Lead Opinion
OPINION OF THE COURT
We are called upon to decide whether the trial court violated defendant’s Fifth Amendment privilege against self-incrimination by allowing the People to introduce photographs of upper body tattoos, taken over defendant’s objection, as evidence of motive for committing a hate crime. We conclude that defendant was not “compelled ... to be a witness against himself’ (US Const 5th Amend) within the meaning of the privilege. The tattoos were physical characteristics, not testimony
I.
In the early morning hours of September 17, 2000, defendant and an accomplice lured two Mexican “day laborers” into a car with the false promise of work, and drove them to an abandoned building in Suffolk County on Long Island. During the drive, defendant asked the two men whether they were Mexicans. Almost immediately after arriving at the building, defendant and his accomplice launched an unprovoked and brutal attack on their two unsuspecting victims. Defendant struck both men in the head with a metal post-hole digger, while his accomplice stabbed one of them several times. The two victims, one of whom was bleeding profusely, contrived to escape their assailants by fleeing onto the Long Island Expressway. There, a passing motorist rescued them.
The extensive police investigation that followed the attack quickly focused on defendant and his accomplice. Defendant’s accоmplice turned himself in about a month after the crime. Three weeks later, defendant, accompanied by counsel, surrendered at the District Attorney’s office. Counsel informed the authorities that defendant would not be making any statements, and rejected the District Attorney’s request for “voluntary exemplars.” During arrest processing, law enforcement officials—over defendant’s objections—took photographs of his various tattoos. Defendant’s two victims did not observe the tattoos during the attack.
On the back of defendant’s neck, just below his hairline, his skin was tattooed in black with the letters “A.C.A.B.” (“All Cops Are Bastards”). On defendant’s right upper arm, the letters “F.T.W” (“Fuck The World”) were tattooed in red, and the letters “NYHC” (“New York Hard Core” or “New York Hate Corps”) were tattooed in black. A tattoo on defendant’s right upper chest pictured a Nazi swastika in black, crosscut with a white fist and encircled by the Celtic cross in red and black. The tattoo on defendant’s torso above his waistline depicted a cartoonish figure with a large nose, wearing a skullcap and a coat with money protruding from a pocket. This figure was kneeling
Defendant’s upper left arm also bore several elaborate tattoos, including an American flag above the Nazi swastika below a cloud; another Celtic cross; a skinhead holding a club and restraining a leashed pit bull wearing a spiked collar; a bald eagle; two lightning bolts, the symbol for the Nazi “SS”; a skinhead wearing suspenders on a bare chest and holding a flaming torch as he stepped upon human skeletal remains; and a tank crushing human skulls as it emerged from a city on fire. The tattoos on defendant’s left forearm featured an arrow projecting from a cloud or waterbody; a Viking ship with many shields along its side; and two burly Viking figures, one of which was blowing a horn.
In securing an indictment of defendant, the People presented the arrest photographs of these tattoos to the grand jury. Arguing that his rights under the Fourth, Fifth, and Sixth Amendments had been violated, defendant moved to dismiss the indictment and, failing that, to preclude the use of the photographs at trial. The trial court rejected defendant’s motion.
In finding no Fourth Amendment violation, the trial court remarked that it was “hard for [him] to believe that this defendant had a legitimate expectation of privacy during [his arrest] processing, especially one recognized by society, a point [he] does not attempt to argue.” He also cited CPL 160.10 (3), which provides that whenever fingerprinting of an arrestee is required or allowed, “the photograph ... of the arrested person or the defendant, as the case may be, may also be taken.” As for defendant’s Sixth Amendment claim, the trial court held that arrest processing was not a “critical stage” mandating the presence of counsel.
In rejecting defendant’s Fifth Amendment claim, the trial court relied largely on Schmerber v California (
In addition to denying defendant’s motion, the trial court also granted the People’s motion to take a second set of photographs pursuant to CPL 240.40. This provision vests a trial court with the discretion to order a defendant to provide “non-testimonial evidence,” including having to “[p]ose for photographs not involving reenactment of an event” (CPL 240.40 [2] [b] [iv]). The trial court determined that the tattoos were relevant to defendant’s motive for committing the charged hate crime of second-degree aggravated harassment. At the time, this provision made it a crime for a person “with intent to harass, annoy, threaten or alarm” to “[s]trike[ ], shove[ ], kick[ ], or otherwise subject[ ] another person to рhysical contact, or attempt[ ] or threaten[ ] to do the same because of the race[,] color, religion or national origin of such person” (Penal Law § 240.30 [3], as enacted by L 1982, ch 191, § l).
