Subject:  PENNSYLVANIA v. MUNIZ, Syllabus



    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
    is being done in connection with this case, at the time the opinion is
    issued.  The syllabus constitutes no part of the opinion of the Court
    but has been prepared by the Reporter of Decisions for the convenience
    of the reader.  See United States v. Detroit Lumber Co., 200 U. S. 321,
    337.
SUPREME COURT OF THE UNITED STATES


Syllabus



PENNSYLVANIA v. MUNIZ


certiorari to the superior court of pennsylvania

No. 89-213.  Argued February 27, 1990, Decided June 18, 1990

Respondent Muniz was arrested for driving while under the influence on a
Pennsylvania highway.  Without being advised of his rights under Miranda v.
Arizona, 384 U. S. 436, he was taken to a Booking Center where, as was the
routine practice, he was told that his actions and voice would be
videotaped.  He then answered seven questions regarding his name, address,
height, weight, eye color, date of birth, and current age, stumbling over
two responses.  He was also asked, and was unable to give, the date of his
sixth birthday.  In addition, he made several incriminating statements
while he performed physical sobriety tests and when he was asked to submit
to a breathalyzer test.  He refused to take the breathalyzer test and was
advised, for the first time, of his Miranda rights.  Both the video and
audio portions of the tape were admitted at trial, and he was convicted.
His motion for a new trial on the ground that the court should have
excluded, inter alia, the videotape was denied.  The Pennsylvania Superior
Court reversed.  While finding that the videotape of the sobriety testing
exhibited physical rather than testimonial evidence within the meaning of
the Fifth Amendment, the court concluded that Muniz's answers to questions
and his other verbalizations were testimonial and, thus, the audio portion
of the tape should have been suppressed in its entirety.

Held: The judgment is vacated and remanded.

377 Pa. Super. 382, 547 A. 2d 419, vacated and remanded.

    Justice Brennan delivered the opinion of the Court with respect to
    Parts I, II, III-A, III-B, and IV, concluding that only Muniz's
    response to the sixth birthday question constitutes a testimonial
    response to custodial interrogation for purposes of the
    Self-Incrimination Clause of the Fifth Amendment.  Pp. 5-16, 18-22.

    (a) The privilege against self-incrimination protects an "accused from
    being compelled to testify against himself, or otherwise provide the
    State with evidence of a testimonial or communicative nature,"
    Schmerber v. California, 384 U. S. 757, 761, but not from being
    compelled by the State to produce "real or physical evidence," id., at
    764.  To be testimonial, the communication must, "explicitly or
    implicitly, relate a factual assertion or disclose information."  Doe
    v. United States, 487 U. S. 201, 210.  Pp. 5-6.

    (b) Muniz's answers to direct questions are not rendered inadmissible
    by Miranda merely because the slurred nature of his speech was
    incriminating.  Under Schmerber and its progeny, any slurring of speech
    and other evidence of lack of muscular coordination revealed by his
    responses 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 of his voice by reading a transcript, see United States v.
    Dionisio, 410 U. S. 1, does not, without more, compel him to provide a
    "testimonial" response for purposes of the privilege.  Pp. 7-9.

    (c) However, Muniz's response to the sixth birthday question was
    incriminating not just because of his delivery, but also because the
    content of his answer supported an inference that his mental state was
    confused.  His response was testimonial because he was required to
    communicate an express or implied assertion of fact or belief and,
    thus, was confronted with the "trilemma" of truth, falsity, or silence,
    the historical abuse against which the privilege against
    self-incrimination was aimed.  By hypothesis, the custodial
    interrogation's inherently coercive environment precluded the option of
    remaining silent, so he was left with the choice of incriminating
    himself by admitting the truth that he did not then know the date of
    his sixth birthday, or answering untruthfully by reporting a date that
    he did not know was accurate (which would also have been
    incriminating).  Since the state court's holdings that the sixth
    birthday question constituted an unwarned interrogation and that
    Muniz's answer was incriminating were not challenged, this testimonial
    response should have been suppressed.  Pp. 9-16.

