Amicus Curiae Brief — Pennsylvania v. Muniz

In the Supreme Court of the United States

OcToser TERM, 1989

COMMONWEALTH OF PENNSYLVANIA, PETITIONER

v.

INOCENCIO MUNiIZ

ON WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF PENNSYLVANIA,

MIDDLE DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, Jr.

Assisiant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

CHRISTOPHER J. WRIGHT

Assisiani to the Solicitor General

of Justice

Washington, D.C. 20530

(292) 633-2217

QUESTION PRESENTED

Whether a videotape of respondent being booked, tak-

ing certain sobriety tests, and refusing to take a breath test

was properly admitted, even though respondent had not

been advised of his rights under Miranda v. Arizona, 384

U.S. 436 (1966).

TABLE OF CONTENTS

imeerest of the United States ...... 2.2.2... cece:

eee ceca necesaccececcccccccecs

Ne Bote ce kw ececekeceses

Argument:

The videotape of respondent’s conduct at the book-

ing center, including the audio portion, was proper-

ly admitted into evidence .....................

I ID oc ccc cccccccccecs

2. The “sixth birthday” question .............

se csc cc cecccssceces

4. The statements made during the sobriety

eee ec enccccncesccecccesce

EEE EE

TABLE OF AUTHORITIES

Cases:

Berkemer v. McCarty, 468 U.S. 420 (1984) .....

Commonweaith v. Benson, 280 Pa. Super. 20, 421

nn ce weeescecececse

Commonwealth v. Brennan, 386 Mass. 772, 438

EE

Commonwealth v. Bruder, 365 Pa. Super. 106, 528

A.2d 1385 (1987), allocatur denied, 518 Pa. 635,

$42 A.2d 1365, rev'd, 109 S. Ct. 205 (1988) ..

Commonwealth v. Conway, 368 Pa. Super. 488, 534

A.2d 541 (1987), allocatur denied, 520 Pa. 581,

DD on ccc ccccccccecccesss

Commonwealth v. Thompson, 377 Pa. Super. 598,

CE

Delgado v. State, 691 S.W.2d 722 (Tex. Crim. App.

eo ces ceeccce

Doe v. United States, 108 S. Ct. 2341 (1988) ...

Estelle v. Smith, 451 U.S. 454 (1981) ..........

Fisher v. United States, 425 U.S. 391 (1976) ....

(111)

Page

18

11, 16

IV

Cases — Continued: Page

Gilbert v. California, 388 U.S. 263 (1967) ...... 15, 18

Gladden v. Roach, 864 F.2d 1196 (Sth Cir.),

cert. denied, 109 S. Ct. 3192 (1989) ......... 12-13

Miranda v. Arizona, 384 U.S. 436 (1966) ....3, 6, 8, 12

Palmer v. State, 604 P.2d 1106 (Alaska 1979) .. 10, 19

Pennsylvania v. Bruder, 109 S. Ct. 205 (1988) .. 11

Rhode Island v. Innis, 446 U.S. 291 (1980) ...9, 12, 19

Robinson v. Percy, 738 F.2d 214 (7th Cir.

ED ccccceenssackbunadetkensaksctuabesie 13

Schmerber v. California, 384 U.S. 757 (1966) ...4, 8, 18

Smith v. Estelle, 602 F.2d 694 (Sth Cir. 1979) .. 16

South Dakota v. Neville, 459 U.S. 553 (1983) .. 12,

17, 19

State v. Roadifer, 346 N.W.2d 438 (S.D. 1984).. 10

State v. Strickland, 276 N.C. 253, 173 S.E.2d 129

CD oncaneues ductevisstusheuecsueanveas 10

Thompson v. People, 181 Colo. 194, 510 P.2d 311

CD. ccdukduasedecnnscawasecesvesinaniaes 1G

United States v. Avery, 717 F.2d 1020 (6th Cir. 1983),

cert. denied, 466 U.S. 905 (1984) ............ 13

United States v. Booth, 669 F.2d 1231 (9th Cir.

SN 66640ncecsnndanesawuneenwesnenereent 13

United States v. Dionisio, 410 U.S. 1 (1973) .... 7, 14,

15, 18

United States v. Emery, 682 F.2d 493 (Sth Cir.), cert.

denied, 459 U.S. 1044 (1982) ............... 19

United States v. Glen-Archila, 677 F.2d 809 (Lith

Cir.), cert. denied, 459 U.S. 874 (1982) ...... - §

United States v. Gotchis, 803 F.2d 74 (2d Cir.

sien ¢cecnkiawaaueeReebeeledaneteee 13

United States v. Horton, 873 F.2d 180 (8th Cir.

PD dodisdhauskhadeeciseennteneie t 12

United States v. Taylor, 799 F.2d 126 (4th Cir.

1986), cert. denied, 479 U.S. 1093 (1987) .... 13

United States v. Wade, 388 U.S. 218 (1967) .... 7, 8,

Cases — Continued: Page

United States ex rel. Hines v. LaVallee, 521 F.2d

1109 (2d Cir. 1975), cert. denied, 423 U.S. 1090

a RR = 9 al eR can 12

Constitution and statutes:

Om CMe. Amma. V nn cccccccsccccccces 4,7, 8, 11

14, 15, 16, 17, 18

Self-Incrimination Clause ................ 17

75 Pa. Cons. Stat. Ann. § 1547 (Purdon 1977) .. 3

23 U.S.C. 402 (1982 & Supp. V 1987) ......... |

Miscellaneous:

1 R. Erwin, M. Minzer, L. Greenberg & H. Gold-

stein, Defense of Drunk Driving Cases (3d ed.

