State v. Cram ( 1945 )


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  • I concur with the majority, but I think it proper to add a few words.

    I agree that, upon the record before us, one question only is involved and that is whether the defendant has been compelled in a criminal prosecution to testify against himself within the meaning of Art. I, Sec. 12, of the Oregon Constitution. I agree with the so-called Wigmore doctrine as to the proper limitations and scope of the provision in question. It is a shield against testimonial compulsion. It protects the individual from any disclosure by him, whether verbal or otherwise, sought by legal process against him as a witness.

    "It is designed to prevent the use of legal process to force from the lips of the accused individual the evidence necessary to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him. * * * It protects the individual from any disclosure, in *Page 595 the form of oral testimony, documents or chattels, sought by legal process against him as a witness." (Italics ours.) United States v. White, 322 U.S. 694, 88 L. Ed. 1542, 64 S. Ct. 1248, 152 A.L.R. 1202.

    The obvious and humane purpose of the provision is to protect the defendant from duress or torture, to exclude from evidence testimony presumably unreliable when obtained by such means, and to exempt him from being called as a witness against his will. Neither the taking of the blood, nor the evidentiary value of the testimony concerning its alcoholic content depended in the slightest degree upon any testimonial utterance or representation by the defendant. Had the defendant been required by legal process to extract from his vein a sample of blood and present it in court, a different situation would have arisen, for by producing it he would be vouching for it as being the sample which he was ordered to produce. Its relevance would then depend upon his implied testimonial representation that the thing produced was his blood. Not so here. He gave no testimony; no process issued against him; he vouched for nothing; nothing depended upon his testimonial responsibility. There was no more testimonial compulsion here than in any case in which officers, in the course of an arrest, take from the person of the defendant instrumentalities by which the crime was committed and then testify in court as to the origin of the things taken. No one would contend that a defendant is compelled to testify against himself merely because another as a witness testifies against him.

    The difficulty with this case arises from the intermingling and confusion of two different, and, I believe, separate, rules — the rule against self-crimination, *Page 596 and the rule against admissibility of evidence illegally obtained. The evidence concerning the alcoholic content of defendant's blood was not objected to on the ground that it was illegally obtained, but only as a violation of the privilege against self-crimination. The defendant had knowledge before trial that the blood sample had been taken and yet no timely motion to suppress the evidence was made.

    There is, I think, but one theory under which the legality or illegality of the taking of the blood could become relevant upon this record. If the taking of the blood constituted an unreasonable search of the defendant's person within the meaning of Or. Const., Art. I, § 9, and if we should adopt the rule that all evidence obtained by an unlawful search is, by reason of that fact alone, inadmissible in evidence because its receipt would be a violation of the rule against self-crimination, then it would be necessary to consider the legality of the means by which the blood was secured in order to determine if the provision against self-crimination was violated by the receipt in evidence of the testimony.

    The Supreme Court of the United States has recognized or established an intimate interrelation between the Fourth Amendment (searches and seizures) and that portion of the Fifth Amendment which provides that no person shall be compelled in any criminal case to be a witness against himself, and it has, in substance, held that the introduction of evidence obtained by unlawful search amounts to a violation of the Fifth Amendment. The doctrine is vigorously and logically criticized by Wigmore, 8 Wigmore, Evidence (3d. ed. 1940) § 2264, and by the New York Court of Appeals *Page 597 speaking through Judge Cardozo in People v. Defore, 242 N.Y. 13,150, N.E. 585, and by other authorities. While every doctrine of the United States Supreme Court commands respect, they do not all command obedience. The exemption from self-crimination is not safeguarded as against state action by the Fourteenth Amendment, nor is it a privilege or immunity of citizens of the United States. Twining v. New Jersey, 211 U.S. 78, 29 S. Ct. 14,53 L. Ed. 97. The Supreme Court has said:

    "The 5th Amendment provides also that no person shall be compelled in any criminal case to be a witness against himself. This court has said that in prosecutions by a state, the exemption will fail if the state elects to end it." Palko v. Connecticut, 302 U.S. 319, 82 L. Ed. 288, 58 S. Ct. 149; Snyder v. Massachusetts, 291 U.S. 97, 78 L. Ed. 674, 54 S. Ct. 330, 90 A.L.R. 575; Brown v. Mississippi, 297 U.S. 278, 80 L. Ed. 682, 56 S. Ct. 461; Buchalter v. New York, 319 U.S. 427, 87 L. Ed. 1942, 63 S. Ct. 1129.

    Since the first ten amendments are not limitations on state action except as funneled through the Fourteenth Amendment, and since the Fourteenth Amendment has not served as a conduit for the self-crimination clause of the Fifth Amendment, we are free to consider the relationship between Or. Const., Art. I, § 9 (search and seizure) and Art. I, § 12 (self-crimination) as a pure question of state law.

