Pennsylvania v. Muniz
Concurring in Part
with whom Justice White, Justice Blackmun, and Justice Stevens join, concurring in part, concurring in the result in part, and dissenting in part.
I join Parts I, II, III-A, and IV of the Court’s opinion. In addition, although I agree with the conclusion in Part III-C that the seven “booking” questions should not be suppressed, I do so for a reason different from that of Justice Brennan. I dissent from the Court’s conclusion that Muniz’s response to the “sixth birthday question” should have been suppressed.
The Court holds that the sixth birthday question Muniz was asked required a testimonial response, and that its admission at trial therefore violated Muniz’s privilege against compulsory self-incrimination. The Court says:
“When Officer Hosterman asked Muniz if he knew the date of his sixth birthday and Muniz, for whatever reason, could not remember or calculate that date, he was confronted with the trilemma [i. e., the ‘“trilemma” of truth, falsity, or silence,’ see ante, at 597]. . . . Muniz was left with the choice of incriminating himself by admitting that he did not then know the date of his sixth birthday, or answering untruthfully by reporting a date that he did not then believe to be accurate (an incorrect guess would be incriminating as well as untruthful).” Ante, at 598-599.
As an assumption about human behavior, this statement is wrong. Muniz would no more have felt compelled to fabricate a false date than one who cannot read the letters on an eye chart feels compelled to fabricate false letters; nor does a wrong guess call into question a speaker’s veracity. The Court’s statement is also a flawed predicate on which to base its conclusion that Muniz’s answer to this question was “testimonial” for purposes of the Fifth Amendment.
The sixth birthday question here was an effort on the part of the police to check how well Muniz was able to do a simple mathematical exercise. Indeed, had the question related only to the date of his birth, it presumably would have come under the “booking exception” to Miranda v. Arizona, 384 U. S. 436 (1966), to which the Court refers elsewhere in its opinion. The Court holds in this very case that Muniz may be required to perform a “horizontal gaze nystagmus” test, the “walk and turn” test, and the “one leg stand” test, all of which are designed to test a suspect’s physical coordination. If the police may require Muniz to use his body in order to demonstrate the level of his physical coordination, there is no reason why they should not be able to require him to speak or write in order to determine his mental coordination. That was all that was sought here. Since it was permissible for the police to extract and examine a sample of Schmerber’s blood to determine how much that part of his system had been affected by alcohol, I see no reason why they may not examine the functioning of Muniz’s mental processes for the same purpose.
For substantially the same reasons, Muniz’s responses to the videotaped “booking” questions were not testimonial and do not warrant application of the privilege. Thus, it is unnecessary to determine whether the questions fall within the “routine booking question” exception to Miranda Justice Brennan recognizes.
I would reverse in its entirety the judgment of the Superior Court of Pennsylvania. But given the fact that five members of the Court agree that Muniz’s response to the sixth birthday question should have been suppressed, I agree that the judgment of the Superior Court should be vacated so that, on remand, the court may consider whether admission of the response at trial was harmless error.
Concurring in Part
concurring in part and dissenting in part.
I concur in Part III-B of the Court’s opinion that the “sixth birthday question” required a testimonial response from respondent Muniz. For the reasons discussed below, see n. 1, infra, that question constituted custodial interrogation. Because the police did not apprise Muniz of his rights under Miranda v. Arizona, 384 U. S. 436 (1966), before asking the question, his response should have been suppressed.
I disagree, however, with Justice Brennan’s recognition in Part III-C of a “routine booking question” exception to Miranda. Moreover, even were such an exception war
I dissent from the Court’s holding in Part IV that Muniz’s testimonial statements in connection with the three sobriety tests and the breathalyzer test were not the products of custodial interrogation. The police should have known that the circumstances in which they confronted Muniz, combined with the detailed instructions and questions concerning the tests and the Commonwealth’s Implied Consent Law, were reasonably likely to elicit an incriminating response, and therefore constituted the “functional equivalent” of express questioning. Rhode Island v. Innis, 446 U. S. 291, 301 (1980). Muniz’s statements to the police in connection with these tests thus should have been suppressed because he was not first given the Miranda warnings.