Metin teccoetccédunumvaneddcustes kd: 2, 9, 10, 11

1 W. LaFave & J. Israel, Criminal Procedure

DEE White pvedceeadudivdensscudéeueen vs 13

National Highway Traffic Safety Admin., U.S. Dep't

of Transp., /mproved Sobriety Testing, US DOT-

NHTSA HS-0806512 (Aug. 1989) ........... 2

Note, Self-incrimination Issues in the Context

of Videotaping Drunk Drivers: Focusing on the

Fifth Amendment, 10 Harv. J.L. & Pub. Pol’y

obs dcneukdacéucedeseeeeenne eke 9, 10

In the Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-213

COMMONWEALTH OF PENNSYLVANIA, PETITIONER

v.

INOCENCIO MUNIZ

ON WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF PENNSYLVANIA,

MIDDLE DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

~

INTEREST OF THE UNITED STATES

The United States has dn interest in this case because the

question whether particular evidence is testimonial arises

frequently in federal criminal prosecutions. In addition, the

federal government has an interest in sobriety testing and

videotaping drunk driving suspects. The National Highway

Traffic Safety Administration, part of the Department of

Transportation, has distributed manuals advising local

police departments on the conduct of field sobriety tests.

With the Department’s approval, many local police depart-

ments have used federal funds provided under 23 U.S.C.

402 (1982 & Supp. V 1987) to purchase equipment for

videotaping sobriety tests. Finally, the decision in this case

will have a direct impact on federal law enforcement efforts,

(1)

2

as it will determine whether officers who make drunk driv-

ing arrests on federal property may videotape subjects tak-

ing sobriety tests in order to secure reliable and graphic

evidence of the subjects’ condition at the time of arrest.

STATEMENT

1. At2:50a.m. on November 30, 1986, a police officer

on patrol in Cumberland County, Pennsylvania, saw a car

stopped on the side of the road with its hazard lights

flashing. Respondent was sitting in the driver’s seat, and

a passenger was sitting beside him. The officer stopped and

asked if he could be of assistance, but respondent said that

he had just stopped to urinate. The officer smelled alcohol

on respondent’s breath and warned him to sober up before

driving. Respondent said that he would stay on the side of

the road until he could drive safely. As the officer was re-

turning to his patrol car, however, respondent drove away.

Pet. App. B1-B3, C3-C4.

The officer followed respondent and pulled him over after

respondent had driven about half a mile. When respondent

had difficulty producing his driver’s license, the officer ad-

ministered three sobriety tests on the side of the road — the

horizontal gaze nystagmus test, the “walk and turn” test,

and the “one leg stand” test.' Respondent failed each of

' The National Highway Trafisc Safety Administration (NHTSA)

recommends the administration of these three tests. Sez U'.S. Dep't of

Transp., /mproved Sobriety Testing, US DOT-NHTSA HS-0806512

(Aug. 1989), reprinted in | R. Erwin, M. Minzer, L. Greéberg & H.

Goldstein, Defense of Drunk Driving Cases § 8A.99, at 8A-42 to BA-S1

(3d ed. 1989). As the NHTSA manual explains, the horizontal gaze

nystagmus test measures “the jerking of the eyes as they gaze to the

side.” Jd. at 8A-43. Everyone exhibits some jerking of the eyes upon

looking to the side, but in the case of intoxicated persons “the onset

of the jerking occurs after fewer degrees of turning, and the jerking

at more extreme angles becomes more distinct.” /d. at BA-43, 8A-45.

The “walk and turn” test requires the subject to walk heel-to-toe along

3

the tests. He told the officer that he could not perform the

various tasks because he was too inebriated. Pet. App.

B3-B4.

The officer then took respondent to the Cumberland

County Central Booking Center. In accordance with its

standard procedure in drunk driving cases, the Booking

Center videotaped the proceedings there. An officer at the

Booking Center first asked respondent his name, address,

height, weight, eye color, date of birth, and current age.

The officer then asked respondent the date of his sixth birth-

day. When respondent was unable to calculate that date,

the officer administered the same three sobriety tests that

respondent had performed on the side of the road. Pet. App.

B15-B16. While performing the tests, respondent “attempted

to explain his difficulties in performing the various tasks,

and often requested further clarification of the tasks he was

to perform.” Jd. at B16. An employee at the Booking Center

then explained Pennsylvania’s Implied Consent Law to

respondent and sought to check his blood alcohol level by

a breath test.? After asking a number of questions about

the Pennsylvania law, respondent refused to take the breath

test. He was then advised of his rights under Miranda v.

Arizona, 384 U.S. 436 (1966). Pet. App. B15-B16, C6.