Before jury selection, defendant moved to preclude the introduction of the second set of photographs, reiterating his objection under the Fifth Amendment and disputing relevancy. The trial court again denied defendant’s motion.
At trial, the People introduced the photographs of defendant’s tattoos through the testimony of a friend, who identified them as depicting tattoos that he had observed on defendant’s body prior to the attack. The People also presented a witness who was qualified as an expert in bias and hate crimes. This expert testified as to the customary meaning of the letters, symbols and pictures represented in defendant’s tattoos. The trial court directed the expert not to testify that defendant belonged to or shared the views of any particular group; he also instructed the expеrt not to offer testimony as to what defendant may have been thinking during the attack. In allowing the expert’s testimony, the court again rejected various Fifth Amendment and relevancy arguments raised by defendant.
II.
Defendant argues that the photographs were introduced to establish his motive for committing a hate crime by disclosing his subjective thoughts and beliefs on the issue of race. And that, he claims, constituted compelled “testimonial” evidence forbidden by the Fifth Amendment privilege against self-incrimination. We disagree. Although the jurors may have inferred defendant’s motive from the existence of the tattoos, the tattoos were not compelled testimony within the scope of the privilеge.
As an initial matter, the privilege does not preclude a criminal defendant from being required to exhibit physical characteristics or to provide physical exemplars. Indeed, “a person can be forced to produce ‘real or physical evidence’ ” (People v Berg,
There is no doubt that defendant’s tattoos were, as the trial court concluded, “physical characteristics.” Nor is there any dispute that the People took the photographs of the tattoos over defendant’s objections. The issue thus becomes whether the privilege is implicated here because this particular “real or physical evidence” (Schmerber v California,
Thus, the privilege does not necessarily bar compelling the disclosure of evidence that a criminal defendant created voluntarily in the past, even if the evidence betrays “incriminating assertions of fact or belief’ (id. at 35; see also United States v Doe,
Nor, as the dissent implies, does the act-of-production doctrine come into play in this case. This doctrine derives from the distinction drawn by the Supreme Court in Fisher between the testimonial aspects of the content of evidence and its production, which “has communicative aspects of its own, wholly aside from . . . content[ ]” (Fisher v United States,
Here, the People obviously knew about defendant’s tattoos at the time of his arrest;
Nothing that occurred here implicated defendant’s privilege against self-incrimination. The People legally took two sets of photographs (initially, during arrest processing; later, by court order) of tattoos that defendant created voluntarily, long before he committed his crime.
In sum, the tattoos may have been incriminating in the sense of potentially reflecting defendant’s “subjective knowledge or thought processes” (People v Hager,
Accordingly, the order of the Appellate Division should be affirmed.
Notes
. Penal Law § 240.30 (3) now encompasses a broader range of prohibited conduct (see L 2000, ch 107, § 3).
. Defense counsel certainly seems to have understood the District Attorney’s request for “exemplar evidеnce” to have been aimed at obtaining photographs of defendant’s tattoos. How the authorities learned about defendant’s tattoos is not clear from the record before us. Only the tattoo on the back of defendant’s neck would have been plainly visible when he was wearing a long-sleeved shirt. The lead detective on the case, however, was a member of Suffolk County Police Department’s Bias Crimes Unit and so, at the very least, likely understood what this tattoo (the letters “A.C.A.B.”) signified. Further, the Peoрle had interviewed severed of defendant’s former girlfriends during their investigation of the crime.
. Defendant is pictured wearing trousers in the photographs attached to his motion to preclude and in those photographs admitted into evidence.
. Even if, as the dissent contends, the trial court erroneously authorized the taking of the second set of photographs, defendant suffered no prejudice as a result because neither set of photographs violated his Fifth Amendment privilege. Accordingly, the first set of рhotographs would have been admissible at trial. Moreover, assuming that the second set of photographs did not fit within the meaning of “non-testimonial evidence” obtainable by court order pursuant to CPL 240.40, “the admissibility of evidence in the face of the Self-Incrimination Clause does not turn on the presence or absence of’ statutory authorization (People v Berg,
. We also reject defendant’s claims under the Fourth and Sixth Amendments (see Schmerber v California,
Dissenting Opinion
(dissenting in part). Because I believe that by being forced to submit to the photographing of his tattoos, the defendant was compelled to be a witness against himself in violation of his Fifth Amendment privilege against self-incrimination, I respectfully dissent.
