# Baltimore City Department of Social Services v. Bouknight

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## Dissenting Opinion

    Marshall
United States Supreme Court
493 U.S. 549
Baltimore City Department of Social Services v. Bouknight
No. Nos 88-1182, 88-6651 Argued: Nov. 7, 1989. --- Decided: Feb 20, 1990
Syllabus
Based on evidence that respondent Bouknight had abused petitioner Maurice M., her infant son, petitioner Baltimore City Department of Social Services (BCDSS) secured a juvenile court order removing Maurice from Bouknight's control. That order was subsequently modified to return custody to Bouknight pursuant to extensive conditions and subject to further court order. After Bouknight violated the order's conditions, the court granted BCDSS' petition to remove Maurice from her control and held her in civil contempt when she failed to produce the child as ordered. Rejecting her subsequent claim that the contempt order violated the Fifth Amendment's guarantee against self-incrimination, the court stated that the contempt would be purged by the production of Maurice and was issued not because Bouknight refused to testify but because she failed to obey the production order. In vacating the juvenile court's judgment upholding the contempt order, the State Court of Appeals found that that order unconstitutionally compelled Bouknight to admit through the act of production a measure of continuing control over Maurice in circumstances in which she had a reasonable apprehension that she would be prosecuted.
Held: A mother who is the custodian of her child pursuant to a court order may not invoke the Fifth Amendment privilege against self-incrimination to resist a subsequent court order to produce the child. Pp. 554-562.
(a) Although the privilege applies only when an accused is compelled to make an incriminating testimonial communication, the fact that Bouknight could comply with the order through the unadorned act of producing Maurice does not necessarily deprive her of the privilege, because the act of complying may testify to the existence, possession, or authenticity of the thing produced. See, e.g., United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552. Pp. 554-555.
(b) Even assuming that the act of production would amount to a communication regarding Bouknight's control over, and possession of, Maurice that is sufficiently incriminating and testimonial in character, she may not invoke the privilege to resist the production order in the present circumstances. The ability to invoke the privilege is greatly diminished when invocation would interfere with the effective operation of a generally applicable regulatory regime constructed to effect the State's public purposes unrelated to the enforcement of its criminal laws, see, e.g., California v. Byers, 402 U.S. 424, 430, 91 S.Ct. 1535, 1539, 29 L.Ed.2d 9, and when a person assumes control over items that are the legitimate object of the government's noncriminal regulatory powers, cf. Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787. Here, Maurice's care and safety became the particular object of the State's regulatory interest once the juvenile court adjudicated him a child in need of assistance. Moreover, by taking responsibility for such care subject to the custodial order's conditions, Bouknight submitted to the regulatory system's routine operation, agreed to hold Maurice in a manner consonant with the State's interests, and accepted the incident obligation to permit inspection. Furthermore, the State imposes that obligation as part of a broadly directed, noncriminal regulatory regime governing children cared for pursuant to custodial orders. Persons who care for such children are not a selective group inherently suspect of criminal activities. Similarly, the efforts of BCDSS and the judiciary to gain access to the children focus primarily on the children's well-being rather than on criminal conduct, and are enforced through measures unrelated to criminal law enforcement. Finally, production in the vast majority of cases will embody no incriminating testimony. Pp. 561-562.
(c) The custodial role that limits Bouknight's ability to resist the production order may give rise to corresponding limitations upon the State's ability to use the testimonial aspects of her act of production directly or indirectly in any subsequent criminal proceedings. See, e.g., Braswell v. United States, 487 U.S. 99, 118, and n. 11, 108 S.Ct. 2284, 2295, and n. 11, 101 L.Ed.2d 98. Pp. 561-562.
314 Md. 391, 550 A.2d 1135 (1988), reversed and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 563.
Ralph S. Tyler, III, Baltimore, Md., for petitioner, Baltimore City Dept. of Social Services.
Mitchell Y. Mirviss, Baltimore, Md., for petitioner, Maurice M.
George E. Burns, Jr., Baltimore, Md., for respondent, Bouknight.
Justice O'CONNOR delivered the opinion of the Court.

## Notes

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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