A Texas cop illegally detained and handcuffed a PINAC correspondent for video recording before secretly scanning his fingerprints on a portable device without his consent while his hands were cuffed behind his back.
Now the Harris County Constable’s Office is refusing to provide PINAC details on this mysterious device that was used to scan David Warden’s fingerprints without his permission.
The incident took place on August 17 as Warden was conducting a First Amendment audit from a public sidewalk outside a chemical plant in Houston.
Somebody from the EcoServices plant called the constable’s office and two deputies responded.
Warden, who was holding a video camera in his hand, began live streaming from his phone, which was hanging around his neck.
He also had a body camera on his hat, which is what recorded the deputy holding the fingerprint scanner after the deputy tried his best to avoid being recorded by the other cameras.
The body cam footage, posted below, shows constable Alberto Soto, assisted by three-week trainee Harold Tippin, repeatedly insisting Warden provide his identification and turn off his camera; threatening he either hand over his ID for an “investigation” or go to jail for failure to identify – claiming it was a “Homeland Security issue.”
However, under [__Texas Penal Code 38.02__](http://codes.findlaw.com/tx/penal-code/penal-sect-38-02.html), a person must be lawfully arrested before being required to identify themselves.
> Sept. 1, 1997. Sec. 38.02. **FAILURE TO IDENTIFY**. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
Warden, familiar with the law, refused to identify himself because he knew he hadn’t lawfully been arrested, much less lawfully detained.
Instead, he handed the cop a Constitutional rights card that says he doesn’t answer questions or consent to searches.
Soto outright ignored the content of the card, proceeding to cuff and detain Warden.
“Can you put the camera down, sir,” Soto tells him.
Warden places his camera on the sidewalk in a manner where it could record the deputy’s cuffing him, but the deputy walked Warden behind the camera to ensure they would not be recorded.
While handcuffing him, Soto forcibly twists Warden’s fingers into the portable fingerprint scanner before he even knew what was really happening.
“You’re twisting my fingers and my wrists and stuff like you’re trying to hurt–” Warden cries out before realizing what had just taken place.
“Ahh! you’re using the finger print scanner,” Warden exclaims. “So you’re going to steal my identification without consent.”
Soto apparently didn’t realize Warden had another camera, affixed to his hat, which captured a glimpse of the portable scanner he was obviously trying to hide from the camera on the ground.
According to the [__United States Department of Justice,__](https://www.justice.gov/usam/criminal-resource-manual-251-fingerprinting-search-and-seizure) Soto violated Warden’s Fourth Amendment rights by fingerprinting him considering there was no lawful basis for the detainment in the first place.
> The Fourth Amendment does not bar the fingerprinting of a properly seized person. “Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.” See Davis v. Mississippi, 394 U.S. 721, 727 (1969). So long as the initial seizure of the person is reasonable, as in a lawful arrest, subsequent fingerprinting is permissible. It is also possible that the requirements of the Fourth Amendment could be met through “narrowly circumscribed procedures for obtaining, during the course of a criminal investigation, the fingerprints of individuals for whom there is no probable cause for arrest.” See Davis v. Mississippi, supra, at 728; see also Hayes v. Florida, 470 U.S. 811 (1985).
But the Fourth Amendment violations continued when Soto placed Warden inside the back of his patrol car while still handcuffed.
Inside the car, Warden complained the cuffs were too tight, so officer Tippin loosened them.
About ten minutes later, Warden is released from the patrol car and told to “have a nice day.”
“The officer had zero tolerance for me at all,” Warden said in a telephone interview.
“He would not engage in a conversation. All he wanted to do is holler about his investigation and ask for ID. There was no investigation. There was never any intent of doing an investigation. They wanted to identify me. That was the sole purpose. It’s obvious in the video.”
Warden said Soto’s First Amendment audit grade was an “utter failure.”
“Clearly, this is not allowed. This is the epitome of a police state,” he said.
Since the incident, Warden has called the constable’s office to ask for its policy on the use of these scanners, but has been stonewalled.
He believes the constable’s office received the scanners from the Harris County Sheriff’s Office, but that agency has also refused to answer the following questions.
So maybe our readers can make the call to the sheriff’s media relations department at 713-755-3647 and ask the following questions.