Finally, the officer’s directions to Muniz to count aloud during two of the sobriety tests sought testimonial responses, and Muniz’s responses were incriminating. Because Muniz was not informed of his Miranda rights prior to the tests, those responses also should have been suppressed.
I
A
Justice Brennan would create yet another exception to Miranda: the “routine booking question” exception. See also Illinois v. Perkins, ante, p. 292 (creating exception to Miranda for custodial interrogation by an undercover police officer posing as the suspect’s fellow prison inmate). Such exceptions undermine Miranda’s fundamental principle that the doctrine should be clear so that it can be easily applied by both police and courts. See Miranda, supra, at 441-442;
B
Justice Brennan nonetheless asserts that Miranda does not apply to express questioning designed to secure “‘“biographical data necessary to complete booking or pretrial services,””’ ante, at 601 (citation omitted), so long as the questioning is not “‘designed to elicit incriminatory admissions,’ ” ante, at 602, n. 14 (quoting Brief for United States as Amicus Curiae 13; citing United States v. Avery, 717 F. 2d 1020, 1024-1025 (CA6 1983) (acknowledging that “[e]ven a relatively innocuous series of questions may, in light of the factual circumstances and the susceptibility of a particular suspect, be reasonably likely to elicit an incriminating response”); United States v. Mata-Abundiz, 717 F. 2d 1277, 1280 (CA9 1983) (holding that routine booking question exception does not apply if “the questions are reasonably likely to elicit an incriminating response in a particular situation”); United States v. Glen-Archila, 677 F. 2d 809, 816, n. 18 (CA11 1982) (“Even questions that usually are routine must be proceeded [sic] by Miranda warnings if they are intended to produce answers that are incriminating”)). Even if a routine booking question exception to Miranda were warranted, that exception should not extend to any booking question
Here, the police should have known that the seven booking questions—regarding Muniz’s name, address, height, weight, eye color, date of birth, and age—were reasonably likely to elicit incriminating responses from a suspect whom the police believed to be intoxicated. Cf. id., at 302, n. 8 (“Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect”). Indeed, as the Court acknowledges, Muniz did in fact “stumbl[e] over his address and age,” ante, at 586; more specifically, he was unable to give his address without looking at his license and initially told police the wrong age. Moreover, the very fact that, after a suspect has been arrested for driving under the influence, the Pennsylvania police regularly videotape the subsequent questioning strongly implies a purpose to the interrogation other than “record-keeping.” The seven questions in this case, then, do not fall within the routine booking question exception even under Justice Brennan’s standard.
Although Justice Brennan does not address this issue, the booking questions sought “testimonial” responses for the same reason the sixth birthday question did: because the content of the answers would indicate Muniz’s state of mind. Ante, at 598-599, and n. 12. See also Estelle v. Smith, 451 U. S. 454, 464-465 (1981). The booking questions, like the sixth birthday question, required Muniz to (1) answer correctly, indicating lucidity, (2) answer incorrectly, implying that his mental faculties were impaired, or (3) state that he did not know the answer, also indicating impairment. Muniz’s initial incorrect response to the question about his age and his inability to give his address without looking at his license, like his inability to answer the sixth birthday question, in fact gave rise to the incriminating inference that his mental faculties were impaired. Accordingly, because the police did not inform Muniz of his Miranda rights before asking the booking questions, his responses should have been suppressed.