The Fifth Amendment protects a person from being “compelled in any criminal case to be a witness against himself’ (US Const 5th Amend) and encompasses testimonial or communicative evidence (see Schmerber v California,
Inasmuch as neither of defendant’s victims saw his tattoos, the tattoos were not offered for the purpose of identification, but as evidence of motive. It is certainly true that, typically, corporeal evidence falls outside the scope of the Fifth Amendment because a person’s physical characteristics are neither testimonial nor communicative. But when, in a case such as this one, corporeal evidence is offered for its testimonial value, the privilege against self-incrimination is clearly implicated. Today the Court ignores that critical distinction.
Typically, “[a] mere handwriting exеmplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the protection of the Fifth Amendment]” (Gilbert v California,
In being forced to remove his clothing and reveal tattoos that were used as proof of his subjective beliefs, defendant was thus compelled to provide evidence of a testimonial nature. The Cоurt recognizes the communicative quality of defendant’s tattoos (majority op at 399), but nonetheless concludes that defendant was not compelled to incriminate himself within the meaning of the Fifth Amendment, relying on a line of Supreme Court cases applicable to subpoenas for documents.
The analogy is dubious at best.
The Court’s reference to the proposition that one may be required to disclose documents that contain incriminating evidence when the individual was not “compelled” to create those documents (see majority op at 398-399, quoting United States v Hubbell,
Here, defendant’s tattoos were used to demonstrate his current beliefs or state of mind. Since they were offered for the purpose of proving defendant’s motive for the attacks, the tattoos were being used to show his “subjective knowledge or thought processes” (Hager,
I cannot agree, moreover, with the Court’s conclusion that the photographs originally taken of defendant’s tattoos upon his arrest were in any event permitted because they were obtained during normal arrest processing. The record reflects that all of defendant’s tattoos—with the exception of one on the back of his neck (the initials “A.C.A.B.,” likely meaningless to most people)—were located on areas of defendant’s body covered by his everyday clothing. “[W]hat he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” (Katz v United States,
Nor, despite the People’s contention, could these purported “аrrest photographs” be justified as part of the routine booking procedures to which all arrestees are subject (see CPL 160.10 [3]). Typical arrest photographs consist of front and side view “mug shots” of the face, necessary for the administrative purpose of identifying those in the custody of the police. Here, defendant, over his objection, was required to remove articles of his clothing to allow authorities to photograph his naked torso. We have never held that strip searches are, without more, automatically justified by a lawful arrest or permitted as a routine part of the booking process (see People v More, 97 NY2d
In any event, the photographs actually introduced at defendant’s trial were those secured pursuant to the CPL 240.40 order issued by County Court, not those taken at the time of his arrest. But these, too, were unlawfully obtained. The statute provides that “[u]pon motion of the prosecutor, and subject to constitutional limitation, the court . . . may order the defendant to provide non-testimonial evidence” (CPL 240.40 [2] [b]). CPL 240.40 could not authorize the photographs of defendant’s tattoos both because they were testimonial in nature, revealing his subjective thoughts, and because they violated defendant’s Fifth Amendment privilege against self-incrimination. Inasmuch as the Court concedes that defendant’s tattoos reflected his subjective knowledge or thought processes (see majority op at 400), it is hard to imagine how the Court can escape the conclusion that the testimonial photographs admitted at defendant’s trial were obtained in violation of the statute pursuant to which they were secured and therefore had to have been suppressed.
Defendant’s heinous crimes and despicable beliefs do not exempt him from the protections of the Constitution or the law. The admission at defendant’s trial of evidence of his tattoos, obtained by сompulsion, to demonstrate his subjective beliefs and thought processes plainly violated his privilege against self-incrimination. Nevertheless, inasmuch as proof of defendant’s guilt of attempted murder and assault was overwhelming, the
Judges G.B. Smith, Rosenblatt and Graffeo concur with Judge Read; Judge Ciparick dissents in part and votes to modify in a separate opinion in which Chief Judge Kaye concurs; Judge R.S. Smith taking no part.
Order affirmed.
. As the Supreme Court has often stated, “one of the several purposes served by the constitutional privilege against compelled testimonial self-incrimination is that of protecting personal privacy” (see e.g. Fisher v United States,
. The Court notes that County Court rejected defеndant’s Sixth Amendment claim because “arrest processing was not a ‘critical stage’ mandating the presence of counsel” (majority op at 396). But since arrest processing does not permit compelled self-incrimination, forcing defendant to strip in an effort to gain testimonial evidence was not part of any routine booking procedure constituting a noncritical stage. In any event, a defendant only has no right to counsel at a noncritical stage in the absence of a request (see People v Shaw,