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01/08/76 ALDERMAN v. SHIAWASSEE COUNTY SHERIFF

January 8, 1976

ALDERMAN
v.
SHIAWASSEE COUNTY SHERIFF



Appeal from Shiawassee, Peter J. Marutiak, J.

Allen, P. J., and Bronson and R. M. Maher, JJ.

SYLLABUS BY THE COURT

1. -- Arrest Records -- Failure to Charge -- Acquittal of Charge -- Statutes -- Return of Records -- Writ of Mandamus.

A sheriff is required to fingerprint any person arrested for a felony or a misdemeanor punishable by imprisonment for more than three months or a fine of over $100, but where the arrested person is released without charge, the prints and records must be immediately returned without request or the accused shall have the absolute right to demand and receive such return without need to petition for court action; when the person arrested is charged and subsequently found not guilty of the offense, the trial court is required to order the return of his prints and arrest records or the accused shall have the absolute right to such return, upon request, at any time after such acquittal, if necessary, by writ of mandamus (MCLA 28.243; MSA 4.463).

2. -- Statutes -- Arrest Records -- Return of Records -- Court Orders -- Request for Return.

A court order for the return of the fingerprint and arrest cards of an individual who was subsequently not charged with the crime or acquitted of the charge is not required by a statute on the subject unless the individual has first made a request for their return and the return has been refused by the law enforcement official holding the records (MCLA 28.243; MSA 4.463).

3. Constitutional Law -- Right to Privacy -- Arrest Records -- Return of Records -- Subsequent Conviction.

The right to privacy creates significant restrictions on the retention of arrest records, but an individual, after conviction, has no claim based upon privacy to the return of arrest records.

The opinion of the court was delivered by: Per Curiam

Complaint by Douglas Alderman, Gary Bartlett, Richard L. Buchele, Jerry Carpenter and Thomas W. Fultz against the Shiawassee County Sheriff seeking the return of arrest and identification records. Judgment for defendant. Plaintiffs appeal.

Plaintiffs, claiming to represent a class of similarly situated individuals, brought suit against defendant seeking the return of arrest records and identification materials. The Shiawassee Circuit Court dismissed the action, and plaintiffs appeal.

Plaintiffs alleged that each of them had, at one time or another, been incarcerated in the Shiawassee County jail on either felony or misdemeanor charges, but that none had been convicted of a felony. Their cases were resolved in various ways: by dismissal, transfer to juvenile court, and/or pleas of guilty to a reduced charge of a simple misdemeanor. Plaintiffs further alleged that none had a prior conviction, other than for misdemeanor traffic offenses, nor had any been arrested on a sex-related charge. The complaint goes on to allege that records and identification materials made incident to their arrests have been sent to the Michigan Bureau of Criminal Investigation (MBCI) and to the FBI. Defendant sheriff has not returned these materials to plaintiffs and has not sought return of the materials from the MBCI or the FBI.

Defendant admitted all of the foregoing allegations, but denied plaintiffs' right to bring a class action and the legal Conclusions that plaintiffs drew.

The trial court, ruling that plaintiffs did not set forth a claim meriting relief, did not reach the question of the appropriateness of the class alleged. The lack of a record below precludes our review of this issue. Potter v Wayne County, 46 Mich App 174; 207 NW2d 448 (1973). The issue has not been argued by plaintiffs in their appeal, and we ...


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