II
A
The Court finds in Part IV of its opinion that Miranda is inapplicable to Muniz’s statements made in connection with the three sobriety tests and the breathalyzer examination because those statements (which were undoubtedly testimonial) were not the products of “custodial interrogation.” In my view, however, the circumstances of this case—in particular, Muniz’s apparent intoxication—rendered the officers’ words and actions the “functional equivalent” of express questioning
The Court today, however, completely ignores Muniz’s condition and focuses solely on the nature of the officers’ words and actions. As the Court held in Innis, however, the focus in the “functional equivalent” inquiry is on “the perceptions of the suspect,” not on the officers’ conduct viewed in isolation. 446 U. S., at 301. Moreover, the Innis Court emphasized that the officers’ knowledge of any “unusual susceptibility” of a suspect to a particular means of eliciting information is relevant to the question whether they should have known that their conduct was reasonably likely to elicit
B
The Court concedes that Officer Hosterman’s directions that Muniz count aloud to 9 while performing the “walk and turn” test and to 30 while performing the “one leg stand” test constituted custodial interrogation. Ante, at 603, and n. 17. Also indisputable is the testimonial nature of the responses sought by those directions; the content of Muniz’s counting, just like his answers to the sixth birthday and the booking questions, would provide the basis for an inference regarding his state of mind. Cf. ante, at 599; supra, at 612. The Court finds the admission at trial of Muniz’s responses permissible, however, because they were not incriminating “except to the extent [they] exhibited a tendency to slur words,
Second, and more importantly, Muniz’s responses would have been “incriminating” for purposes of Miranda even if he had fully and accurately counted aloud during the two tests. As the Court stated in Innis, “[b]y ‘incriminating response’ we refer to any response—whether inculpatory or exculpatory—that the prosecution may seek to introduce at trial.” 446 U. S., at 301, n. 5. See also Miranda, 384 U. S., at 476-477 (“The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory’ ”). Thus, any response by
III
All of Muniz’s responses during the videotaped session were prompted by questions that sought testimonial answers during the course of custodial interrogation. Because the police did not read Muniz the Miranda warnings before he gave those responses, the responses should have been suppressed. I would therefore affirm the judgment of the state court.
The sixth birthday question also clearly constituted custodial interrogation because it was a form of “express questioning.” Rhode Island v. Innis, 446 U. S. 291, 300-301 (1980). Furthermore, that question would not fall within Justice BRENNAN’s proposed routine booking question exception. The question serves no apparent recordkeeping need, as the po
An additional factor strongly suggests that the police expected Muniz to make incriminating statements. Pursuant to their routine in such cases, App. 28-29, the police allotted 20 minutes for the three sobriety tests and for “observation.” Because Muniz finished the tests in approximately 6 minutes, the police required him to wait another 14 minutes before they asked him to submit to the breathalyzer examination. Given the absence of any apparent technical or administrative reason for the delay and the stated purpose of “observing” Muniz, the delay appears to have been designed in part to give Muniz the opportunity to make incriminating statements.
The Commonwealth could not use Muniz’s failure to count against him' regardless of whether his silence during the walk and turn test was itself testimonial in those circumstances. Cf. ante, at 603, n. 17. A defendant’s silence in response to police questioning is not admissible at trial even if the silence is not, in the particular circumstances, a form of communicative conduct. Miranda v. Arizona, 384 U. S. 436, 468, n. 37 (1966) (“[I]t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation”). Cf. Griffin v. California, 380 U. S. 609, 615 (1965) (“[T]he Fifth Amendment. . . forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt”).
I continue to have serious reservations about the Court’s limitation of the Fifth Amendment privilege to “testimonial” evidence. See United States v. Mara, 410 U. S. 19, 32-38 (1973) (Marshall, J., dissenting). I believe that privilege extends to any evidence that a person is compelled to furnish against himself. Id., at 33-35. At the very least, the privilege includes evidence that can be obtained only through the person’s affirmative cooperation. Id., at 36-37. Of course, a person’s refusal to incriminate himself also cannot be used against him. See n. 3, supra. Muniz’s performance of the sobriety tests and his refusal to take the breathalyzer examination are thus protected by the Fifth Amendment under this interpretation. But cf. ante, at 604-605, n. 19. Because Muniz does not challenge the admission of the video portion of the videotape showing the sobriety tests or of his refusal to take the breathalyzer examination, however, those issues are not before this Court.
