Com. v. Hayes

• Citation: 544 Pa. 46,674 A.2d 677
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 17 April 1996
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Samuel G. HAYES, III, Appellant.

Page 677

674 A.2d 677

544 Pa. 46

COMMONWEALTH of Pennsylvania, Appellee, v. Samuel G. HAYES, III, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 25, 1995.

Decided April 17, 1996.

David M. McGlaughlin, Philadelphia, for Samuel G. Hayes, III.

Mary MacNeil Killinger, Norristown, for Com.

Before NIX, C.J. and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

CAPPY, Justice:

The question presented to the Court is whether Article I, Section 9 of the Pennsylvania Constitution provides the "right" to refuse a field sobriety test and, if the Constitution does so provide, is there a concomitant right to be informed thereof? For the reasons that follow we find that Article I, Section 9 of the Pennsylvania Constitution does not provide a "right" to refuse a field sobriety test, and accordingly, that there is no concomitant right to be informed thereof. The order of the Superior Court is affirmed.

The appellant herein was convicted, after a jury trial, of driving while under the influence of alcohol pursuant to 75 Pa.C.S. § 3731(a)(1). ¹ The arresting officer testified to observing appellant make an extremely wide right turn onto the lane in which the officer was proceeding in a northerly direction. Appellant, who was proceeding in a southerly direction towards the officer, drove his vehicle in the wrong lane for several car lengths. The appellant pulled into the correct lane before passing the officer. As appellant passed the officer he smiled and waved. The officer turned his car around and followed appellant. Appellant pulled into his driveway and exited the vehicle. The officer approached and requested identification, at which time the officer observed that appellant had difficulty with his balance, his eyes were glassy and bloodshot, his speech was slurred, and he smelled of alcohol. The officer then requested that appellant perform certain field sobriety tests. ² According to the officer, appellant was unable to perform the tests and was then placed under arrest for driving under the influence. As stated above, appellant was subsequently convicted on that charge.

Following his conviction, appellant was sentenced to a term of imprisonment of forty-eight hours to twelve months and a fine of $300. The judgment of sentence was affirmed on appeal to the Superior Court. Allowance of Appeal was granted by this Court to address appellant's claim that his constitutional rights were violated when the arresting officer failed to advise him of the right to refuse to perform the field sobriety tests.

Appellant asserts that the right to refuse to perform field sobriety tests is encompassed within the right against self-incrimination found at Article I, Section 9 of the Pennsylvania Constitution. Therefore, appellant asserts the police must inform a suspect of the right to refuse to perform the field sobriety tests in accordance with the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). ³

Appellant concedes that the Fifth Amendment to the United States Constitution does not encompass the right to refuse to perform a field sobriety test. The United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), confirmed that the Fifth Amendment protection against self-incrimination is a bar against "communications" or "testimony," not physical evidence which the accused is compelled to produce, even if that physical evidence incriminates the accused. Id. at 764, 86 S.Ct. at 1832.

The Schmerber Court relied extensively upon the case of Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910), wherein the Court found the privilege did not apply when the defendant was asked to put on a particular blouse for the viewing of the witnesses and jury. Mr. Justice Holmes, writing for the Court in Holt, rejected the defendant's assertion of privilege as being "based upon an extravagant extension of the 5th Amendment," and further held:

The prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof.

Holt, 218 U.S. at 252-253, 31 S.Ct. at 5-6. Thus, premised upon the rationale from Holt, the Schmerber Court concluded that, as the right of self-incrimination is not at issue when an accused is compelled to reveal non-testimonial evidence, there is no requirement that the accused be advised of his or her Miranda rights before being compelled to reveal the non-testimonial evidence. Schmerber at 765, 86 S.Ct. at 1832.

