Com. v. Brennan

• Decision Date: 20 July 1982
• Parties: COMMONWEALTH v. Keven T. BRENNAN. COMMONWEALTH v. Floyd W. KNOCKEL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 60

438 N.E.2d 60

386 Mass. 772

COMMONWEALTH v. Keven T. BRENNAN.

COMMONWEALTH v. Floyd W. KNOCKEL.

Supreme Judicial Court of Massachusetts, Barnstable and Plymouth.

Argued April 5, 1982.

Decided July 20, 1982.

John E. Warren, Harwick (David S. Reid, Dennis Port, with him), for Kevin T. Brennan.

Kevin J. Reddington, Brockton, for Floyd W. Knockel.

Frederick V. Long & Robert M. Payton, Asst. Dist. Attys., for the Commonwealth.

Before HENNESSEY, C. J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

In these two companion cases we are asked to determine the applicability of the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Declaration of Rights of the Constitution of the Commonwealth, in circumstances involving the performance of breathalyzer and field sobriety tests administered for the purpose of determining whether a driver of a motor vehicle is under the influence of intoxicating liquors. We conclude that neither the Fourteenth Amendment nor art. 12 is violated by the administration of these tests.

The facts of these cases may be briefly stated. The defendant Brennan was arrested and charged with operating a motor vehicle under the influence of alcohol, speeding, and failure to operate within marked lanes. After being warned of his Miranda rights, he told the police officer, "I will not say anything or do anything until my lawyer is present." He was then taken to a police station, whereupon he was asked if he would agree to submit to a field sobriety test and a breathalyzer test. He was advised that a refusal to take the breathalyzer test would result in the automatic suspension of his driver's license for ninety days. See G.L. c. 90, § 24(1)(f ). ¹ Brennan agreed to and did take the breathalyzer and field sobriety tests. The field sobriety tests consisted of the so-called finger-to-nose test, picking up coins from the floor, and walking a straight line. Brennan was also asked certain questions relating to his alleged intoxication, and to some of these he gave incriminating answers.

Before trial, Brennan moved to suppress "any and all statements and evidence attributed to" himself. At the hearing on the motion to suppress, Brennan testified that the consequence of license suspension for failure to submit to a breathalyzer test induced him to take the test. A District Court judge allowed his motion to suppress on the theory that the case was governed by the principles established in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as recently applied in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 477, 68 L.Ed.2d 378 (1981). The Commonwealth then brought this interlocutory appeal pursuant to Mass.R.Crim.P. 15(a)(2), 378 Mass. 882 (1979).

The defendant Floyd W. Knockel was also arrested and charged with operating a motor vehicle while under the influence of alcohol, and was also advised that his refusal to take a breathalyzer test would result in the suspension of his license. He took the breathalyzer test, and later, at a hearing on his motion to suppress the results of the test, he too testified that he submitted to the testing procedure in order to avoid the suspension of his license. The District Court judge, pursuant to Mass.R.Crim.P. 34, 378 Mass. 905 (1979), reported without decision to the Appeals Court the following questions of law: "1. Does Article XII of the Massachusetts Declaration of Rights require the suppression of the results of a scientific test which constitute evidence which was obtained as a result of the compulsion exerted through the mandatory loss of license provisions of M.G.L. c. 90 § 24 in the event of the failure of a person to submit to such a test. 2. Does Article XII of the Massachusetts Declaration of Rights preclude the compelled production of all 'evidence' of any type and nature, or is it limited to 'testimonial' evidence as is the Fifth Amendment to the United States Constitution" (footnote omitted). We transferred the case to this court on our own motion.