2. The videotape showing the booking, the administra-

tion of the sobriety tests, and petitioner’s refusal to take

the breath test was admitted into evidence at respondent’s

bench trial. Testimony relating to the sobriety tests ad-

a Straight line for nine paces, turn, and walk heel-to-toe along the line

again for nine paces. /d. at 8A-46. The “one leg stand” test requires

the subject to stand on one leg for 30 seconds. /d. at 8A-48. As would

be expected, persons who are intoxicated often have difficulty perfor-

ming the walk and turn and one leg stand tests.

? Under that law, 75 Pa. Cons. Stat. Ann. § 1547 (Purdon 1977),

individuals driving on Pennsylvania roads are deemed to have consented

to have their blood alcohol level checked.

4

ministered on the side of the road was aiso admitted. Pet.

App. C5-C6. Respondent was convicted of driving under

the influence of alcohol. As a repeat offender, he was

sentenced to imprisonment for not less than 45 days nor

more than 23 months. Pet. App. D2.

Respondent filed a motion for a new trial, arguing 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 [respondent's] receiving his Miranda warnings.” Pet.

App. C5-C6. The trial court denied the motion. It explained

that “requesting a driver, suspected of driving under the in-

fluence 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.” Jbid. (quoting Commonwealth v.

Benson, 280 Pa. Super. 20, 29, 421 A.2d 383, 387 (1980)

(brackets in original)). The court added: “This would likewise

hold true for the videotape of the defendant taken at the

booking center, particularly where, as here, the defendant

gave no incriminating statement; rather it was the defendant’s

actions that were incriminating.” Pet. App. C6.

3. The Superior Court reversed by a 2-1 vote. Pet. App.

B1-B20. At the outset, the court agreed with the trial court

that, under Schmerber v. California, 384 U.S. 757 (1966),

sobriety tests elicit physical evidence rather than testimonial

evidence, so that the Fifth Amendment does not bar the

government from compelling suspects to take such tests. Ac-

cordingly, the court held that when respondent was asked

“to submit to a field sobriety test, and later perform these

tests before the videotape camera, no Miranda warnings

were required.” Pet. App. B9-B10. The court concluded,

however, that “when the physical nature of the tests begins

to yield testimonial and communicative statements * * *

5

the protections afforded by Miranda are invoked.” /d. at

B10.

The Superior Court held that during the booking pro-

cess respondent “was subjected to questioning that elicited

information revealing his thought processes.” Pet. App.

BIS. In addition, the court held that “the questions posited

by [respondent] during his on-camera physical sobriety tests”

constituted testimonial evidence that should not have been

admitted at trial. /d. at B17. The court further held that

respondent’s statements, including his responses to the book-

ing questions, his comments while taking the sobriety tests,

and his questions about the Pennsylvania implied consent

law, “were clearly compelled by the questions and instruc-

tions presented to him during his detention at the Booking

Center.” Ibid. Finally, the court held that respondent's

videotaped responses “were clearly prejudicial, and certainly

led the finder of fact to infei that his confusion and failure

to speak clearly indicated a state of drunkenness that pro-

hibited him from safely operating his vehicle.” Jd. at

B17-B18. The court therefore concluded that respondent

must be granted a new trial.

The dissenting judge concluded that most of the disputed

evidence was not testimonial and therefore did not have to

be excluded at trial. According to the dissenting judge, “the

only inadmissible evidence was the police officer’s request

that [respondent] calculate the date of his sixth birthday.”

In light of the other evidence of respondent's guilt, the

dissenting judge would have found the “sixth birthday”

evidence insufficiently prejudicial to require reversal of the

conviction. Pet. App. B20.

The Pennsylvania Supreme Court denied the Com-

monwealth’s application for review. Pet. App. Al-A2.

6

SUMMARY OF ARGUMENT

The videotape of respondent’s activities at the Booking

Center was admissible because it was not the product of

custodial interrogation. Much of what respondent said and

did at the Booking Center was not in response to question-

ing at all. Moreover, his statements and actions were ad-

mitted for the purpose of showing his condition at the time,

not to exploit any admissions concerning his crime. There

is no question that police officers could testify, based on

observations made during the booking process, that the

defendant was confused and that his speech in response to

routine processing questions was slurred. Since a videotape

merely provides better evidence for the trier of fact to deter-

mine whether the defendant’s manner of functioning in-

dicates that he was drunk, there is no reason to withhold

it from the trier of fact.

1. Statements made by criminal suspects during custodial

interrogation may not be introduced unless the suspecbhave

been advised of and have waived their right to remain silent

and their right to the presence of counsel at the inter-

rogation. Miranda v. Arizona, 384 U.S. 436, 444 (1966).

That principle, however, does not bar the police from ask-—

ing routine processing questions while booking a suspect

and using the suspect’s answers against him if the answers

turn Out to be incriminating. The booking process is far

removed from the kind of custodial interrogation that the

Court was concerned with in Miranda. Booking is an ad-

ministrative process, not part of the investigation of crime.

lt is essential for the police to obtain basic identification

information about the suspect they are taking into custody.

Booking is not designed to elicit incriminating admissions,

and it is normally brief and non-coercive in nature. Because

none of the concerns that underlay the Court's decision in

Miranda are presented in the booking process, the exclu-

7

sionary rule of Miranda should not be extended to that

setting.