At issue in Schmerber were the results of a blood alcohol test. However, the Court made clear that its holding was not limited to blood alcohol tests and in fact extended to various forms of physical and/or physiological testing through which the accused is compelled to produce incriminating evidence, including but not limited to: handwriting exemplars, voice samples, hair, fingerprints, measurements, or even particular gestures. Id. ⁴

Appellant argues that the textual differences between Article I, Section 9 of the Pennsylvania Constitution, and the Fifth Amendment to the United States Constitution compel a different conclusion regarding the application of the privilege against self-incrimination. Appellant avers that the Pennsylvania Constitution extends a greater degree of protection to its citizens, which encompasses protection against self-incrimination when an individual is compelled to produce non-testimonial evidence.

When resolving a claim for heightened protection under our State Constitution, this Court established in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) a four pronged analysis, which includes a review of the text of the provision at issue, the history of the provision, as developed through legislative enactments and case law, related case law from other jurisdictions and, finally, public policy considerations unique to our Commonwealth. Edmunds, 526 Pa. at 390, 586 A.2d at 895. Although it is not mandatory, we find this four pronged test to be quite useful in analyzing state constitutional claims and accordingly, will follow that framework herein.

This Court recently reviewed a claim for heightened protection in accordance with the privilege against self-incrimination under Article I, Section 9, as contrasted to the Fifth Amendment, in Commonwealth v. Swinehart, 541 Pa. 500, 664 A.2d 957 (1995). In Swinehart the question at issue was whether use and derivative use immunity as provided in 42 Pa.C.S. § 5947, was in conflict with the protection against compelled self-incrimination at Article I, Section 9 of the Pennsylvania Constitution. In resolving that question this Court thoroughly analyzed the development of the Constitutional privilege against self-incrimination in Pennsylvania. In reviewing the textual differences between Article I, Section 9, and the Fifth Amendment to the United States Constitution, this Court concluded that neither text indicated a major difference in the description of the privilege itself. Swinehart, 541 Pa. at 512, 664 A.2d at 962. ⁵

Moving then to the history of the privilege against self-incrimination as it developed in Pennsylvania, the Court in Swinehart found a decided preference for interpreting Article I, Section 9, consistent with interpretations of the Fifth Amendment as set forth in decisions of the United States Supreme Court. Id., 541 Pa. at 516, 664 A.2d at 965. The only exception to that general rule was in the area of individual reputation. The Court observed a tradition within Pennsylvania common law for protecting a witness from questions which would damage the witness' reputation. ⁶ Swinehart, 541 Pa. at 517, 664 A.2d at 963. This concern for an individual's reputation is consistent with our long established sense of a heightened awareness of personal privacy in Pennsylvania. See, Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), and Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496 (1978).

However, this commitment to protecting a person's reputation has never surfaced as a concern when the Courts in our Commonwealth have considered requests to compel an accused to reveal evidence of a non-testimonial nature. In Commonwealth v. Musto, 348 Pa. 300, 35 A.2d 307 (1944) this Court held that a defendant who raises the issue of his sanity has no constitutional right to refuse compliance with a Court ordered physical and psychological examination. ⁷ In Commonwealth v. Aljoe, 420 Pa. 198, 216 A.2d 50 (1966) the Court found no constitutional right to refuse to appear in a line-up. The use of a defendant's clothing and results of blood analysis were admissible over objection that they were subject to protection under the privilege against self-incrimination in Commonwealth v. Gordon, 431 Pa. 512, 246 A.2d 325 (1968). In Commonwealth v. Jefferson, 445 Pa. 1, 281 A.2d 852 (1971), this Court stated that fingerprints are non-testimonial evidence which is not protected by the constitutional privilege against self-incrimination. See also, Commonwealth v. Fernandez, 333 Pa.Super. 279, 482 A.2d 567 (1984) (a defendant can be compelled to shave his beard for identification by a witness); and Commonwealth v. Deren, 233 Pa.Super. 373, 337 A.2d 600 (1975) (use of hair samples does not violate constitutional privilege against self-incrimination).

Absent from the above noted decisions of our Court is a concern for the reputation of the accused when compelled to produce physical evidence. Admittedly the individual stopped and asked to perform a field sobriety test may experience a concern about his or her reputation arising from this type of police encounter. However, the effect upon an individual's reputation in being asked to perform...