An inmate has gang tattoos obtained in "the joint." Photos of the tattoos could be useful at the punishment stage. As he is an inmate, he has a reduced expectation of privacy. But, as the photos will require a partial disrobing and have nothing to do with prison security, is a search warrant required? Alternatively, is undressing him (maintaining decency) at trial a better way to go? Thoughts?

Go for it. We have come across the same situation. No warrant is needed to photograph an inmate in jail. Think about it; he is subject to strip search, so a camera is fine. I then put the digital pics of the tattoos on a big screen TV. Had a gang person from TDC testify as to the defendant's documented affiliation with ABT.

He is now doing two life sentences for aggravated assault.

As a side note, I did give the defense attorney a courtesy call, but he chose not to attend the photo session. His client was less-than-cooperative, but we got the job done.

I follow you. My only concern is the justification for the prosecution's picture-taking. Any penal institution can have at an inmate for security purposes, but do we have the right to search him for purposes of obtaining adverse evidence? Obviously, this search wouldn't be as intrusive as hair or blood collection (and tattoos would not even be testimonial evidence). Is your position that our justification is immaterial given the defendant's reduced expectation of privacy? If so, can prosecutors compel inmates to give blood, hair, and saliva without warrants?

John:

I've got a motion and order that we have our judge sign that authorizes the Sheriff, or his designeee, to take photos of the Defendant's tattoos. If you'll send me an e-mail I can get it to you.

Technically, no warrant or motion is required, but those pesky law enforcement types always like to have a court order to cover them.

Robert DuBoise
Assistant District Attorney
Parker County, Texas
rduboise@sbcglobal.net

Taking blood, hair and saliva is different because those are perceived as more personal and involve actual intrusion. But, taking photographs, like taking fingerprints, after the person is already in custody, does not intrude on any reasonable expectation of privacy.

Okay, I buy the distinction--one I readliy recognize. I suppose I need to accept the distinction is also the rationale for permitting the procedure. Thanks for all the support through this forum, calls, and email.