2. The question about the date of respondent’s sixth

birthday was asked during booking, but it was not a routine

booking question. Instead, it was a sobriety test. The pur-

pose of the question was not to elicit information or an ad-

mission, but to determine whether respondent could per-

form a simple arithmetic calculation. Because the question

was not designed to elicit a testimonial response, it did not

constitute custodial interrogation within the meaning of

Miranda. For that reason, the trial court properly admitted

the portion of the videotape showing that respondent was

unable to calculate the date of his sixth birthday.

3. The Fifth Amendmeat does not prohibit the police

from compelling suspects to produce demonstrative

evidence, such as a blood sample or a voice exemplar. Ac-

cordingly, the police did not err by administering the sobrie-

ty tests at the Booking Center and asking respondent to take

the breath test without advising him of his right to remain

silent and his right to counsel, and obtaining a waiver of

those rights. Indeed, the court below acknowledged that no

Miranda warnings were required before the police sought

to determine whether respondent's performance was im-

paired. Pet. App. B10.

4. The same analysis applies to the statements respond-

ent made while taking the sobriety tests and refusing to take

the breath test. The fact that the audio portion of the

videotape contains statements made by respondent does not

make the evidence testimonial. This Court has held that a

defendant may be compelled to utter the words a robber

spoke and produce a voice exemplar. United States v. Wade,

388 U.S. 218 (1967); United States v. Dionisio, 410 U.S.

1 (1973). Those statements were demonstrative evidence

rather than testimonial evidence: they were not admitted

to prove the truth of any assertion that they contained, but

simply to show from the way the statements were made that

respondent appeared to be drunk. It does not matter that,

in addition to showing respondent's manner of speaking,

the questions he asked indicated that he was confused.

Although his confusion helped communicate the fact that

he was drunk, so did the blood alcohol test that was upheld

in Schmerber v. California, supra. What matters is that

respondent was not asked to “speak his guilt.” Wade, 388

U.S. at 223.

THE VIDEOTAPE OF RESPONDENT'S CONDUCT AT THE

BOOKING CENTER, INCI UDING THE AUDIO PORTION,

WAS PROPERLY ADMITTED INTO EVIDENCE

The Self-Incrimination Clause of the Fifth Amendment

provides that no person “shall be compelled in any criminal

case to be a witness against himself.” In Schmerber v.

California, 384 U.S. 757 (1966), this Court held that a per-

.on suspected of drunk driving was not compelled to be a

witness against himself when he was required to submit to

a blood alcohol test ard the results of that test were in-

troduced at trial. The Court explained that the privilege

against compelled self-incrimination “protects an accused

only from being compelled to testify against himself, or

otherwise provide the State with evidence of a testimonial

or communicative nature.” /d. at 761. Compulsion that

makes a suspect the source of “real or physical evidence”

does not violate the Fifth Amendment, the Court noted.

Id. at 764. Because a blood test does not require the suspect

to make any testimonial admission, the Court held that the

result of a blood test constitutes demonstrative evidence

rather than testimonial evidence and is therefore admissi-

ble even if the blood test was conducted without the suspect's

consent. /d. at 765.

In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the

Court held that “the prosecution may not use statements

9

* * * stemming from custodial interrogation of the defend-

ant unless i demonstrates the use of procedural safeguards

effective to secure the privilege against self-incrimination.”

The Court subsequently defined “interrogation” to mean

“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 in-

criminating response from the suspect.” Rhode Island v.

Innis, 446 U.S. 291, 301 (1980).

The decisions in Schmerber and Miranda have guided the

lower courts in resolving questions arising from the

videotaping of drunk driving suspects, which has become

a common practice in recent years.’ Videotapes permit the

trier of fact to see and hear the best evidence relating to

the crucial fact at issue in a drunk driving case: whether

the defendant was impaired by alcohol at the time of his

arrest. Note, Self-Incrimination Issues in the Context of

Videotaping Drunk Drivers: Focusing on the Fifth Amend-

ment, 10 Harv. !.L. & Pub. Pol'y 631, 632 (1987). While

it is ordinarily the prosecutor who secks to use the

videotape,‘ that is not always the case. According to

’ “Federal grants to local police agencies under the Safe Streets Act

have enabled many loval police departments to purchase videotape

equipment.” | R. Erwin, M. Minzer, L. Gredberg & H. Goldstein,

Defense of Drunk Driving Cases § 9.02, at 9-3 (3d ed. 1989). Booking

tacthties that videotape drunk driving suspects “usually include a room

designated for that purpose with appropriate white lines drawn both

on the floor and vertically on the walls so that the balance, sway, etc

of the suspect can readily be observed.” /bid

* In many cases, videotape evidence convinces defendants to plead

guilty. One town found that over a 12-month period $6 out of 57 de-

fendants “decided to plead guilty to the charge rather than face thew

movie debut mm court.” Foote, supra, 10 Harv. JL. & Pub. Pol'y at 637

Such evidence may also have a rchabiluative valuc, as some drivers sec,

“perhaps tor the first tome, how they actually look and function whole

10

some defense attorneys, a defendant “will often find that

a tape recording is advantageous to his case, rather than

detrimental.” 1 R. Erwin, M. Minzer, L. Greenberg & H.

