People v. Rogers

• Decision Date: 17 May 1976
• Citation: 385 N.Y.S.2d 228,86 Misc.2d 868
• Parties: PEOPLE of the State of New York v. Artic ROGERS.
• Court: New York Supreme Court

Page 228

385 N.Y.S.2d 228

86 Misc.2d 868

PEOPLE of the State of New York v. Artic ROGERS.

Supreme Court, Criminal Term, Kings County.

May 17, 1976.

Eugene Gold, Dist. Atty., Kings County, Brooklyn, by John Cianci, Asst. Dist. Atty., Brooklyn, of counsel, for the People.

Siegel & Lebowitz, Brooklyn, by Alan L. Lebowitz, Brooklyn, of counsel, for defendant.

M. MICHAEL POTOKER, Justice.

The district attorney has applied to this court for an order directing the defendant (1) to furnish a voice exemplar; and (2) that this exemplar be of the words used on a tape which will be offered on trial.

In support of their respective positions, the district attorney submitted a memorandum of law and both sides presented argument before this court on whether or not the constitutional rights of the defendant would be violated by the granting of such an order.

The People intend to use this exemplar for the purpose of making a voiceprint and then having it compared with a voiceprint to be made from another tape previously obtained by means of an eavesdropping warrant.

Defendant resists the People's application on the ground that compelling him to funish a voice exemplar violates his Fifth Amendment privilege against self-incrimination and his Fourth Amendment right against unreasonable searches and seizures and his right of privacy.

Additionally, the court must consider whether it has sufficient jurisdiction over the defendant to make the requested order and whether the request of the district attorney is reasonable under the circumstances.

Fifth Amendment

It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination (United States v. Dionisio, 410 U.S. 1, 6, 93 S.Ct. 764, 767, 35 L.Ed.2d 67, 74).

'Both federal and state courts have usually held 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. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it.' (Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908.)

In Schmerber the Supreme Court held that the extraction and analysis of blood involved no 'shadow of testimonial compulsion upon or enforced communication by the accused.' (Schmerber, supra, at 765, 86 S.Ct. at 1832) The compelling of handwriting exemplars has been held not protected by the privilege against compulsory self-incrimination in Gilbert v. California, 338 U.S. 263, at 266, 267, 87 S.Ct. 1951, at 1953, 18 L.Ed.2d 1178. 'One's voice and handwriting are, of course, means of communication,' but a 'mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection.'

Similarly, the Supreme Court found no error in compelling a defendant in a robbery case to utter words, while in a lineup, that had allegedly been spoken by the robber. The defendant was thus 'required to use his voice as an identifying physical characteristic, not to speak his guilt.' (United States v. Wade, 388 U.S. 218, at 222--223, 87 S.Ct. 1926, at 1930, 18 L.Ed.2d 1149.)

The cases of Wade, Gilbert and Dionisio effectively refute any contention that the compelled production of the voice exemplar would violate the defendant's Fifth Amendment rights. Therefore, an individual's voice may be taken to be examined as to its physical properties to aid in the identification of a perpetrator, but not for the testimonial or communicative content of what was said (United States v. Dionisio, supra, 410 U.S. at p. 7, 93 S.Ct. 764).

See also People v. Singleton, 83 Misc.2d 112, 370 N.Y.S.2d 359; People v. Tine (App. Term 9th & 10th Judicial Districts, N.Y.L.J., 3/29/76, p. 9, col. 6); United States v. Raymond, 337 F.Supp. 641 (D.D.C.1972), affd. sub nom. United States v. Addison, 162 U.S.App.D.C. 199, 498 F.2d 741 (1974) (voice exemplar ordered and used with spectrogram analysis); United States v. Brown, No. 34383--72 (D.C.Super.Ct.1973, 13 Crim.L.Rptr. 2203); State v. La Coste, 256 La. 697, 237 So.2d 871 (trial judge ordering defendant to speak in courtroom did not make defendant incriminate self, contrary to Fifth Amendment); United States ex rel. Feldt v. Follette, D.C.N.Y., 298 F.Supp. 1298 (defendant ordered to speak while in lineup--not so suggestive as to give rise to irreparable misidentification); State v. Vice, 259 S.C. 30, 190 S.E.2d 510 (requirement that defendant speak into telephone so that his voice could be recorded for identification purposes did not violate privilege against self-incrimination); State v. Spencer, 28 Utah 2d 12, 497 P.2d 636 (defendant compelled to participate in lineup and to repeat certain words--did not deprive him of Fifth Amendment right to remain silent or to be a witness against himself); Biggers v. State, 1967, 219 Tenn. 553, 411 S.W.2d 696, affd. 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267, reh. den. 390 U.S. 1037, 88 S.Ct. 1401, 20 L.Ed.2d 298 (defendant in rape case engaged in conversation by police in police station within hearing of victim--defendant gave no factual information to connect him with crime--all he gave was sound of his voice, to be used, along with other things, solely for identification--Fifth Amendment right not violated; lower court decision affirmed by equally divided court); contra--(because of repeating Exact words), State v. Taylor 1948, 213 S.D. 330, 49 S.E.2d 289; also 24 A.L.R. 3d 1261 (voice test).