    (d) Muniz's incriminating utterances during the sobriety and
    breathalyzer tests were not prompted by an interrogation within the
    meaning of Miranda and should not have been suppressed.  The officer's
    dialogue with Muniz concerning the physical sobriety tests consisted
    primarily of carefully scripted instructions as to how the tests were
    to be performed that were not likely to be perceived as calling for any
    verbal response.  Therefore, they were not "words or actions"
    constituting custodial interrogation, and Muniz's incriminating
    utterances were "voluntary."  The officer administering the
    breathalyzer test also carefully limited her role to providing Muniz
    with relevant information about the test and the implied consent law.
    She questioned him only as to whether he understood her instructions
    and wished to submit to the test.  These limited and focused inquiries
    were necessarily "attendant to" a legitimate police procedure and were
    not likely to be perceived as calling for any incriminating response.
    Pp. 18-22.

    Justice Brennan, joined by Justice O'Connor, Justice Scalia, and
    Justice Kennedy, concluded in Part III-C that the first seven questions
    asked Muniz fall outside Miranda protections and need not be
    suppressed.  Although they constituted custodial interrogation, see
    Rhode Island v. Innis, 446 U. S. 291, they are nonetheless admissible
    because the questions were asked "for record-keeping purposes only,"
    and therefore they 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,"
    United States v. Horton, 873 F. 2d 180, 181, n. 2.  Pp. 17-18.

    The Chief Justice, joined by Justice White, Justice Blackmun, and
    Justice Stevens, concluded that Muniz's responses to the "booking"
    questions were not testimonial and therefore do not warrant application
    of the privilege.  P. 3.

Brennan, J., announced the judgment of the Court and delivered the opinion
of the Court with respect to Parts I, II, III-A, and IV, in which
Rehnquist, C. J., and White, Blackmun, Stevens, O'Connor, Scalia, and
Kennedy, JJ., joined, the opinion of the Court with respect to Part III-B,
in which Marshall, O'Connor, Scalia, and Kennedy, JJ., joined, and an
opinion with respect to Part III-C, in which O'Connor, Scalia, and Kennedy,
JJ., joined.  Rehnquist, C. J., filed an opinion concurring in part,
concurring in the result in part, and dissenting in part, in which White,
Blackmun, and Stevens, JJ., joined.  Marshall, J., filed an opinion
concurring in part and dissenting in part.

------------------------------------------------------------------------------




Subject: 89-213, OPINION, PENNSYLVANIA v. MUNIZ

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-213



PENNSYLVANIA, PETITIONER v. INOCENCIO
MUNIZ


on writ of certiorari to the superior court of pennsylvania, harrisburg
office

[June 18, 1990]



    Justice Brennan delivered the opinion of the Court, except as to Part
III-C.

    We must decide in this case whether various incriminating utterances of
a drunk-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.

I
    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. {1}  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. 1547 (1987), and explained that under the law his refusal to take the
test would result in automatic suspension of his drivers' 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.
    Both the video and audio portions of the videotape were admitted into
evidence at Muniz' bench trial, {2} 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."'  Id., at C6, quoting Commonwealth v. Benson, 280
Pa. Super. 20, 29, 421 A. 2d 383, 387 (1980).
    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 physical dexterity tests and discussing the breathalyzer
test "are precisely the sort of testimonial evidence that we expressly
protected in [previous cases]," id., at 390, 547 A. 2d at 423, because they
"reveal[ed] his thought processes."  Id., at 389, 547 A. 2d, at 423.  The
court further explained: "[N]one of Muniz's utterances were spontaneous,
voluntary verbalizations.  Rather, they were clearly compelled by the
questions and instructions presented to him during his detention at the
Booking Center.  Since the . . . responses and communications were elicited
before Muniz received his Miranda warnings, they should have been excluded
as evidence."  Id., at 390, 547 A. 2d, at 423. {3}  Concluding that the
audio portion of the videotape should have been suppressed in its entirety,
the court reversed Muniz's conviction and remanded the case for a new
trial. {4}  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).

II
    The Self-Incrimination Clause of the Fifth Amendment {5} 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.