Goldstein, Defense of Drunk Driving Cases § 9.02, at 9-5

(3d ed. 1989). Those attorneys contend that police officers

who testify at trial tend to exaggerate the degree of a de-

fendant’s impairment, and that a videotape will often show,

for example, that the defendant's speech was not thick or

slurred. /bid.

A recent review of cases involving challenges to the ad-

mussibility of videotapes of drunk driving suspects concluded

that “[a}ll [of] the states that have addressed the question

since Schmerber * * * now appear to agree: The visual com-

ponent of drunk driving tapes, at least, is mot testimonial

and hence does not violate the defendant's privilege against

self-incrimination.” Note, supra, 10 Harv. J.L. & Pub. Pol'y

at 645-646; see, e.g., Delgado v. State, 691 S.W .2d 722, 723

(Tex. Crim. App. 1985); State v. Roadifer, 346 N.W 2d 438,

440-441 (S_D. 1984); Palmer v. State, 604 P 2d 1106, 1109

(Alaska 1979). Some state courts, however, have suppressed

the audio portion of videotapes, at least in part. In Roadifer,

for example, the court held that the audio portion of a tape

could be played to show the manner of a defendant's speech.

But the court added that any admissions the defendant

might have made should be redacted from the tape. 346

N.W_2d at 441.’

incbriated.” rather than how they “wnagme they handle themscives whale

wader the influence of liquor.” Jd. at 638

’ See also Thompson v. People, 181 Colo. 194, 202, $10 Pld Hi,

315 (1973) (hehe sound on the film had been ordered suppressed by

the Court because at revealed that defendant invoked his Fifth Amend-

ment right to remain silent”); State v. Strickland, 276 N.C. 253, 262,

173 S Edd 129, 135 (1970) (when the sound motion picture contams

incrmMenating statements by the defendant * ° * the judge must conduct

a voer dere to devermune the admussibility of the in custody satements”).

The court that has gone the farthest in foreclosing the

use of videotaped evidence in drunk driving cases is the

Superior Court of Pennsylvania. See 1 R. Erwin, M. Minzer,

L. Greeberg & H. Goldstein, supra, § 9.03, at 9-18. In prior

cases, that court has suppressed the audio portion of

videotapes altogether when defendants have invoked their

constitutional rights, Commonwealth v. Conway, 368 Pa.

Super. 488, 534 A.2d 541 (1987), allocatur denied, 520 Pa.

581, 549 A.2d 914 (1988), and it has refused to admit

evidence of the suspect’s inability to recite the alphabet

unless the suspect was previously advised of his Miranda

rights and validly waived those rights. Commonwealth v.

Bruder, 365 Pa. Super. 106, 114, 528 A.2d 1385, 1388

(1987), allocatur denied, 518 Pa. 635, 542 A.2d 1365, rev'd,

109 S. Ct. 205 (1988). In this case, the court held that

statements made by the suspect while being booked, while

taking sobriety tests, and while discussing with law enforce-

ment officials whether he would submit to a breathalyzer

test could not be admitted at trial absent Miranda warn-

ings and a waiver of rights under Miranda.

The Pennsylvania court has misapplied Miranda and this

Court’s Fifth Amendment precedents. In this case, the police

did not at any point during the proceedings at the Booking

Center compel respondent to be a witness against himself

or violate respondent’s rights under Miranda. According-

ly, there is no reason to suppress any portion of the

videotape of those proceedings.°®

* Respondent was not in custody (nor was he compelled to make any

statements) while he performed the field sobriety tests on the side of

the road. See Pennsylvania v. Bruder, 109 S. Ct. 205, 207 (1988);

Berkemer v. McCarty, 468 U.S. 420, 442 (1984). Since Miranda requires

that the police advise suspects of their constitutional rights only in cir-

cumstances of custodial interrogation, the officer who stopped respond-

ent was not required to warn respondent before questioning him and

asking him to perform the sobriety tests. Therefore, the testimony

relating to the results of the field tests and the statements respondent

12

1. The Booking Questions. The police did not err by

booking respondent without advising him of his constitu-

tional rights. Although booking consists of questioning that

occurs while the suspect is in custody, it does not constitute

“custodial interrogation” as that term was used by this Court

in Miranda. The Miranda Court was concerned with police

interrogation that was often intensive and lengthy, and that

was designed to elicit admissions of guilt. 384 U.S. at 481.

The booking process is neither coercive nor lengthy, nor

is it part of the investigative effort. Instead, it is a form

of administrative processing that consists mainly of obtain-

ing information “required immediately to enable the police

to book and arraign the suspect and to permit the magistrate

to determine the amount of bail to be fixed and whether

persons claiming to be relatives should be allowed to con-

fer with the suspect.” United States ex rel. Hines v. LaVallee,

§21 F.2d 1109, 1112 (2d Cir. 1975), cert. denied, 423 U.S.

1090 (1976).

