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MAKING IT COUNT: Fingerprinting at Time of Arrest
By Jennifer Kirkpatrick, Nebraska Crime Commission

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Collection of fingerprints as a biometric identifier continues to grow momentum as technology allows. This unique identifier, fingerprints, is used more and more in the criminal justice system, employment, security, etc. In the criminal justice field, fingerprints are a court accepted science for confirming identity of an individual and continues to help solve major crime and identity theft cases.

The process starts at time of arrest
The Nebraska State Patrol (NSP) is identified as the state repository of all fingerprints collected in Nebraska as part of a criminal arrest (§29-209). The process of fingerprint collection starts at time of arrest.
• Fingerprints that are captured by an arresting agency are forwarded to NSP for processing.
• The fingerprints received are analyzed and entered into the statewide Automated Fingerprint Identification System (AFIS) by NSP.
• The fingerprints are forwarded onto the Federal Bureau of Investigation (FBI) to allow national awareness of an individual’s criminal history and the arrest is applied to the Patrol

Criminal History (PCH) system for statewide awareness.
It is important to note without fingerprints, an arrest will not be applied to the state criminal history (PCH) and national criminal history. If fingerprints are not submitted, it is as if the arrest did not happen and it will not appear on the individual’s criminal history at the state or national level.

Also, outlined in §29-209 are the crimes that should be fingerprinted for, which are any (1) felony or (2) felony fugitives from the criminal justice system of another jurisdiction.
The concentration on fingerprinting felony offenses allows for those critical crimes to be fingerprinted and applied to the state and national criminal history. The FBI in the late 90’s changed their approach to building criminal histories and shared they would take any criminal arrest accompanied by fingerprints and apply it to the national system. Some states have reviewed this change and taken different approaches to fingerprinting by changing policies, statutes, etc…

Are felonies the only serious crimes Law Enforcement needs to know about?
This then leads us to a question, are felonies the only serious crimes committed that law enforcement wishes to know about? The answer is, “NO”, law enforcement wishes and needs to know more, especially when it comes to (crimes that are) firearm prohibitors.

As one example, according to the Gun Control Act of 1968: Title 18, U.S.C., Section 922(g)(9), persons convicted in any court of a misdemeanor crime of domestic violence are not eligible to purchase a firearm. In addition, Section 922(g)(1), persons who have been convicted in any court of a crime punishable by imprisonment for a term exceeding one year would also apply. This allows consideration of fingerprinting for serious misdemeanors to allow for the crime to appear on an individual’s criminal history and keep firearms out of the hands of those that are prohibited. Again if the individual is not fingerprinted, the crime will not be present in the statewide and national criminal history system.

The importance of arrest information
When looking at a criminal history, it is important to have both the arrest and court disposition information. We have been able to examine the importance of arrest information on criminal histories and now must connect the dots on how court disposition information is connected to arrest information on a criminal history. As stated before, an arrest cannot be applied to an individual’s criminal history without the submission of fingerprints.

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Document Control Number (DCN)
Fingerprints are not the only item that is unique on the fingerprint card. Each fingerprint card is assigned a unique Document Control Number (DCN) and the DCN is captured in the statewide AFIS system and PCH. This unique number waits within PCH until it is able to be matched up with the same DCN that is entered into JUSTICE, the electronic system utilized by Nebraska State Courts.

As per §29-3516, all dispositions shall be reported as promptly as feasible by the courts to the NSP but not later than fifteen days after the happening of an event which constitutes a disposition. This illustrates again the importance of fingerprinting at the time of arrest because the court disposition cannot be applied to the state and national criminal history system without that information.

A concerted effort has been to build the critical criminal history information for use by the criminal justice system. However, they are not the only ones that utilize this information. Criminal histories are being sought more and more as part of employment and licensing processes. In 2011, NSP processed 23,541 fingerprint backgrounds checks as required by numerous Nebraska statutes.

There is specific guidance provided that outlines what information can be released (Ex. §29-3523) and to whom. This information released needs to be up to date and complete to allow the employer or licensing agency to make the best decision for their process. It boils down to - are those that are becoming foster parents, driving school buses, carrying concealed weapons, watching your child or grandchildren - the safest and best people to do so. With incomplete criminal history information, there is a huge gap in the system. Less than complete information allows those that should not have the ability to do certain jobs or have certain licenses to slip through the cracks.