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 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."'  384 U. S., at 763.  We also acknowledged that
"both federal and state courts have usually held that it offers no
protection against compulsion to submit to fingerprinting, photographing,
or measurements, to write or speak for identification, to appear in court,
to stand, to assume a stance, to walk, or to make a particular gesture."
Id., at 764.  Embracing this view of the privilege's contours, we held that
"the privilege is a bar against compelling `communications' or `testimony,'
but that compulsion which makes a suspect or accused the source of `real or
physical evidence' does not violate it."  Ibid.  Using this "helpful
framework for analysis," ibid., we held that a person suspected of driving
while intoxicated could be forced to provide a blood sample, because that
sample was "real or physical evidence" outside the scope of the privilege
and the sample was obtained in manner by which "[p]etitioner's testimonial
capacities were in no way implicated."  Id., at 765.
    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 exhibit his physical characteristics, not
compulsion to disclose any knowledge he might have."  Id., at 222; see id.,
at 222-223 (suspect was "required to use his voice as an identifying
physical characteristic").  In Gilbert v. California, 388 U. S. 263 (1967),
we held that a suspect could be compelled to provide a handwriting
exemplar, explaining that such an exemplar, "in contrast to the content of
what is written, like the voice or body itself, is an identifying physical
characteristic outside [the privilege's] protection."  Id., at 266-267.
And in United States v. Dionisio, 410 U. S. 1 (1973), we held that suspects
could be compelled to read a transcript in order to provide a voice
exemplar, explaining that 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."  Id., at 7.
    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 non testimonial 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. {6}  The Commonwealth and United States as amicus curiae argue
that this incriminating inference does not trigger the protections of the
Fifth Amendment privilege because the inference concerns "the physiological
functioning of [Muniz's] brain," Brief for Petitioner 21, which is asserted
to be every bit as "real or physical" as the physiological makeup of his
blood and the timbre of his voice.
    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: "[n]ot
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
[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 response to the sixth birthday question that gave
rise to the inference of such an impairment was testimonial in nature. {7}
    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 2265, p.386."  487 U. S., at 210-211.


After canvassing the purposes of the privilege recognized in prior cases,
{8} 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}  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"') (quoting Couch v. United States,
409 U. S. 322, 327 (1973)).
    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. {10}
Whatever else it may include, therefore, the definition of "testimonial"
evidence articulated in Doe must encompass all responses to questions that,
if asked of a sworn suspect during a criminal trial, could place the
suspect in the "cruel trilemma."  This conclusion is consistent with our
recognition in Doe that "[t]he vast majority of verbal statements thus will
be testimonial" because "[t]here are very few instances in which a verbal
statement, either oral or written, will not convey information or assert
facts."  487 U. S., at 213.  Whenever a suspect is asked for a response
requiring him to communicate an express or implied assertion of fact or
belief, {11} the suspect confronts the "trilemma" of truth, falsity, or
silence and hence the response (whether based on truth or falsity) contains
a testimonial component.
    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, 487 U.
S., 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 truthfully or falsely revealing their thoughts.
We carefully noted in Gilbert v. California, 388 U. S. 263 (1967), for
example, that a "mere handwriting exemplar, in contrast to the content of
what is written, like the voice or body itself, is an identifying physical
characteristic outside [the privilege's] protection."  Id., at 266-267
(emphasis added).  Had the suspect been asked to provide a writing sample
of his own composition, the content of the writing would have reflected his
assertion of facts or beliefs and hence would have been testimonial; but in
Gilbert "[n]o claim [was] made that the content of the exemplars was
testimonial or communicative matter."  Id., at 267. {12}  And in Doe, the
suspect was asked merely to sign a consent form waiving a privacy interest
in foreign bank records.  Because the consent form spoke in the
hypothetical and did not identify any particular banks, accounts, or
private records, the form neither "communicate[d] any factual assertions,
implicit or explicit, [n]or convey[ed] any information to the Government."
487 U. S., at 215.  We concluded, therefore, that compelled execution of
the consent directive did not "forc[e] [the suspect] to express the
contents of his mind," id., at 210, n. 9, but rather forced the suspect
only to make a "nonfactual statement."  Id., at 213, n. 11.
    In contrast, the sixth birthday question in this case required a
testimonial response.  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.  By
hypothesis, the inherently coercive environment created by the custodial
interrogation precluded the option of remaining silent, see n. 10, supra.
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).
The content of his truthful answer supported an inference that his mental
faculties were impaired, because his assertion (he did not know the date of
his sixth birthday) was different from the assertion (he knew the date was
[correct date]) that the trier of fact might reasonably have expected a
lucid person to provide.  Hence, the incriminating inference of impaired
mental faculties stemmed, not just from the fact that Muniz slurred his
response, but also from a testimonial aspect of that response. {13}
    The state court held that the sixth birthday question constituted an
unwarned interrogation for purposes of the privilege against
self-incrimination, 377 Pa. Super., at 390, 547 A. 2d, at 423, and that
Muniz's answer was incriminating.  Ibid.  The Commonwealth does not
question either conclusion.  Therefore, because we conclude that Muniz's
response to the sixth birthday question was testimonial, the response
should have been suppressed.
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) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.  The latter portion of
this definition focuses primarily upon the perceptions of the suspect,
rather than the intent of the police."  Id., at 301 (footnotes omitted);
see also Illinois v. Perkins,  U. S. ,  (1990).  However, "[a]ny 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" what the police reasonably should have known.  Innis,
supra, at 302, n. 8.  Thus, custodial interrogation for purposes of Miranda
includes both express questioning, and also words or actions that, given
the officer's knowledge of any special susceptibilities of the suspect, the
officer knows or reasonably should know are likely to "have . . . the force
of a question on the accused," Harryman v. Estelle, 616 F. 2d 870, 874 (CA5
1980), and therefore be reasonably likely to elicit an incriminating
response.
    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, supra, at .  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 the 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 administrative concerns. {14}  In this context,
therefore, the first seven questions asked at the Booking Center fall
outside the protections of Miranda and the answers thereto need not be
suppressed.