1. The Privilege Against Self-incrimination Under the United States Constitution.

We first dispose of any suggestion that the oral statements made by Brennan to the police are admissible. The statements were clearly elicited in violation of the requirements set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 477, 68 L.Ed.2d 378 (1981). See also Commonwealth v. Brant, 380 Mass. 876, 406 N.E.2d 1021 cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980); Commonwealth v. Taylor, 374 Mass. 426, 374 N.E.2d 81 (1978). Although the Commonwealth has offered no argument on this issue, we observe that several jurisdictions have held that Miranda does not apply to motor vehicle violations and other less serious crimes. See, e.g., Clay v. Riddle, 541 F.2d 456, 457-458 (4th Cir. 1976); State v. Gabrielson, 192 N.W.2d 792, 796 (Iowa 1971), cert. denied, 409 U.S. 912, 93 S.Ct. 239, 34 L.Ed.2d 173 (1972); State v. Neal, 476 S.W.2d 547, 555 (Mo.1972); State v. Macuk, 57 N.J. 1, 15-16, 268 A.2d 1 (1970); State v. Pyle, 19 Ohio St.2d 64, 66, 249 N.E.2d 826 (1969). See Annot., 25 A.L.R.3d 1076 (1969). However, we do not think that the relevant decisions of the United States Supreme Court support such a distinction. Accord, Campbell v. Superior Court, 106 Ariz. 542, 551-552, 479 P.2d 685 (1971); State v. Lawson, 285 N.C. 320, 328, 204 S.E.2d 843 (1974); State v. Fields, 294 N.W.2d 404, 409-410 (N.D.1980); State v. Darnell, 8 Wash.App. 627, 628, 508 P.2d 613 cert. denied, 414 U.S. 1112, 94 S.Ct. 842, 38 L.Ed.2d 739 (1973). See also opinion of Justice White, dissenting from denial of certiorari in Lewin v. New Jersey, 444 U.S. 905, 100 S.Ct. 218, 62 L.Ed.2d 142 (1959). Accordingly, we hold that the oral statements made by Brennan were properly suppressed.

Brennan contends that his rights under the Fifth and Fourteenth Amendments were violated when the police asked him to take the breathalyzer and field sobriety tests after he expressed a desire to remain silent and to see his lawyer. ² See Miranda v. Arizona, supra 384 U.S. at 473-474, 86 S.Ct. at 1627. The privilege of the accused not to be compelled to be a witness against himself, however, protects only against the compulsion of "communications," or "testimony." It does not bar compulsion "which makes a suspect or accused the source of 'real or physical evidence.' " Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966). In Schmerber, the United States Supreme Court held that the compulsory taking of blood for analysis of its alcohol content and its use in evidence did not violate the defendant's Fifth Amendment privilege against self-incrimination.

With respect to the breathalyzer test, we see no distinction between this type of test and the blood test involved in the Schmerber case. A breathalyzer test is no more communicative or testimonial than a blood test, and it is certainly a less intrusive method of obtaining evidence. The fact that the breathalyzer test requires a greater degree of participation is not a distinguishing factor, as is suggested. Accord, State v. Driver, 59 Wis.2d 35, 207 N.W.2d 850 (1973). Other forms of compelled production of evidence involving greater degrees of participation than that required by a breathalyzer test have been held not to violate the privilege. See United States v Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplars); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplars); Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910) (modelling of a blouse). Numerous cases from other jurisdictions have also concluded that a breathalyzer test does not produce evidence of a testimonial nature. ³ Accordingly, we conclude that the protections afforded by the Fifth Amendment are not available to an accused who submits to a breathalyzer test.

A somewhat closer question is presented with respect to field sobriety tests. Such tests enable an observer to draw an inference as to guilt or innocence directly from the subject's ability to perform the acts required of him. Arguably, the suspect's actions have, in the circumstances, a communicative quality to them. This has led at least one court to conclude that field sobriety tests are subject to the protections afforded by the Fifth Amendment. See People v. McLaren, 55 Misc.2d 676, 680-681, 285 N.Y.S.2d 991 (N.Y.Dist.Ct.1967). Nevertheless, upon analysis of the pertinent Supreme Court cases, we agree with the decisions of the great majority of other jurisdictions which hold that field sobriety tests do not involve testimonial or communicative evidence. ⁴

The United States Supreme Court has consistently indicated that evidence that is "testimonial" or "communicative" in nature is that which reveals the subjective knowledge or thought processes of the subject. In Schmerber, supra 384 U.S. at 761 n.5, 86 S.Ct. at 1830 n.5 the Court referred to a nod or head-shake as "testimonial," and indicated that "[s]ome tests seemingly directed to obtain 'physical evidence,' for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial." Id. at 764, 86 S.Ct. at 1832. On the other hand, the Court in Schmerber appeared to accept as correct those cases holding that the privilege 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" (footnote omitted). Id. See United States v. Wade, 388 U.S. 218, 223, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967). In Wade, the Court held that compelling an accused to submit to a lineup and to utter certain...