerprints . . . of each person arrested or taken into custody for an offense of a type designated in s. 165.83 (2) (a), of all persons arrested or taken into custody as fugitives from justice, and fingerprints . . . of all unidentified human corpses in their jurisdictions . . . Fingerprints and other identifying data of persons arrested or taken into custody for offenses other than those designated in s. 165.83 (2) (a) may be taken at the discretion of the law enforcement agency concerned." (The entire Statute is reprinted in Section 1.)
There is no dispute over the authority of law enforcement to require positive identification from an offender in its lawful custody. United States v. Smith, 393 F. 2d 687 (6th Cir.), cert. denied, 393 U.S. 885 (1968); Pearson v. United States, 389 F. 2d 684 (5th Cir. 1968); United States v. Kelly, 55 F. 2d 67 (2d Cir. 1932). His entry into the criminal justice system, as the U.S. Supreme Court has observed, carries with it an obligation by the arresting law enforcement agency to know exactly who it is it holds and must produce at subsequent proceedings. United States v. Krapf, 285 F. 2d 647 (2d Cir. 1961); United States v. Kelly, 55 F. 2d 67 (2d Cir. 1932); United States v. Laub Baking Co., 283 F. Supp. 217 (D. Ohio 1968). Submission to fingerprinting in such circumstances may be compelled of the offender should he refuse or resist compliance. The Supreme Court has noted in such a case the accuracy of fingerprinting as a positive means of identification is not impaired by an offender's unwillingness to cooperate. Schmerber v. California, 384 U.S. 757, 764 (1966).[1]
The Fourth Amendment protects against what the courts refer to as wholesale intrusions upon the personal security of citizens. The Forth Amendment is not violated, however, by a law enforcement officer taking fingerprints from one who is under arrest and in custody. United States v. Iacullo (1955 CA 7 I11.), 226 F. 2d 788, cert den 350 U.S. 966, 100 L. Ed 2d 839, 76 S. Ct. 435; Kennedy v. United States (1965 USCA DC), 122 App. D.C. 291, 353 F. 2d 462. The United States Supreme Court has held that fingerprinting and other identification procedures do not violate the Fourth Amendment as long as the subject is validly arrested or properly charged with crime. United States v. Wade (1967) 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926.
Wisconsin Statute 165.84, "Cooperation in criminal identification records and statistics" is covered in the Introduction of this Manual.
Wisconsin Statute 970.02, “Duty of a Judge at the Initial Appearance” states:
(7) If the offense charged is one specified under s. 165.83 (2) (a), the judge shall determine if the defendant’s fingerprints, photographs and other identifying data have been taken and, if not, the judge shall direct that this information be obtained.