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. {15}  Muniz argued to the state court that
both the videotaped performance of the physical tests themselves and the
audiorecorded verbal statements were introduced in violation of Miranda.
    The court refused to suppress the videotaped evidence of Muniz's paltry
performance on the physical sobriety tests, reasoning that "[r]equiring 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. Super., at 29, 421 A.
2d, at 387). {16}  With respect to Muniz's verbal statements, however, the
court concluded that "none of Muniz's utterances were spontaneous,
voluntary verbalizations," 377 Pa. Super., at 390, 547 A. 2d, at 423, and
because they were "elicited before Muniz received his Miranda warnings,
they should have been excluded as evidence."  Ibid.
    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. {17}  The dialogue also
contained limited and carefully worded inquiries as to whether Muniz
understood those intructions, but these focused inquiries were necessarily
"attendant to" the police procedure held by the court to be legitimate.
Hence, Muniz's incriminating utterances during this phase of the videotaped
proceedings were "voluntary" in the sense that they were not elicited in
response to custodial interrogation. {18}  See South Dakota v. Neville, 459
U. S. 553, 564, n. 15 (1983) (drawing analogy to "police request to submit
to fingerprinting or photography" and holding that police inquiry whether
suspect would submit to blood-alcohol test was not "interrogation within
the meaning of Miranda").
    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. {19}
    We believe that Muniz's statements were not prompted by an
interrogation within the meaning of Miranda, and therefore the absence of
Miranda warnings does not require suppression of these statements at trial.
{20}  As did Officer Hosterman when administering the three physical
sobriety tests, see supra, at 19-20, Officer Deyo carefully limited her
role to providing Muniz with relevant information about the breathalyzer
test and the implied consent law.  She questioned Muniz only as to whether
he understood her instructions and wished to submit to the test.  These
limited and focused inquiries were necessarily "attendant to" the
legitimate police procedure, see Neville, supra, at 564, n. 15, and were
not likely to be perceived as calling for any incriminating response. {21}
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. {22}  Accordingly, the court's judgment
reversing Muniz's conviction is vacated, and the case is remanded for
further proceedings not inconsistent with this opinion.
It is so ordered.


 
 
 
 
------------------------------------------------------------------------------
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.

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.

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
    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).

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.

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").

8
    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.""'

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").

10
    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,
false testimony does not give rise directly to sanctions (either religious
sanctions for lying under oath or prosecutions for perjury), but only
indirectly (false testimony might itself prove incriminating, either
because it links (albeit falsely) the suspect to the crime or because the
prosecution might later prove at trial that the suspect lied to the police,
giving rise to an inference of guilty conscience).  Despite these
differences, however, "[w]e are satisfied that all the principles embodied
in the privilege apply to informal compulsion exerted by law-enforcement
officers during in-custody questioning."  Id., at 461; see id., at 458
(noting "intimate connection between the privilege against
self-incrimination and police custodial questioning").

11
    As we explain infra, at 17-18, 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.

12
    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).

13
    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
likely pose a threat to society in the future because of his state of mind.
We nevertheless explained that the "Fifth Amendment privilege . . . is
directly involved here because the State used as evidence against [the
defendant] the substance of his disclosures during the pretrial psychiatric
examination."  Id., at 464-465 (emphasis added).  The psychiatrist may have
presumed the defendant's remarks to be truthful for purposes of drawing his
inferences as to the defendant's state of mind, see South Dakota v.
Neville, 459 U. S. 553, 561-562, n. 12 (1983), but that is true in Muniz's
case as well: the incriminating inference of mental confusion is based on
the premise that Muniz was responding truthfully to Officer Hosterman's
question when he stated that he did not then know the date of his sixth
birthday.