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Looking specifically at Nebraska
Stepping back and looking specifically at Nebraska in 2011, the Nebraska Commission on Law Enforcement and Criminal Justice reported 83,428 offenses as part of the Nebraska Incident-Based Reporting System (NIBRS) and Uniform Crime Report (UCR). In 2009, 66 law enforcement agencies submitted their information in the NIBRS format, which resulted in the above statistic. The crime categories included in that number represent felonies and serious misdemeanors. Comparatively, the number of the criminal arrest fingerprint cards processed by the NSP AFIS Division in 2011 was 47,266. A question that is not an easy one to answer is, how many crimes are not fingerprinted that should be? Would it have made a difference if they were fingerprinted for that crime? Every criminal justice agency has examples that answer those questions. There is an easy solution. Fingerprinting at the time of arrest will make your efforts count and ensure that information will be documented on the individual’s criminal history.

Supporting N.R.S.
§29-209. Criminal identification; fingerprints and descriptions; duties of law enforcement officers and agencies.
It is hereby made the duty of the Sheriffs of the several counties of the State of Nebraska, the chiefs of police of incorporated cities therein, marshals of incorporated cities and towns therein, and agencies of state government having powers of arrest to furnish the Nebraska State Patrol two copies of fingerprints on forms provided by the Nebraska State Patrol and the Federal Bureau of Investigation, and descriptions of all persons who are arrested by them (1) for any felony or (2) as felony fugitives from the criminal justice system of another jurisdiction. This section is not intended to include violators of city ordinances or of persons arrested for other trifling offenses. The Nebraska State Patrol shall in all appropriate cases forward one copy of such fingerprints and other necessary identifying data and information to the system maintained by the Federal Bureau of Investigation.

29-3516. Criminal justice agency; disposition of cases; report; procedure; commission; forms; rules and regulations; adopt.
Each criminal justice agency in this state shall report the disposition of cases which enter its area in the administration of criminal justice. As to cases in which fingerprint records must be reported to the Nebraska State Patrol under section 29-209, such disposition reports shall be made to the patrol. In all other cases when a centralized criminal history record information system is maintained by local units of government, dispositions made within the jurisdiction covered by such system shall be reported to the operator of that system or to the arresting agency in a non centralized criminal history record information system. All dispositions shall be reported as promptly as feasible but not later than fifteen days after the happening of an event which constitutes a disposition. In order to achieve uniformity in reporting procedures, the commission shall prescribe the form to be used in reporting dispositions and may adopt rules and regulations to achieve efficiency and which will promote the ultimate purpose of insuring that each criminal justice information system maintained in this state shall contain complete and accurate criminal history information. All forms and rules and regulations relating to reports of dispositions by courts shall be approved by the Supreme Court of Nebraska.

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29-3523. Criminal history record information; notation of an arrest; dissemination; limitations; removal; expungement.
(1) That part of criminal history record information consisting of a notation of an arrest, described in subsection (2) of this section, shall not be disseminated to persons other than criminal justice agencies after the expiration of the periods described in subsection (2) of this section except when the subject of the record:
(a) Is currently the subject of prosecution or correctional control as the result of a separate arrest;
(b) Is currently an announced candidate for or holder of public office;
(c) Has made a notarized request for the release of such record to a specific person; or
(d) Is kept unidentified, and the record is used for purposes of surveying or summarizing individual or collective law enforcement agency activity or practices, or the dissemination is requested consisting only of release of criminal history record information showing (i) dates of arrests, (ii) reasons for arrests, and (iii) the nature of the dispositions including, but not limited to, reasons for not prosecuting the case or cases.
(2) Except as provided in subsection (1) of this section, the notation of arrest shall be removed from the public record as follows:
(a) In the case of an arrest for which no charges are filed as a result of the determination of the prosecuting attorney, the arrest shall not be part of the public record after one year from the date of arrest;
(b) In the case of an arrest for which charges are not filed as a result of a completed diversion, the arrest shall not be part of the public record after two years from the date of arrest; and
(c) In the case of an arrest for which charges are filed, but dismissed by the court on motion of the prosecuting attorney or as a result of a hearing not the subject of a pending appeal, the arrest shall not be part of the public record after three years from the date of arrest.
(3) Any person arrested due to the error of a law enforcement agency may file a petition with the district court for an order to expunge the criminal history record information related to such error. The petition shall be filed in the district court of the county in which the petitioner was arrested. The county attorney shall be named as the respondent and shall be served with a copy of the petition. The court may grant the petition and issue an order to expunge such information if the petitioner shows by clear and convincing evidence that the arrest was due to error by the arresting law enforcement agency.

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