-465 (1981). 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.

In South Dakota v. Neville, 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. Footnote 11 a "witness against himself," cf. 384 . Stat. . In subsequent questioning, he admitted to being under the influence of alcohol. 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.

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.'"

.

Footnote 9

 

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. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. See also Illinois v. Perkins, ante, p. 292 (creating exception to Miranda for custodial interrogation by an undercover police officer posing as the suspect's fellow prison inmate). 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. I believe that privilege extends to any evidence that a person is compelled to furnish against himself. 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.

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. 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).

U.S. 582, 587].

] 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.

In such a case, the questions serve the same purpose as the field sobriety tests, and the answers are not testimonial.

The Supreme Court held that the Fifth Amendment distinguishes between real or physical evidence and testimonial evidence, of which only testimonial evidence is protected under the Amendment. U.S. 225, 233

[496 Super., at 386, 547 A. was neither [the suspect's] testimony nor evidence relating to some communicative act"). (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. ] The sixth birthday question also clearly constituted custodial interrogation because it was a form of "express questioning."

[ Id., at 222; see id., at 222-223 (suspect was "required to use his voice as an identifying physical characteristic"). . 384 Accordingly, we held that protection of the privilege against self-incrimination during pretrial questioning requires application of special "procedural safeguards." Muniz did not count at all during the walk and turn test, supporting the inference that he was unable to do so. [ 380 [496 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.'" 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

Since it was permissible for the police to extract and examine a sample of Schmerber's blood to determine how much that part of his system had been affected by alcohol, I see no reason why they may not examine the functioning of Muniz's mental processes for the same purpose. law school study materials, including 726 video lessons and 5,100+

(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"). Baltimore Dept. . . U.S. 757 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."

U.S. 463, 470

] Solicitor General Starr, Assistant Attorney General Dennis, Deputy Solicitor General Bryson, and Christopher J. Wright filed a brief for the United States as amicus curiae urging reversal. The operation could not be completed. The officer arrested Muniz and took him to a booking center, where he was told that his actions and voice were being recorded, but no one read him his Miranda rights.   When the officer inquired whether Muniz needed assistance, Muniz replied that he had stopped the car so he could urinate. In Gilbert v. California, App.

] As we explain infra, at 600-601, for purposes of custodial interrogation such a question may be either express, as in this case, or else implied through words or actions reasonably likely to elicit a response. We explained that requiring his presence and speech at a lineup reflected "compulsion of the accused to U.S. 245, 252 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. PENNSYLVANIA, Petitioner v. UNION GAS COMPANY. Innis, supra, at 302, n. 8. The absence of any administrative need for the question, moreover, suggests that the question was designed to obtain an incriminating response. Stay up-to-date with FindLaw's newsletter for legal professionals. 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. U.S., at 215 772, 438 N. E. 2d 60 (1982); State v. Badon, 401 So.2d 1178 (La.

Both the delivery and content of Muniz's answers were incriminating. (1980).

] 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." The state court held that the sixth birthday question constituted an unwarned interrogation for purposes of the privilege against self-incrimination, 377 Pa.   Id., at 461. Mr. Eakin, you may proceed. ).

As the state court found, "Muniz's videotaped responses .

  Footnote 17 487 Based on this analysis, the incriminating evidence drawn from physical evidence is admissible, but evidence drawn from the content of statements that relate factual information is not. I join Parts I, II, III-A, and IV of the Court's opinion. 388 For substantially the same reasons, Muniz's responses to the videotaped "booking" questions were not testimonial and do not warrant application of the privilege.

[496

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. 427 Innis, supra, at 301.

377 Pa.

2d, at 422. ] 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,'" The Superior Court of Pennsylvania reversed and held that the testimony regarding Muniz’s behavior and the results of the field sobriety tests was physical in nature, not testimonial, but that the audio portion of the recording should have been suppressed. [ Because the police did not read Muniz the Miranda warnings before he gave those responses, the responses should have been suppressed.