    In this case it is unnecessary to decide whether the taking of blood was an unreasonable, and therefore an unconstitutional, search and seizure, or was merely a clear violation of the common law right to be free from assault and battery. Assuming that the taking was an unreasonable search and seizure, I am of the *Page 598 opinion that this court should not extend the self-crimination clause by holding that it prohibits the receipt of all evidence obtained by means of an unlawful search and seizure. Approximately half of the states of the Union hold that evidence obtained by an unlawful search and seizure is not rendered inadmissible by that fact alone. To engraft the self-crimination clause upon the search and seizure clause and to hold that the former applied in all cases where the latter is violated would amount to a condemnation of the established common law of many, if not most, of our sister states on constitutional grounds.

    In my opinion, the rule concerning the admissibility of evidence unlawfully obtained presents a separate problem of its own and the self-crimination clause should not be incorporated by judicial construction into the search and seizure clause of the constitution. This view once had the support of the Supreme Court of the United States, Adams v. New York, 192 U.S. 585,48 L. Ed. 575, 24 S. Ct. 372, although that court has since repudiated it in so far as federal prosecutions are concerned. Gouled v. UnitedStates, 225 U.S. 298, 65 L. Ed. 647, 41 S. Ct. 261. The criticism of the federal rule which incorporates the Fifth Amendment into the Fourth Amendment of the federal constitution is adequately set forth by Wigmore, by the profound opinion of Justice Cardozo in People v. Defore, supra, and by other eminent authorities who need not be quoted at this time. The conclusion from the above considerations is that the illegality of the means by which the evidence of alcoholic content was obtained was not put in issue by the mere assertion by the defendant of rights under the self-crimination clause. *Page 599

    In the majority opinion it is said:

    "If the arrest of a prisoner is lawful, the officer making the arrest may search the person of the prisoner and take from him not only the instruments of the crime but also such articles as may be of use as evidence on the trial. The search is justifiable as incident to the lawful arrest."

    And, again:

    "In the case at bar it is conceded that the defendant was in custody and under lawful arrest at the time the blood sample was extracted from his veins."

    The text above quoted appears to relate to the legality of the means by which evidence was obtained rather than to the issue of self-crimination, but I do not understand that it is intended by the use of those words to imply by analogy that it was also lawful to take blood as an incident of a lawful arrest. I think the taking of the blood was an unlawful trespass, if not an unreasonable and unconstitutional search and seizure, which rendered both the officer and the physician liable, civilly and criminally. Many acts of officers in searching the body of an arrested person establish a prima facie case of assault and battery, but are not unlawful because justified by public policy under the police power. The opinion of the majority enumerates such instances. But the justification of the officers arises out of the common law principles long established. The common law which justifies the search of an arrested person and the removal of articles of his clothing has not established any justification for the taking of his blood. It would be one thing for the legislature, under proper limitations and restrictions, to authorize the taking of blood samples from persons under arrest, but *Page 600 it would be quite another thing for the court to authorize so extreme an extension to the judicially established rules which justify the conduct of public officers in the public interest.

    Rule 205 of the Model Code of Evidence prepared by the American Law Institute provides:

    "SELF-INCRIMINATION; BODILY EXAMINATION.

    "No person has a privilege under Rule 203 to refuse

    "(a) to submit his body to examination for the purpose of discovering or recording his corporal features and other identifying characteristics, or his physical or mental condition, or

    "(b) to furnish or to permit the taking of samples of body fluids or substances for analysis."

    The rule is followed by this comment:

    "This Rule like Rule 201 adopts the doctrine of the better considered cases that the privilege against self-incrimination applies only to prevent testimonial compulsion and has no application to compulsory exhibition of the body. * * *"

    But it is to be observed that Rule 205 is a part of a proposed code which is recommended for adoption by legislatures.

    The question as to the admissibility of evidence unlawfully obtained has been thought to be an open one in this state. Fraenkel, "Recent Developments in the Law of Search and Seizure," 13 Minn. L. Rev. 1. If so, we will, no doubt, be required to reexamine that question and adopt either the federal rule or the common law rule advocated by Wigmore. But the question is not before us here. *Page 601

    To say that the defendant "furnished" the blood and that, therefore, he was compelled to criminate himself, lends little aid in the solution of the problem. If by "furnished" one means merely that it was taken from him, then I agree. But the problem is no nearer solution. If by "furnished" one means that the defendant in some manner testimonially vouched for the fact that the blood was his, then we must all agree that the defendant did not "furnish" the blood. Either way, the question for decision is whether the Wigmore construction of the self-crimination clause should, or should not, be approved.

    In his dissent the Chief Justice recognizes that the precise question is whether the self-crimination clause was violated, but much of what is said concerns the extent to which officers may lawfully go in obtaining evidence. It relates to unreasonable searches and to the mooted question as to the admissibility of evidence unlawfully obtained. In his condemnation of the conduct of the officer in taking the blood without the authority of any reasonably drawn legislative enactment, I concur. As to the admissibility of the evidence thus unlawfully obtained, I demur. That issue is not before us.

    Mr. Justice LUSK and Mr. Justice HAY concur in the foregoing opinion.