Opinion of the Court
delivered the opinion of the Court, except as to Part III-C.
We must decide in this case whether various incriminating utterances of a drunken-driving suspect, made while performing a series of sobriety tests, constitute testimonial responses to custodial interrogation for purposes of the Self-Incrimination Clause of the Fifth Amendment.
During the early morning hours of November 30, 1986, a patrol officer spotted respondent Inocencio Muniz and a passenger parked in a car on the shoulder of a highway. When the officer inquired whether Muniz needed assistance, Muniz replied that he had stopped the car so he could urinate. The officer smelled alcohol on Muniz’s breath and observed that Muniz’s eyes were glazed and bloodshot and his face was flushed. The officer then directed Muniz to remain parked until his condition improved, and Muniz gave assurances that he would do so. But as the officer returned to his vehicle, Muniz drove off. After the officer pursued Muniz down the highway and pulled him over, the officer asked Muniz to perform three standard field sobriety tests: a “horizontal gaze nystagmus” test, a “walk and turn” test, and a “one leg stand” test.
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
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 1 to 9 and from 1 to 30. 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. § 1547 (1987), and explained that under the law his refusal to take the test would result in automatic suspension of his driver’s license for one year. Muniz asked a number of questions about the law, commenting in the process about his state of inebriation. Muniz ultimately refused to take the breath test. At this point, Muniz was for the first time advised of his Miranda rights. Muniz then signed a statement waiving his rights and admitted in response to further questioning that he had been driving while intoxicated.
On appeal, the Superior Court of Pennsylvania reversed. The appellate court agreed that when Muniz was asked “to submit to a field sobriety test, and later perform these tests before the videotape camera, no Miranda warnings were required” because such sobriety tests elicit physical, rather than testimonial, evidence within the meaning of the Fifth Amendment. 377 Pa. Super., at 387, 547 A. 2d, at 422. The court concluded, however, that “when the physical nature of the tests begins to yield testimonial and communicative statements . . . the protections afforded by Miranda are invoked.” Ibid. The court explained that Muniz’s answer to the question regarding his sixth birthday and the statements and inquiries he made while performing the phys
II
The Self-Incrimination Clause of the Fifth Amendment
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 incustody 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.
III
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.
A
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 tes
We have since applied the distinction between “real or physical” and “testimonial” evidence in other contexts where the evidence could be produced only through some volitional act on the part of the suspect. In United States v. Wade, 388 U. S. 218 (1967), we held that a suspect could be compelled to participate in a lineup and to repeat a phrase provided by the police so that witnesses could view him and listen to his voice. We explained that requiring his presence and speech at a lineup reflected “compulsion of the accused to
Under Schmerber and its progeny, we agree with the Commonwealth that any slurring of speech and other evidence of lack of muscular coordination revealed by Muniz’s responses to Officer Hosterman’s direct questions constitute nontestimonial components of those responses. Requiring a suspect to reveal the physical manner in which he articulates words, like requiring him to reveal the physical properties of the sound produced by his voice, see Dionisio, supra, does not, without more, compel him to provide a “testimonial” response for purposes of the privilege.
B
This does not end our inquiry, for Muniz’s answer to the sixth birthday question was incriminating, not just because of his delivery, but also because of his answer’s content; the trier of fact could infer from Muniz’s answer (that he did not know the proper date) that his mental state was confused.
But this characterization addresses the wrong question; that the “fact” to be inferred might be said to concern the physical status of Muniz’s brain merely describes the way in which the inference is incriminating. The correct question for present purposes is whether the incriminating inference of mental confusion is drawn from a testimonial act or from physical evidence. In Schmerber, for example, we held that the police could compel a suspect to provide a blood sample in order to determine the physical makeup of his blood and thereby draw an inference about whether he was intoxicated. This compulsion was outside of the Fifth Amendment’s protection, not simply because the evidence concerned the suspect’s physical body, but rather because the evidence was obtained in a manner that did not entail any testimonial act on the part of the suspect: “Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis.” 384 U. S., at 765. In contrast, had the police instead asked the suspect directly whether his blood contained a high concentration of alcohol, his affirmative response would have been testimonial even though it would have been used to draw the same inference concerning his physiology. See ibid. (“[T]he blood test evidence . . . was neither [the suspect’s] testimony nor evidence relating to some communicative act”). In this case, the question is not whether a suspect’s “impaired mental faculties” can fairly be characterized as an aspect of his physiology, but rather whether Muniz’s re
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 Schmerber], 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*595 him is not a testimonial one.’ 8 Wigmore § 2265, p. 386.” 487 U. S., at 210-211.