14
    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).

15
    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.

16
    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.

17
    The two exceptions consist of Officer Hosterman's requests that Muniz
count aloud from one to nine while performing the "walk-the-line" test and
that he count aloud from one to thirty 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 7-9.  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) itself was "testimonial"
within the meaning of the privilege.

18
    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.

19
    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 and breathalyzer tests for these purposes.  Cf. Schmerber, supra, at
765-766, n. 9.

20
    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.

21
    See n. 18, supra.

22
    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.





Subject: 89-213, CONCUR/DISSENT, PENNSYLVANIA v. MUNIZ

 


        SUPREME COURT OF THE UNITED STATES


No. 89-213



PENNSYLVANIA, PETITIONER v. INOCENCIO
MUNIZ


on writ of certiorari to the superior court of pennsylvania, harrisburg
office

[June 18, 1990]



    Justice Marshall, 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 infra, at 4, n. 1, that question constituted
custodial interrogation.  Because the police did not apprise Muniz of his
Miranda rights before asking the question, his response should have been
suppressed.
    I disagree, however, with the plurality's recognition in Part III-C of
a "routine booking question" exception to Miranda.  Moreover, even were
such an exception warranted, it should not extend to booking questions that
the police should know are reasonably likely to elicit incriminating
responses.  Because the police in this case should have known that the
seven booking questions were reasonably likely to elicit incriminating
responses and because those questions were not preceded by Miranda
warnings, Muniz's testimonial responses should have been suppressed.
    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
State'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
    The plurality would create yet another exception to Miranda v. Arizona,
384 U. S. 436 (1966): the "routine booking question" exception.  See also
Illinois v. Perkins, 495 U. S.  (1990) (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;
Fare v. Michael C., 442 U. S. 707, 718 (1979); Perkins, supra, at
(Marshall, J., dissenting).  The plurality's position, were it adopted by a
majority of the Court, would necessitate difficult, time-consuming
litigation over whether particular questions asked during booking are
"routine," whether they are necessary to secure biographical information,
whether that information is itself necessary for recordkeeping purposes,
and whether the questions are, despite their routine nature, designed to
elicit incriminating testimony.  The far better course would be to maintain
the clarity of the doctrine by requiring police to preface all direct
questioning of a suspect with Miranda warnings if they want his responses
to be admissible at trial.
B
    The plurality nonetheless asserts that Miranda does not apply to
express questioning designed to secure "`biographical data necessary to
complete booking or pretrial services,"' ante, at 18 (citation omitted), so
long as the questioning is not "`designed to elicit incriminatory
admissions,"' ante, at 18, 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 are usually 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 that the police should know is reasonably likely to elicit an
incriminating response, cf. Innis, 446 U. S., at 301, regardless of whether
the question is "designed" to elicit an incriminating response.  Although
the police's intent to obtain an incriminating response is relevant to this
inquiry, the key components of the analysis are the nature of the
questioning, the attendant circumstances, and the perceptions of the
suspect.  Cf. id., at 301, n. 7.  Accordingly, Miranda warnings are
required before the police may engage in any questioning reasonably likely
to elicit an incriminating response.
    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 2; 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 the majority's
standard. {1}
C
    Although the plurality 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 15-16, 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 because the
police should have known that their conduct was "reasonably likely to evoke
an incriminating response."  Innis, supra, at 301.  As the Court recounts,
ante, at 18-20, Officer Hosterman instructed Muniz how to perform the
sobriety tests, inquired whether Muniz understood the instructions, and
then directed Muniz to perform the tests.  Officer Deyo later explained the
breathalyzer examination and the nature of the State's Implied Consent Law,
and asked several times if Muniz understood the Law and wanted to take the
examination.  Ante, at 20-21.  Although these words and actions might not
prompt most sober persons to volunteer incriminating statements, Officers
Hosterman and Deyo had good reason to believe, from the arresting officer's
observations, App. 13-19 (testimony of Officer Spotts), from Muniz's
failure of the three roadside sobriety tests, id., at 19, and from their
own observations, that Muniz was intoxicated.  The officers thus should
have known that Muniz was reasonably likely to have trouble understanding
their instructions and their explanation of the Implied Consent Law, and
that he was reasonably likely to indicate, in response to their questions,
that he did not understand the tests or the Law.  Moreover, because Muniz
made several incriminating statements regarding his intoxication during and
after the roadside tests, id., at 20-21, the police should have known that
the same tests at the Booking Center were reasonably likely to prompt
similar incriminating statements.
    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 an incriminating response.  Id., at 302, n. 8; supra, at
3.  See also Arizona v. Mauro, 481 U. S. 520, 531 (1987) (Stevens, J.,
dissenting) (police "interrogated" suspect by allowing him to converse with
his wife "at a time when they knew [the conversation] was reasonably likely
to produce an incriminating statement").  Muniz's apparent intoxication,
then, and the police's knowledge of his statements during and after the
roadside tests compel the conclusion that the police should have known that
their words and actions were reasonably likely to elicit an incriminating
response. {2}  Muniz's statements were thus the product of custodial
interrogation and should have been suppressed because Muniz was not first
given the Miranda warnings.
B
    The Court concedes that Officer Hosterman's directions that Muniz count
aloud to 9 while performing the "walk-the- line" test and to 30 while
performing the "one-leg-stand" test constituted custodial interrogation.
Ante, at 20, 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 15-16; supra, at 4.  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, which [the Court
already found to be] nontestimonial [evidence]."  Ante, at 20, n. 17.  The
Court's conclusion is wrong for two reasons.  First, as a factual matter,
Muniz's responses were incriminating for a reason other than his apparent
slurring.  Muniz did not count at all during the walk- the-line test,
supporting the inference that he was unable to do so. {3}  And, contrary to
the Court's assertion, ibid., during the one-leg-stand test, Muniz
incorrectly counted in Spanish from one to six, skipping the number two.
Even if Muniz had not skipped "two," his failure to complete the count was
incriminating in itself.
    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 Muniz that the prosecution
sought to use against him was incriminating under Miranda.  That the
majority thinks Muniz's responses were incriminating only because of his
slurring is therefore irrelevant. Because Muniz did not receive the Miranda
warnings, then, his responses should have been suppressed.
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. {4}