Similarly, People v. Allah, 84 Misc.2d 500, 376 N.Y.S.2d 339 (dental impressions to identify bite marks); People v. Marx, 54 Cal.App.3d 100, 126 Cal.Rptr. 350, 2d Dist., 1975, 18 Cr.L. 2457 (bite marks); State v. Williams, 239 N.W.2d 222 (18 Cr.L. 2501, Minn.Sup.Ct. 1976 (compelling wearing of hat in courtroom so defendant could be compared with photo)); People v. Mineo and Lanuto (Supreme Court, Queens County, 85 Misc.2d 919, 381 N.Y.S.2d 179 (takof palm prints)); People v. Yukl, 83 Misc.2d 364, 372 N.Y.S.2d 313 (Supreme Court, New York County, N.Y.L.J. 12/11/75, p. 8 (ordering submission to blood test)); District Attorney of Kings County v. Angelo G., 48 A.D.2d 576, 371 N.Y.S.2d 127 (handwriting exemplar); People v. Schwartz (New York County, N.Y.L.J. 4/14/76, p. 9 (handwriting exemplars)); People v. Omard, 86 Misc.2d 151, 382 N.Y.S.2d 416 (Kings County Crim.Ct., N.Y.L.J. 4/13/76, p. 11, col. 4 (handwriting exemplars)); People v. Sims (N.Y.L.J. 4/27/76, p. 6, col. 4 (verbatim handwriting exemplars)).

Nor would ordering a defendant to speak require him to change his physical appearance as was required when a defendant was order to shave his beard for a lineup, Not having been arrested for the crime under investigation (People v. Vega, 51 A.D.2d 33, 379 N.Y.S.2d 419).

Fourth Amendment

The Fourth Amendment guarantees that all people shall be 'secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . ..' If there is a Fourth Amendment violation here it must rest on a lawless governmental intrusion upon the privacy of the 'person.'

'(T)he Fourth Amendment protects people, not places' (Katz v. United States, 389 U.S. 347, at 351, 88 S.Ct. 507, at 511, 19 L.Ed.2d 576).

The Supreme Court explained the protection afforded 'persons' in light of the Katz statement, 'wherever an individual may harbor a reasonable 'expectation of privacy' . . . he is entitled to be free from unreasonable governmental intrusion' (Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889).

There are two possible Fourth Amendment issues; the initial 'seizing' of the person to bring him into contact with the government authorities (see, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676; United States v. Dionisio, supra, 410 U.S. at 8, 93 S.Ct. 764, 35 L.Ed.2d 67) and the actual obtaining of the voice exemplar from him--the 'search and seizure' of evidence.

In the instant case, the defendant had been lawfully 'seized' pursuant to an arrest warrant and the grand jury indictment upon which it was predicated. This gives the court jurisdiction to act with respect to the defendant.

The Fourth Amendment provides no protection for what 'a person knowingly exposes to the public, even in his own home or office . . ..' (Katz v. United States, 389 U.S. at 351, 88 S.Ct. at 511.)

'The physical characteristics of a person's voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.' (United States v. Dionisio, 410 U.S. at 14, 93 S.Ct. at 771.)

The Court of Appeals for the Second Circuit, in commenting upon oral and written communication, stated:

'The underlying identifying characteristics--the constant factor throughout both public and private communications--are open for all to see or hear. * * * (N)o intrusion into an individual's privacy results from compelled execution of handwriting or voice exemplars . . ..' (United States v. Doe (Schwartz), 2 Cir., 457 F.2d 895, 898--899.)

The taking of a voice exemplar is far removed from even the blood sample of Schmerber or the frisk of Terry. It 'involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.' (Davis v. Mississippi, 394 U.S. at 727, 89 S.Ct. at 139, 22 L.Ed.2d...