After canvassing the purposes of the privilege recognized in prior cases,
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
We need not explore the outer boundaries of what is “testimonial” today, for our decision flows from the concept’s core meaning. Because the privilege was designed primarily to prevent “a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality,” Ullmann v. United States, 350 U. S. 422, 428 (1956), it is evident that a suspect is “compelled . . . to be a witness against himself” at least whenever he must face the modern-day analog of the historic trilemma—either during a criminal trial where a sworn witness faces the identical three choices, or during custodial interrogation where, as we explained in Miranda, the choices are analogous and hence raise similar concerns.
This approach accords with each of our post-Schmerber cases finding that a particular oral or written response to express or implied questioning was nontestimonial; the questions presented in these cases did not confront the suspects with this trilemma. As we noted in Doe, supra, at 210-211, the cases upholding compelled writing and voice exemplars did not involve situations in which suspects were asked to communicate any personal beliefs or knowledge of facts, and therefore the suspects were not forced to choose between
In contrast, the sixth birthday question in this case required a testimonial response. When Officer Hosterman
C
The Commonwealth argues that the seven questions asked by Officer Hosterman just prior to the sixth birthday question-regarding Muniz’s name, address, height, weight, eye color, date of birth, and current age—did not constitute custodial interrogation as we have defined the term in Miranda and subsequent cases. In Miranda, the Court referred to “interrogation” as actual “questioning initiated by law enforcement officers.” 384 U. S., at 444. We have since clarified that definition, finding that the “goals of the Miranda safeguards could be effectuated if those safeguards extended not only to express questioning, but also to ‘its functional equivalent.’” Arizona v. Mauro, 481 U. S. 520, 526 (1987). In Rhode Island v. Innis, 446 U. S. 291 (1980), the Court defined the phrase “functional equivalent” of express questioning to include “any words or actions on the part of the police (other than those normally attendant to arrest and custody)
We disagree with the Commonwealth’s contention that Officer Hosterman’s first seven questions regarding Muniz’s name, address, height, weight, eye color, date of birth, and current age do not qualify as custodial interrogation as we defined the term in Innis, supra, merely because the questions were not intended to elicit information for investigatory purposes. As explained above, the Innis test focuses primarily upon “the perspective of the suspect.” Perkins, ante, at 296. We agree with amicus United States, however, that Muniz’s answers to these first seven questions are nonetheless admissible because the questions fall within a “routine booking question” exception which exempts from Miranda’s coverage questions to secure the “‘biographical data necessary to complete booking or pretrial services.’” Brief for United States as Amicus Curiae 12, quoting United States v. Horton, 873 F. 2d 180, 181, n. 2 (CA8 1989). The state court found that the first seven questions were “requested for record-keeping purposes only,” App. B16, and therefore the questions appear reasonably related to the police’s adminis
IV
During the second phase of the videotaped proceedings, Officer Hosterman asked Muniz to perform the same three sobriety tests that he had earlier performed at roadside prior to his arrest: the “horizontal gaze nystagmus” test, the “walk and turn” test, and the “one leg stand” test. While Muniz was attempting to comprehend Officer Hosterman’s instructions and then perform the requested sobriety tests, Muniz made several audible and incriminating statements.