 
 
 
 
 

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1
    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 the plurality's proposed routine booking question
exception.  The question serves no apparent recordkeeping need, as the
police already possessed Muniz's date of birth.  The absence of any
administrative need for the question, moreover, suggests that the question
was designed to obtain an incriminating response.  Regardless of any
administrative need for the question and regardless of the officer's
intent, Miranda warnings were required because the police should have known
that the question was reasonably likely to elicit an incriminating
response.  Supra, at 3-4.

2
    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.

3
    The Commonwealth could not use Muniz's failure to count against him
regardless of whether his silence during the walk-the-line test was itself
testimonial in those circumstances.  Cf. ante, at 20, 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").

4
    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 21, 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.
Subject: 89-213, CONCUR/DISSENT, PENNSYLVANIA v. MUNIZ

 


        SUPREME COURT OF THE UNITED STATES


No. 89-213



PENNSYLVANIA, PETITIONER v. INOCENCIO
MUNIZ


on writ of certiorari to the superior court of pennsylvania, harrisburg
office

[June 18, 1990]



    Chief Justice Rehnquist, 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'
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 that

"[w]hen 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 14]. . . . 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 15.


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' answer to this question was "testimonial" for
purposes of the Fifth Amendment.
    The need for the use of the human voice does not automatically make an
answer testimonial, United States v. Wade, 388 U. S. 218, 222-223 (1967),
any more than does the fact that a question calls for the exhibition of
one's handwriting in written characters.  Gilbert v. California, 388 U. S.
263, 266- 267 (1967).  In Schmerber v. California, 384 U. S. 757, (1966),
we held that the extraction and chemical analysis of a blood sample
involved no "shadow of testimonial compulsion upon or enforced
communication by the accused."  Id., at 765.  All of these holdings were
based on Justice Holmes' opinion in Holt v. United States, 218 U. S. 245
(1910), where he said for the Court that "the prohibition of compelling a
man in a criminal court to be a 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."  Id., at
252-253.
    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' mental processes for the same purpose.
    Surely if it were relevant, a suspect might be asked to take an eye
examination in the course of which he might have to admit that he could not
read the letters on the third line of the chart.  At worst, he might utter
a mistaken guess.  Muniz likewise might have attempted to guess the correct
response to the sixth birthday question instead of attempting to calculate
the date or answer "I don't know."  But the potential for giving a bad
guess does not subject the suspect to the truth-falsity-silence predicament
that renders a response testimonial and, therefore, within the scope of the
Fifth Amendment privilege.
    For substantially the same reasons, Muniz' 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' 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.

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