Procedure for Subpoena for Production of Fingerprint
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The following procedure shall be employed when a law enforcement officer, as defined in § 39-11-106, seeks to obtain a subpoena for the production of a thumbprint taken and maintained pursuant to § 45-6-209(b)(7) for the purpose of establishing, investigating or gathering evidence for the prosecution of a criminal offense.
If the officer has reason to believe that a criminal offense has been committed or is being committed and that requiring the production of a thumbprint in the possession of a pawnbroker is necessary to establish who committed or is committing the offense or to aid in the investigation and prosecution of the person or persons believed to have committed or believed to be committing the offense, the officer shall prepare an affidavit in accordance with subsection (c).
An affidavit in support of a request to compel the production of a thumbprint from a pawnbroker shall state with particularity the following:
A statement that a specific criminal offense has been committed or is being committed and the nature of the offense;
The articulable reasons why the law enforcement officer believes the production of the thumbprint requested will materially assist in the investigation of the specific offense committed or being committed;
The name and address of the pawnbroker maintaining the thumbprint; and
The nexus between the thumbprint requested and the criminal offense committed or being committed.
Upon preparing the affidavit, the law enforcement officer shall submit it to a magistrate, as defined in §§ 40-5-101 and 40-5-102. The magistrate shall examine the affidavit and may examine the affiants under oath. The magistrate may grant the request for a subpoena to produce the thumbprint requested if the magistrate finds that the affiants have presented a reasonable basis for believing that:
A specific criminal offense has been committed or is being committed;
Production of the requested thumbprint will materially assist law enforcement in the establishment or investigation of such offense;
There exists a clear and logical nexus between the thumbprint requested and the offense committed or being committed; and
The scope of the request is not unreasonably broad or the thumbprint unduly burdensome to produce.
If the magistrate finds that all of the criteria set out in subdivision (d)(1) do not exist as to the thumbprint requested, the magistrate shall deny the request for subpoena.
The affidavit filed in support of any request for the issuance of a subpoena pursuant to this section shall be filed with and maintained by the magistrate's office. If a subpoena is issued as the result of the affidavit, the affidavit shall be kept under seal by the magistrate until a copy is requested by the district attorney general, criminal charges are filed in the case, or the affidavit is ordered released by a court of record for good cause.
A subpoena granted pursuant to this section by a magistrate of a court of record shall issue to any part of the state and shall command the pawnbroker to whom it is directed to produce any thumbprint that is specified in the subpoena to the law enforcement officer and at a reasonable time and place designated in the subpoena. A subpoena granted pursuant to this section by any other magistrate shall in all respects be like a subpoena granted by the magistrate of a court of record but shall issue only within the county in which the magistrate has jurisdiction. The magistrate shall prepare or cause to be prepared the subpoena and it shall describe the specific thumbprint requested and set forth the date and manner it is to be delivered to the officer.
If the subpoena is issued by a magistrate of a court of record, it may be served by the officer in any county of the state by personal service, certified mail, return receipt requested, or by any other means with the consent of the person named in the subpoena. If the subpoena is issued by any other magistrate it shall be served by an officer with jurisdiction in the county of the issuing magistrate but may be served by personal service, certified mail, return receipt requested, or by any other means with the consent of the person named in the subpoena. The officer shall maintain a copy of the subpoena and endorse thereon the date and manner of service as proof thereof.
No pawnbroker shall be excused from complying with a subpoena for the production of a thumbprint maintained by the pawnbroker issued pursuant to this section on the ground that production of the requested thumbprint may tend to incriminate the pawnbroker. Any pawnbroker claiming a privilege against self incrimination must assert the claim before the magistrate issuing the subpoena promptly and before the time designated for compliance therewith. If the district attorney general thereafter certifies to the magistrate that the interests of justice demand the production of the thumbprint for which the claim of privilege is asserted, then the magistrate shall order the production of the thumbprint and the pawnbroker shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning the requested thumbprint the pawnbroker was compelled to produce.
No subpoena for the production of a thumbprint as authorized by this section shall be directed to, or served upon, any defendant, or defendant's counsel, in a criminal action in this state, any person who is suspected of committing a criminal offense or any person who is the subject of a criminal investigation.
If any pawnbroker, without cause, refuses to produce the requested thumbprint within the time and manner designated for compliance by the issuing magistrate, the district attorney general shall seek a writ of attachment from the issuing magistrate to seize the pawnbroker within the state and that pawnbroker may be held in civil contempt and committed to jail therein to remain without bail until willing to comply with the subpoena as the law directs.