The court refused to suppress the videotaped evidence of Muniz’s paltry performance on the physical sobriety tests, reasoning that “‘[Requiring a driver to perform physical [sobriety] tests . . . does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial.’” 377 Pa. Super., at 387, 547 A. 2d, at 422 (quoting Commonwealth v. Benson, 280 Pa.
We disagree. Officer Hosterman’s dialogue with Muniz concerning the physical sobriety tests consisted primarily of carefully scripted instructions as to how the tests were to be performed. These instructions were not likely to be perceived as calling for any verbal response and therefore were not “words or actions” constituting custodial interrogation, with two narrow exceptions not relevant here.
Similarly, we conclude that Miranda does not require suppression of the statements Muniz made when asked to submit to a breathalyzer examination. Officer Deyo read Muniz a prepared script explaining how the test worked, the nature of Pennsylvania’s Implied Consent Law, and the legal consequences that would ensue should he refuse. Officer Deyo then asked Muniz whether he understood the nature of the test and the law and whether he would like to submit to the test. Muniz asked Officer Deyo several questions concerning the legal consequences of refusal, which Deyo answered directly, and Muniz then commented upon his state of inebriation. 377 Pa. Super., at 387, 547 A. 2d, at 422. After offering to take the test only after waiting a couple of hours or drinking some water, Muniz ultimately refused.
V
We agree with the state court’s conclusion that Miranda requires suppression of Muniz’s response to the question regarding the date of his sixth birthday, but we do not agree that the entire audio portion of the videotape must be suppressed.
It is so ordered.
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 1 to 30.
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.
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).
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., at 386, 547 A. 2d, at 421 (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).
In Malloy v. Hogan, 378 U. S. 1 (1964), we held the privilege against self-incrimination applicable to the States through the Fourteenth Amendment.
Under Pennsylvania law, driving under the influence of alcohol consists of driving while intoxicated to a degree “ ‘which substantially impairs [the suspect’s] judgment, or clearness of intellect, or any of the normal faculties essential to the safe operation of an automobile.’” Commonwealth
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 Services v. Bouknight, 493 U. S. 549, 555 (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”).
See Doe, supra, at 212-213 (quoting Murphy v. Waterfront Comm’n 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.”’”
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”).
During custodial interrogation, the pressure on the suspect to respond flows not from the threat of contempt sanctions, but rather from the “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.” Miranda v. Arizona, 384 U. S. 436, 467 (1966). Moreover,
As we explain infra, at 600-601, for purposes of custodial interrogation such a question may be either express, as in this case, or else implied through words or actions reasonably likely to elicit a response.
See also United States v. Wade, 388 U. S. 218, 222-223 (1967) (“[T]o utter words purportedly uttered by the robber [and dictated to the suspect by the police] was not compulsion to utter statements of a ‘testimonial’ nature; [the suspect] was required to use his voice as an identifying physical characteristic, not to speak his guilt” because the words did not reflect any facts or beliefs asserted by the suspect); United States v. Dionisio, 410 U. S. 1, 7 (1973) (where suspects were asked to create voice exemplars by reading already-prepared transcripts, the “voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said” because the content did not reflect any facts or beliefs asserted by the suspects).
The Commonwealth’s protest that it had no investigatory interest in the actual date of Muniz’s sixth birthday, see Tr. of Oral Arg. 18, is inapposite. The critical point is that the Commonwealth had an investigatory interest in Muniz’s assertion of belief that was communicated by his answer to the question. Putting it another way, the Commonwealth may not have cared about the correct answer, but it cared about Muniz’s answer. The incriminating inference stems from the then-existing contents of Muniz’s mind as evidenced by his assertion of his knowledge at that time.
