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U.S. Supreme Court
PENNSYLVANIA v. MUNIZ, 496 U.S. 582 (1990)

Footnotes:

  1. The "horizontal gaze nystagmus" test measures the extent to which a person's eyes jerk as they follow an object moving from one side of the person's field of vision to the other. The test is premised on the understanding that, whereas everyone's eyes exhibit some jerking while turning to the side, when the subject is intoxicated "the onset of the jerking occurs after fewer degrees of turning, and the jerking at more extreme angles becomes more distinct." 1 R. Erwin et al., Defense of Drunk Driving Cases 8A.99, pp.8A-43, 8A-45 (1989). The "walk and turn" test requires the subject to walk heel-to-toe along a straight line for nine paces, pivot, and then walk back heel-to-toe along the line for another nine paces. The subject is required to count each pace aloud from one to nine. The "one leg stand" test requires the subject to stand on one leg with the other leg extended in the air for 30 seconds, while counting aloud from one to thirty. Muniz performed these tests poorly, and he informed the officer that he had failed the tests because he had been drinking. The patrol officer arrested Muniz and transported him to the West Shore facility of the Cumberland County Central Booking Center. Following its routine practice for receiving persons suspected of driving while intoxicated, the Booking Center videotaped the ensuing proceedings. Muniz was informed that his actions and voice were being recorded, but he was not at this time (nor had he been previously) advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Officer Hosterman first asked Muniz his name, address, height, weight, eye color, date of birth, and current age. He responded to each of these questions, stumbling over his address and age. The officer then asked Muniz, "Do you know what the date was of your sixth birthday?" After Muniz offered an inaudible reply, the officer repeated, "When you turned six years old, do you remember what the date was?" Muniz responded, "No, I don't." Officer Hosterman next requested Muniz to perform each of the three sobriety tests that Muniz had been asked to perform earlier during the initial roadside stop. The videotape reveals that his eyes jerked noticeably during the gaze test, that he did not walk a very straight line, and that he could not balance himself on one leg for more than several seconds. During the latter two tests, he did not complete the requested verbal counts from one to nine and from one to thirty. Moreover, while performing these tests, Muniz "attempted to explain his difficulties in performing the various tasks, and often requested further clarification of the tasks he was to perform." 377 Pa. Super. 382, 390, 547 A. 2d 419, 423 (1988). Finally, Officer Deyo asked Muniz to submit to a breathalyzer test designed to measure the alcohol content of his expelled breath. Officer Deyo read to Muniz the Commonwealth's Implied Consent Law, 75 Pa. Cons. Stat.
  2. There was a 14-minute delay between the completion of the physical sobriety tests and the beginning of the breathalyzer test. During this period, Muniz briefly engaged in conversation with Officer Hosterman. This 14-minute segment of the videotape was not shown at trial. App.29. Along with the arresting officer's testimony that Muniz failed the roadside sobriety tests and made incriminating remarks at that time. Muniz was convicted of driving under the influence of alcohol in violation of 75 Pa. Cons. Stat. 3731(a)(1) (1987). Muniz filed a motion for a new trial, contending that the court should have excluded the testimony relating to the field sobriety tests and the videotape taken at the Booking Center "because they were incriminating and completed prior to [Muniz's] receiving his Miranda warnings." App. to Pet. for Cert. C5-C6. The trial court denied the motion, holding that requesting a driver, suspected of driving under the influence of alcohol, to perform physical tests or take a breath analysis does not violate [his] privilege against self-incrimination because [the] evidence procured is of a physical nature rather than testimonial, and therefore no Miranda warnings are required.
  3. The court did not suppress Muniz's verbal admissions to the arresting officer during the roadside tests, ruling that Muniz was not taken into custody for purposes of Miranda until he was arrested after the roadside tests were completed. See Pennsylvania v. Bruder, 488 U.S. 9 (1988).