In Rhode Island v. Innis, 446 U.S. 291 (1980), the Court

indicated that the police are not required to advise suspects

of their Miranda rights before asking them routine book-

ing questions. In that case, the Court defined “interroga-

tion” to exclude inquiries that are “normally attendant to

arrest and custody.” 446 U.S. at 301. See also South Dakota

v. Neville, 459 U.S. 553, 564 n.15 (1983). In the wake of

Innis, the courts of appeals have held that Miranda warn-

ings are ordinarily not required before police ask routine

booking questions. See, e.g., United Siates v. Horton, 873

F.2d 180, 181 n.2 (8th Cir. 1989) (“[i}t is well established

that Miranda does not apply to biographical data necessary

to complete booking or pretrial services”; collecting cases);

Gladden vy. Roach, 864 F.2d 1196, 1198 (Sth Cir.)

made while taking them, including his admission that he was too in-

ebriated to perform the tests satisfactorily, was properly admitted into

evidence.

13

(“biographical questions, which are part of the booking

routine and are not intended to elicit damaging statements,

are not interrogation for Fifth Amendment purposes”), cert.

denied, 109 S. Ct. 3192 (1989); United States v. Gotchis,

803 F.2d 74, 79 (2d Cir. 1986) (“[rjoutine questions about

a suspect’s identity and marital status, ordinarily innocent

of any investigative purpose, do not pose the dangers Miran-

da was designed to check”); United States v. Taylor, 799

F.2d 126, 128 (4th Cir. 1986) (officers’ questions about

suspect’s identity not barred by Miranda even though suspect

had already invoked his right to counsel), cert. denied, 479

U.S. 1093 (1987); Robinson v. Percy, 738 F.2d 214, 219 (7th

Cir. 1984) (“Miranda does not apply when officers ask a

suspect routine processing questions.”); United States v.

Avery, 717 F.2d 1020, 1024-1025 (6th Cir. 1983), cert.

denied, 466 U.S. 905 (1984); United States v. Glen-Archila,

677 F.2d 809, 815-816 (11th Cir.), cert. denied, 459 U.S.

874 (1982); United States v. Booth, 669 F.2d 1231, 1238

(9h Cir. 1981); see generally | W. LaFave & J. Israel,

Criminal Procedure § 6.7(b), at 504-505 (1984).

Recognizing a “booking exception” to Miranda does not

mean, of course, that any question asked during the book-

ing 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. In this case, for example

once respondent was in custody the police could not ask

him whether he had been drinking, unless he waived his right

to remain silent. But respondent was not subjected to

custodial interrogation of the sort that must be preceded

by a waiver of his Miranda rights when he was asked his

name, address, height, weight, eye color, date of birth, and

14

current age. Therefore, it was not error to admit evidence

of respondent’s answers.’

2. The “Sixth Birthday” Question. Asking respondent

to calculate the date of his sixth birthday was not a routine

booking question, but neither was it a question intended

to elicit a testimonial response. Instead, it was a sobriety

test designed to determine if respondent could perform sim-

ple arithmetic, just as the other sobriety tests were designed

to determine if he could perform simple physical functions.

In that respect, the “sixth birthday” question was like ask-

ing a suspect to count to 30 or to recite the alphabet, a com-

monly used field sobriety test. Because the police had no

investigative interest in the date on which respondent turned

six, but sought only to test how respondent was function-

ing at the time of his arrest, the “sixth birthday” question

did not constitute custodial interrogation as this Court used

that term in Miranda.

The fact that respondent was asked to make a verbal

response to the “sixth birthday” question did not make that

evidence testimonial. In United States v. Wade, 388 U.S.

218 (1967), the Court held that a suspect could be compelled

to speak while in a line-up. The Court explained that “com-

pelling Wade to speak within hearing distance of the

witnesses, even to utter the words purportedly uttered by

the robber, was not compulsion to utter statements of a

’ Even if the Court concludes that routine booking questions con-

stitute custodial interrogation and are therefore governed by Miranda,

respondent's answers to those questions are nonetheless admissible in

this case. Respondent's answers to the booking questions were offered

into evidence not for their contents, but simply to demonstrate respon-

dent's condition when he was being booked. For the reasons given in

more detail in point 2, Miranda and the Fifth Amendment do not

foreclose the admission of evidence that is offered for purposes other

than “for the testimonial or communicative content of what was * * *

said.” United States v. Dionisio, 410 U.S. 1, 7 (1973).

15

‘testimonial’ nature; he was required to use his voice as an

identifying physical characteristic, not to speak his guilt.”

Id. at 222-223. See also United States v. Dionisio, 410 U.S.

1, 7 (1973) (rejecting the contention that the compelled pro-

duction of a voice exemplar violates the Fifth Amendment);

Gilbert v. California, 388 U.S. 263, 266 (1967) (compelled

production of handwriting exemplar does not violate Fifth

Amendment).

Like Wade, respondent was not asked to speak his guilt.

The “sixth birthday” question was designed to produce a

demonstration of respondent’s degree of impairment, not

to elicit an incriminating, testimonial response. Because the

question did not call for an answer that could be in-

criminating due to its testimonial contents, the Fifth Amend-

mt would not have prevented the Commonwealth from

compelling respondent to respond to the question and using

his failure to answer it against him at trial. See Fisher v.

United States, 425 U.S. 391, 408 (1976) (Fifth Amendment

“applies only when the accused is compelled to make a

testimonial communication that is incriminating”). And

because the Fifth Amendment would not prohibit the

government from compelling respondent to answer the ques-

tion, Miranda, which is designed to protect the suspect’s

Fifth Amendment rights, would nct prohibit the govern-

ment from asking that question in the course of custodial

interrogation.

