# Pennsylvania v. Muniz/Concurrence Marshall

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Marshall
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 n. 1, infra, that question constituted custodial interrogation. Because the police did not apprise Muniz of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before asking the question, his response should have been suppressed.
I disagree, however, with Justice BRENNAN's recognition in Part III-C of a "routine booking question" exception to Miranda. Moreover, even were such an exception 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 Commonwealth's Implied Consent Law, were reasonably likely to elicit an incriminating response, and therefore constituted the "functional equivalent" of express questioning. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (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.
* A.
Justice BRENNAN would create yet another exception to Miranda: the "routine booking question" exception. See also Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (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 § fundamental principle that the doctrine should be clear so that it can be easily applied by both police and courts. See Miranda, supra, 384 U.S., at 441-442, 86 S.Ct., at 1610-1611; Fare v. Michael C., 442 U.S. 707, 718, 99 S.Ct. 2560, 2568, 61 L.Ed.2d 197 (1979); Perkins, supra, 495 U.S., at 308-309, 110 S.Ct., at 2403 (MARSHALL, J., dissenting). Justice BRENNAN'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.
Justice BRENNAN nonetheless asserts that Miranda does not apply to express questioning designed to secure " ' "biographical data necessary to complete booking or pretrial services," ' " ante, at 601 (citation omitted), so long as the questioning is not " 'designed to elicit incriminatory admissions,' " ante, at 602, n. 14 (quoting Brief for United States as Amicus Curiae 13; citing United States v. Avery, 717 F.2d 1020, 1024-1025 (CA6 1983) (acknowledging that "[e]ven a relatively innocuous series of questions may, in light of the factual circumstances and the susceptibility of a particular suspect, be reasonably likely to elicit an incriminating response"); United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (CA9 1983) (holding that routine booking question exception does not apply if "the questions are reasonably likely to elicit an incriminating response in a particular situation"); United States v. Glen-Archila, 677 F.2d 809, 816, n. 18 (CA11 1982) ("Even questions that usually are routine must be proceeded [sic] by Miranda warnings if they are intended to produce answers that are incriminating")). Even if a routine booking question exception to Miranda were warranted, that exception should not extend to any booking question that the police should know is reasonably likely to elicit an incriminating response, cf. Innis, 446 U.S., at 301, 100 S.Ct., at 1690, 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, 100 S.Ct., at 1690, 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, 100 S.Ct., at 1690, n. 8 ("Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect"). Indeed, as the Court acknowledges, Muniz did in fact "stumbl[e] over his address and age," ante, at 586; more specifically, he was unable to give his address without looking at his license and initially told police the wrong age. Moreover, the very fact that, after a suspect has been arrested for driving under the influence, the Pennsylvania police regularly videotape the subsequent questioning strongly implies a purpose to the interrogation other than "recordkeeping." The seven questions in this case, then, do not fall within the routine booking question exception even under Justice BRENNAN's standard. C
Although Justice BRENNAN does not address this issue, the booking questions sought "testimonial" responses for the same reason the sixth birthday question did: because the content of the answers would indicate Muniz's state of mind. Ante, at 598-599, and n. 12. See also Estelle v. Smith, 451 U.S. 454, 464-465, 101 S.Ct. 1866, 1873-1874, 68 L.Ed.2d 359 (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.
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, 446 U.S., at 301, 100 S.Ct., at 1689-1690. As the Court recounts, ante, at 602-604, 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 Commonwealth's Implied Consent Law, and asked several times if Muniz understood the Law and wanted to take the examination. Ante, at 604. 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, 100 S.Ct., at 1690. 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, 100 S.Ct., at 1690, n. 8; supra, at 610-611. See also Arizona v. Mauro, 481 U.S. 520, 531, 107 S.Ct. 1931, 1937, 95 L.Ed.2d 458 (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. Muniz's statements were thus the product of custodial interrogation and should have been suppressed because Muniz was not first given the Miranda warnings.
The Court concedes that Officer Hosterman's directions that Muniz count aloud to 9 while performing the "walk and turn" test and to 30 while performing the "one-leg-stand" test constituted custodial interrogation. Ante, at 603, and n. 17. Also indisputable is the testimonial nature of the responses sought by those directions; the content of Muniz's counting, just like his answers to the sixth birthday and the booking questions, would provide the basis for an inference regarding his state of mind. Cf. ante, at 599; supra, at 612. The Court finds the admission at trial of Muniz's responses permissible, however, because they were not incriminating "except to the extent [they] exhibited a tendency to slur words, which [the Court already found to be] nontestimonial [evidence]." Ante, at 603, 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 and turn test, supporting the inference that he was unable to do so. 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, 100 S.Ct., at 1690, n. 5. See also Miranda, 384 U.S., at 476-477, 86 S.Ct., at 1629 ("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.
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.

## Notes

* ↑ 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, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). Furthermore, that question would not fall within Justice BRENNAN's proposed routine booking question exception. The question serves no apparent recordkeeping need, as the 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 610-611.
* ↑ An additional factor strongly suggests that the police expected Muniz to make incriminating statements. Pursuant to their routine in such cases, App. 28-29, the police allotted 20 minutes for the three sobriety tests and for "observation." Because Muniz finished the tests in approximately 6 minutes, the police required him to wait another 14 minutes before they asked him to submit to the breathalyzer examination. Given the absence of any apparent technical or administrative reason for the delay and the stated purpose of "observing" Muniz, the delay appears to have been designed in part to give Muniz the opportunity to make incriminating statements.
* ↑ The Commonwealth could not use Muniz's failure to count against him regardless of whether his silence during the walk and turn test was itself testimonial in those circumstances. Cf. ante, at 603, n. 17. A defendant's silence in response to police questioning is not admissible at trial even if the silence is not, in the particular circumstances, a form of communicative conduct. Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S.Ct. 1602, 1624, n. 37, 16 L.Ed.2d 694 (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, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965) ("[T]he Fifth Amendment . . . forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt").
* ↑ I continue to have serious reservations about the Court's limitation of the Fifth Amendment privilege to "testimonial" evidence. See United States v. Mara, 410 U.S. 19, 32-38, 93 S.Ct. 774, 781-784, 35 L.Ed.2d 99 (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, 93 S.Ct., at 782-783. At the very least, the privilege includes evidence that can be obtained only through the person's affirmative cooperation. Id., at 36-37, 93 S.Ct., at 783-784. Of course, a person's refusal to incriminate himself also cannot be used against him. See n. 3, supra. Muniz's performance of the sobriety tests and his refusal to take the breathalyzer examination are thus protected by the Fifth Amendment under this interpretation. But cf. ante, at 604-605, n. 19. Because Muniz does not challenge the admission of the video portion of the videotape showing the sobriety tests or of his refusal to take the breathalyzer examination, however, those issues are not before this Court.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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