  4. 4 The Superior Court's opinion refers to Art. 1, 9 of the Pennsylvania Constitution but explains that this provision offers a protection against self-incrimination identical to that provided by the Fifth Amendment.377 Pa. Super. 382, 386, 547 A. 2d 419, 421 (1988) (quoting Commonwealth v. Conway, 368 Pa. Super. 488, 498, 534 A. 2d 541, 546 (1987)). The decision therefore does not rest on an independent and adequate state ground. See Michigan v. Long, 463 U.S. 1032 (1983). After the Pennsylvania Supreme Court denied the Commonwealth's application for review, 522 Pa. 575, 559 A. 2d 36 (1989), we granted certiorari. 493 U.S. (1989). IIƒ The Self-Incrimination Clause of the Fifth Amendment.
  5. In Malloy v. Hogan, 378 U.S. 1 (1964), we held the privilege against self-incrimination applicable to the States through the Fourteenth Amendment. Provides that no "person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const., Amdt. 5. Although the text does not delineate the ways in which a person might be made a "witness against himself," cf. Schmerber v. California, 384 U.S. 757, 761-762, n.6 (1966), we have long held that the privilege does not protect a suspect from being compelled by the State to produce "real or physical evidence." Id., at 764. Rather, the privilege "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." Id., at 761. "[I]n order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a `witness' against himself." Doe v. United States, 487 U.S. 201, 210 (1988). In Miranda v. Arizona, 384 U.S. 436 (1966), we reaffirmed our previous understanding that the privilege against self-incrimination protects individuals not only from legal compulsion to testify in a criminal courtroom but also from "informal compulsion exerted by law-enforcement officers during in-custody questioning." Id., at 461. Of course, voluntary statements offered to police officers "remain a proper element in law enforcement." Id., at 478. But "without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Id., at 467. Accordingly, we held that protection of the privilege against self-incrimination during pretrial questioning requires application of special "procedural safeguards." Id., at 444. "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Ibid. Unless a suspect "voluntarily, knowingly and intelligently" waives these rights, ibid., any incriminating responses to questioning may not be introduced into evidence in the prosecution's case in chief in a subsequent criminal proceeding. This case implicates both the "testimonial" and "compulsion" components of the privilege against self-incrimination in the context of pretrial questioning. Because Muniz was not advised of his Miranda rights until after the videotaped proceedings at the Booking Center were completed, any verbal statements that were both testimonial in nature and elicited during custodial interrogation should have been suppressed. We focus first on Muniz's responses to the initial informational questions, then on his questions and utterances while performing the physical dexterity and balancing tests, and finally on his questions and utterances surrounding the breathalyzer test. IIIƒ In the initial phase of the recorded proceedings, Officer Hosterman asked Muniz his name, address, height, weight, eye color, date of birth, current age, and the date of his sixth birthday. Both the delivery and content of Muniz's answers were incriminating. As the state court found, "Muniz's videotaped responses ... certainly led the finder of fact to infer that his confusion and failure to speak clearly indicated a state of drunkenness that prohibited him from safely operating his vehicle." 377 Pa. Super., at 390, 547 A. 2d, at 423. The Commonwealth argues, however, that admission of Muniz's answers to these questions does not contravene Fifth Amendment principles because Muniz's statement regarding his sixth birthday was not "testimonial" and his answers to the prior questions were not elicited by custodial interrogation. We consider these arguments in turn. ‚Aƒ We agree with the Commonwealth's contention that Muniz's answers are not rendered inadmissible by Miranda merely because the slurred nature of his speech was incriminating. The physical inability to articulate words in a clear manner due to "the lack of muscular coordination of his tongue and mouth," Brief for Petitioner 16, is not itself a testimonial component of Muniz's responses to Officer Hoster man's introductory questions. In Schmerber v. California, supra, we drew a distinction between "testimonial" and "real or physical evidence" for purposes of the privilege against self-incrimination. We noted that in Holt v. United States, 218 U.S. 245, 252-253 (1910), Justice Holmes had written for the Court that "`[t]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.