* This Court's decision in Estelle v. Smith, 451 U.S. 454 (1981), pro-

vides a useful illustration of the difference between the use of verbui

evidence for testimonial and demonstrative purposes. In Smith, the

Court held that the State could not introduce evidence regarding the

defendant's dangerousness where that evidence was based on a custodial

psychiatric interview with the defendant that was not preceded by

Miranda warnings. 451 U.S. at 461-469. The Court explained that the

psychiatrist's testimony was inadmissible because his conclusions were

not based simply on observations of the defendant, but were drawn

16

The Superior Court found that respondent’s confused

reaction to the “sixth birthday” question, like various

statements he made while he was at the Booking Center,

was testimonial because it “reveal{ed} his thought processes.”

Pet. App. B15; see id. at B14. The court relied particularly

on its prior decision in Commonwealth v. Conway, supra,

which noted that “confusion is arguably a sign of intoxica-

ion,” and held that a defendant cannot be “forced to in-

criminate himself by ‘communicating’ his confusion while

performing [sobriety] tests.” 368 Pa. Super. at 498-499, 534

A.2d at 546.° But the fact that a suspect's confused thought

processes communicate that he is drunk does not make his

statements testimonial evidence. A statement or conduct is

not “testimonial” simply because it can be said to reveal

something about the workings of a person’s mind. Slurred

speech and the inability to walk a straight line or to read

a few simple words all reveal something about the sus-

largely from the defendant's account of the crime during his interview,

including the statements he made and the remarks he omutied in reciting

the details of the crime. Jd. at 464. The Fifth Amendment privilege —

and thus the Miranda decision—were applicable, the Court held,

“because the State used as evidence against respondent the substance

of his disclosures during the pretrial psychiatric examination.” /d. at

465. The Court noted that the lowei court, which had reached the same

conclusion, had “doubted the applicability of the Fifth Amendment”

if the psychiatrist’s diagnosis “had been founded only on respondent's

mannerisms, facial expressions, attention span, or speech patterns.” /d.

at 464 n.8, citing Smith v. Estelle, 602 F.2d 694, 704 (Sth Cir. 1979).

* In Commonwealth v. Thompson, 377 Pa. Super. $98, 547 A.2d

1223 (1988), the court went beyond the decision here and suppressed

a videotape of a sobriety test that showed that “the subject was obscene

and uncooperative.” 377 Pa. Super. at 606, $47 A.2d at 1227. Relying,

like the court below, on Conwey, the court reasoned that “obscenity

and belligerence are just as indicative of an individual's thought proc-

esses as is confusion,” and concluded that the tape was testimonial

evidence for that reason. /bid.

17

pect’s mental processes, but none of those demonstrations

can be said to be testimonial. In order to be testimonial,

“an accused’s communication must itself, explicitly or im-

plicitly, relate a factual assertion or disclose information.”

Doe v. United States, 108 S. Ct. 2341, 2347 (1988). Respond-

ent’s inability to answer the “sixth birthday” question did

not relate a factual assertion or disclose information to the

> eeilaestaee mein therefore admissible at

trial.

3. The Sobriety Tests. lt is clear that the officers at the

Booking Center were not required to advise respondent of

his Miranda rights and obtain a waiver of those rights before

administering sobriety tests and asking respondent to take

a breath test. A breath test is indistinguishable from a blood

test for Fifth Amendment purposes. It is no more com-

municative or testimonial than the blood test involved in

Schmerber, if anything, it is a less intrusive method of ob-

taining evidence. Because taking a breath tes does not im-

plicate the Self-Incrimination Clause, this Court has noted

that a police inquiry wheth sr the suspect will take such a

test “Is not an interrogation within the meaning of Miran-

da.” South Dakota v. Neville, 459 U.S. at 564 n.15.

For the same reason, the court below recognized that “no

Miranda warnings were required” before respondent was

asked to perform the sobriety tests. Pet. App. BIO. As the

'* Of course, respondent's conduct cannot be deemed “testimonial”

on the ground that it “disclose{d]” the “information” that he was con-

fused. Schmerber's blood test “disclosed” the information that he was

legally drunk, Gilbert's handwriting exempla~ “disclosed” that he had

distinctive handwriting, and Dionisio’s voice exemplar “disclosed” that

he had a distinctive voice, but none was deemed testimonial. The “in-

formation” in each of those cases, as in this one, was an inference drawn

by the finder of fact from demonstrative evidence, similar to the in-

ference that would be drawn from a videotape showing the suspect stag-

gering around the police station.

court explained, “[rjequiring a driver to perform physical

tests or to take a breath analysis test does not violate the

privilege against self-incrimination because the evidence pro-

cured is of a physical nature rather than testimonial.” /d.

at B9 (quoting Commonwealth v. Benson, 280 Pa. Super.

20, 29, 421 A.2d 383, 387 (1980)). That is because “(field

sobriety tests * * * are not intended to reveal any thoughts

» or knowledge of the subject. * * * They only require him

to exhibit his physical coordination, or lack thereof.” Com-

monwealth v. Brennan, 386 Mass. 772, 779, 438 N.E.2d 60,

65 (1982)."'

Nor does it matter that, to perform the sobriety tests,

respondent had to cooperate with the police to some degree.

in Schmerber, the Court noted that the lower courts had

long held that suspects may be compelled “to assume a

stance, to walk, or to make a particular gesture,” 384 U.S.

at 764, all of which require cooperation. This Court has

held that suspects may be required to produce voice ex-

emplars, United States v. Dionisio, 410 U.S. .t 7, and hand-

writing exemplars, Gilbert v. California, 388 U.S. 263, 266

(1967). Both of those procedures require more cooperation

than exhaling into a device that tests the blood alcohol level

from the breath, and roughly the same degree of coopera-

tion as the other sobriety tests that respondent performed.

The Commonwealth could, therefore, have compelled

respondent to take the breath test or the other sobriety tests

without obtaining a waiver of his Miranda rights; so, too,

the Commonwealth could properly offer into evidence the

results of those tests or the fact that respondent refused to

'' Nor us there any difference, under the Fifth Amendment, between

being asked to count to 30 while standing on one leg and performing

sobriety tests ike the horizontal gaze nystagmus test and the walk and

turn test, which do not require the defendant to speak As we have noted

above, the fact that a defendamt must speak does not make evidence

testeomomal

19

take them. See South Dakota v. Neville, 459 U.S. a

563-564. If the results of the tests are admissible, there is

no reason why the trier of fact should not be permitted to

view a videotape of the defendant performing the tests and

judge for itself whether the defendant appeared to be drunk.

4. The Statements Made During the Sobriety Tests.

Finally, the statements respondent made while taking the

sobriety tests ard while being told about the provisions of

Pennsylvania law should be admitted for two independent

reasons. First, the »dministration of sobriety tests and the

description of state law are noi procedures “reasonably likely

to elicit an incriminating response.” Rhode isiand v. Innis,

446 US. at 301; see also South Dakota v. Neville, 459 U.S.

at 564 n.15. Although a suspect may volunteer something

incriminating while performing the sobriety tests or being

told about the law, nothing in either procedure is designed

or likely to provoke such a response. The statements respond-

emt made during the sobriety tests and the explaration of

the implied consent law were thus not the products of

custodial interrogation. Palmer v. State, 604 P.2d at 1109.

In this respect, he lower court was clearly in error. It

failed to recognize that, for a statement to be within Miran-

da’s reach, it must be the product of questioning. Aside from

the routine booking questions and the question regarding

respondent’s sixth birthday, discussed above, respondent

was not questioned during the administration of the sobriety

tests or the explanation of the requirements of Pennsylvania

law.'? It was respondent who volunteered information and

'' The question whether respondent undersiood Pennsylvania law

obviously did not constitute “custodial interrogation” for purposes of

Miranda, since the que-tion was asked simply to ensure that th2 terms

of the law had been adequately explained to respondent, not to obtain

an incriminating admission from him. See South Dakota y Neville,

459 U.S. at $55 0.2, $64 0.15; United States v. Lmery, 682 ¥ 2d 493,

SOL (Sth Cir), cert. demed, 499 U.S. 1044 (1982)

20

asked questions that he subsequently sought to exclude from

evidence. Miranda simply does not reach such volunteered

statements that are not the product of custodial police

interrogation.

In any event, none of respondent's videotaped statements

consisted of incriminating admissions.'’ The videotape was

entered into evidence not to prove the truth of anything

respondent said, either during booking or later, but because

respondent's speech patterns and his difficulty in respond-

ing to the questions showed that he was drunk. The court

below recognized that fact, as it concluded that respondent's

videotaped responses were prejudicial in part because they

“led the finder of fact to infer that [respondent's] * * *

failure to speak clearly indicated a state of drunkenness that

prohibited him from safely operating his vehicle.” Pet. App.

B17-B18. The fact that it did not matter what respondent

said, but how he saic it, proves that the audio_portion of

the tape is demonstrative evidence, not testimonial evidence.

There is no doubt that the police officers who booked

respondent and administered the tests could testify that his

manner of speech indicated that he was drunk. Because the

videotape was offered for precisely the same reason, it

should be equally admissible. If the police officers may

testify about their observations of respondent's condition,

as they surely may, the trier of fact should be allowed to

see and hear a videotape of the suspect's actual performance

at the time and reach its own conchsion as to his

condition.'* The Superior Court therefore should not have

ordered that evidence excluded.

'' While he was on the side of the road, respondent told the police

offieer that he was too drunk to perform the field sobriety tests. Pet.

App B4 On the videotape, however, respondent “gave ro incriminating

viatement.” Jd. at C6.

'* In a case such as this, where the defendan, speaks English as a

second language. detense counsel meht wel contend that the booking

21

CONCLUSION

The judgment of the Superior Court of Pennsylvania

should be reversed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. Dennis, Je

Assistant Attorney General

WitttiamM C. BRYSON

Deputy Solicitor General

CrrisTrorner J. Waicut

Assistant to the Solicitor General

NOVEMBER 1989

officer misinterpreted the defendant's difficulty speaking and com.

prehending English for evidence that he was drunk A tner of fact would

best be able to resolve such a dispute by watching and listening to the

videotape of the booking and testing procedures

US GOVERNMENT PRINTING OF FICE (e808 262 JOHOOE2e