This distinction is reflected in Estelle v. Smith, 451 U. S. 454 (1981), where we held that a defendant’s answers to questions during a psychiatric examination were testimonial in nature. The psychiatrist asked a series of questions, some focusing on the defendant’s account of the crime. After analyzing both the “statements [the defendant] made, and remarks he omitted,” id., at 464, the psychiatrist made a prognosis as to the defendant’s “future dangerousness” and testified to this effect at his capital sentencing hearing. The psychiatrist had no investigative interest in whether the defendant’s account of the crime and other disclosures were either accurate or complete as a historical matter; rather, he relied on the remarks—both those made and omitted—to infer that the defendant would
As amicus United States explains, “[r]ecognizing a ‘booking exception’ to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect’s Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.” Brief for United States as Amicus Curiae 13. See, e. g., United States v. Avery, 717 F. 2d 1020, 1024-1025 (CA6 1983); United States v. Mata-Abundiz, 717 F. 2d 1277, 1280 (CA9 1983); United States v. Glen-Archila, 677 F. 2d 809, 816, n. 18 (CA11 1982).
Most of Muniz’s utterances were not clearly discernible, though several of them suggested excuses as to why he could not perform the physical tests under these circumstances.
This conclusion is in accord with that of many other state courts, which have reasoned that standard sobriety tests measuring reflexes, dexterity, and balance do not require the performance of testimonial acts. See, e. g., Weatherford v. State, 286 Ark. 376, 692 S. W. 2d 605 (1985); People v. Boudreau, 115 App. Div. 2d 652, 496 N. Y. S. 2d 489 (1985); Commonwealth v. Brennan, 386 Mass. 772, 438 N. E. 2d 60 (1982); State v. Badon, 401 So. 2d 1178 (La. 1981); State v. Arsenault, 115 N. H. 109, 336 A. 2d 244 (1975). Muniz does not challenge the state court’s conclusion on this point, and therefore we have no occasion to review it.
The two exceptions consist of Officer Hosterman’s requests that Muniz count aloud from 1 to 9 while performing the “walk and turn” test and that he count aloud from 1 to 30 while balancing during the “one leg stand” test. Muniz’s counting at the officer’s request qualifies as a response to custodial interrogation. However, as Muniz counted accurately (in Spanish) for the duration of his performance on the “one leg stand” test (though he did not complete it), his verbal response to this instruction was not incriminating except to the extent that it exhibited a tendency to slur words, which we have already explained is a nontestimonial component of his response. See supra, at 590-592. Muniz did not count during the “walk and turn” test, and he does not argue that his failure to do so has any independent incriminating significance. We therefore need not decide today whether Muniz’s counting (or not counting) itself was “testimonial” within the meaning of the privilege.
We cannot credit the state court’s contrary determination that Muniz’s utterances (both during this phase of the proceedings and during the next when he was asked to provide a breath sample) were compelled rather than voluntary. 377 Pa. Super., at 390, 547 A. 2d, at 423. The court did not explain how it reached this conclusion, nor did it cite Innis or any other case defining custodial interrogation.
Muniz does not and cannot challenge the introduction into evidence of his refusal to submit to the breathalyzer test. In South Dakota v. Neville, 459 U. S. 553 (1983), we held that since submission to a blood test could itself be compelled, see Schmerber v. California, 384 U. S. 757 (1966), a State’s decision to permit a suspect to refuse to take the test but then to comment upon that refusal at trial did not “compel” the suspect to incriminate himself and hence did not violate the privilege. Neville, supra, at 562-564. We see no reason to distinguish between chemical blood tests
We noted in Schmerber that “there may be circumstances in which the pain, danger, or severity of an operation [or other test seeking physical evidence] would almost inevitably cause a person to prefer confession to undergoing the ‘search,’” 384 U. S., at 765, n. 9, and in such cases “[i]f it wishes to compel persons to submit to such attempts to discover evidence, the State may have to forgo the advantage of any testimonial products of administering the test.” Ibid. See also Neville, supra, at 563 (“Fifth Amendment may bar the use of testimony obtained when the proffered alternative was to submit to a test so painful, dangerous, or severe, or so violative of religious beliefs, that almost inevitably a person would prefer ‘confession’”). But Muniz claims no such extraordinary circumstance here.
See n. 18, supra.
The parties have not asked us to decide whether any error in this case was harmless. The state court is free, of course, to consider this question upon remand.
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