  6. Under Pennsylvania law, driving under the influence of alcohol consists of driving while intoxicated to a degree "which substantially impairs [suspect's] judgment, or clearness of intellect, or any of the normal faculties essential to the safe operation of an automobile." Commonwealth v. Griscavage, 512 Pa. 540, 545, 517 A. 2d 1256, 1258 (1986).
  7. See, e.g., Doe v. United States, 487 U.S. 201, 211, n.10 (1988) ("[T]he Schmerber line of cases does not draw a distinction between unprotected evidence sought for its physical characteristics and protected evidence sought for its [other] content. Rather, the Court distinguished between the suspect's being compelled himself to serve as evidence and the suspect's being compelled to disclose or communicate information or facts that might serve as or lead to incriminating evidence") (emphasis added); cf. Baltimore Dept. of Social Serv. v. Bouknight, 493 U.S. (1990) (individual compelled to produce document or other tangible item to State "may not claim the [Fifth] Amendment's protections based upon the incrimination that may result from the contents or nature of the thing demanded" but may "clai[m] the benefits of the privilege because the act of production would amount to testimony"). We recently explained in Doe v. United States, 487 U.S. 201 (1988), that "in order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information." Id., at 210. We reached this conclusion after addressing our reasoning in Schmerber, supra, and its progeny: "The Court accordingly held that the privilege was not implicated in [the line of cases beginning with Schmer ber] because the suspect was not required `to disclose any knowledge he might have,' or `to speak his guilt.' Wade, 388 U.S., at 222-223. See Dionisio, 410 U.S., at 7; Gilbert, 388 U.S., at 266-267. It is the `extortion of information from the accused,' Couch v. United States, 409 U.S., at 328, the attempt to force him `to disclose the contents of his own mind,' Curcio v. United States, 354 U.S. 118, 128 (1957), that implicates the Self-Incrimination Clause. ... `Unless some attempt is made to secure a communication_written, oral or otherwise_upon which reliance is to be placed as involving [the accused's] consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one.
  8. Wigmore 8 See Doe, supra, at 212-213 (quoting Murphy v. Waterfront Common of New York Harbor, 378 U.S. 52, 55 (1964) (internal citations omitted)): "[T]he privilege is founded on our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state-individual balance by requiring the government ... in its contest with the individual to shoulder the entire load," ...; our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life," ...; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes "a shelter to the guilty," is often "a protection to the innocent. We concluded that "[t]hese policies are served when the privilege is asserted to spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government.
  9. This definition applies to both verbal and nonverbal conduct; nonverbal conduct contains a testimonial component whenever the conduct reflects the actor's communication of his thoughts to another. See Doe, supra, at 209-210, and n.8; Schmerber v. California, 384 U.S. 757, 761, n.5 (1966) ("A nod or head-shake is as much a `testimonial' or `communicative' act in this sense as are spoken words"); see also Braswell v. United States, 487 U.S. 99, 122 (1988) (Kennedy, J., dissenting) ("Those assertions [contained within the act of producing subpoenaed documents] can convey information about that individual's knowledge and state of mind as effectively as spoken statements, and the Fifth Amendment protects individuals from having such assertions compelled by their own acts"). Id., at 213. This definition of testimonial evidence reflects an awareness of the historical abuses against which the privilege against self-incrimination was aimed. "Historically, the privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him. Such was the process of the ecclesiastical courts and the Star Chamber_the inquisitorial method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source. The major thrust of the policies undergirding the privilege is to prevent such compulsion." Id., at 212 (citations omitted); see also Andresen v. Maryland, 427 U.S. 463, 470-471 (1976). At its core, the privilege reflects our fierce "unwillingness to subject those suspected of crime to the cruel trilemma of self- accusation, perjury or contempt,Doe, supra, at 212 (citation omitted), that defined the operation of the Star Chamber, wherein suspects were forced to choose between revealing incriminating private thoughts and forsaking their oath by committing perjury. See United States v. Nobles, 422 U.S. 225, 233 (1975) ("The Fifth Amendment privilege against compulsory self-incrimination ... protects `a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation