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Fifth Amendment: Self Incrimination and Tattoos

U.S. v. Greer
Decided February 4, 2011 Second Circuit Court of Appeals.

Issue : Whether defendant’s Fifth Amendment right against self incrimination was violated when prosecution used tattoo on his arm to link him to the car in which ammunition was found.

Holding : the nature of the government’s reliance on the content of Greer’s tattoo made it testimonial, but no constitutional violation occurred because the tattoo was not the product of government compulsion.

Facts :

Greer’s arrest was precipitated by a tip from a confidential informant, Aaron Stubbs. Once Greer was apprehended, Detective Janus observed that a tattoo on his left arm said “Tangela.” At trial, the government asked Detective Janus on direct examination to describe Greer’s physical appearance on the date of his arrest. When Detective Janus replied that he saw Greer “had tattoos,” the government inquired whether he remembered

“what, if anything, any of the tattoos said.” Detective Janus responded, “I recall a tattoo, I believe it was on his left arm, that said ‘Tangela.'” Detective Janus had earlier testified to finding a rental car agreement in the name of “Tangela Hudson” in the Sonata. At trial, Greer did not object to this colloquy.

On appeal, Greer argues for the first time that the solicitation of testimony regarding his tattoo violated his right against self-incrimination.

Legal Discussion and Analysis :

The Fifth Amendment provides in part that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The right against self-incrimination bars only “compelled incriminating communications . . . that are ‘testimonial’ in character.” United States v. Hubbell, 530 U.S. 27, 34 (2000). In other

words, to qualify for Fifth Amendment protection, a communication must be (1) testimonial, (2) incriminating, and (3) compelled.

Whether a communication is testimonial for Fifth Amendment purposes “often depends on the facts and circumstances of the particular case.” Doe v. United States, 487 U.S. 201, 214-15 (1988). “[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a ‘witness’ against himself.” The privilege does not protect a criminal suspect from being compelled to exhibit physical characteristics, for example, “to put on a shirt, to provide a blood sample or handwriting exemplar, or to make a recording of his voice.” Hubbell, 530 U.S. at 35 (footnotes omitted). Such acts are not testimonial. It is “the contents of [the defendant’s] own mind . . . that implicate[] the Self-Incrimination Clause.”

[C]ompulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate [the Fifth Amendment].”). For that reason, the Fifth Amendment is not offended where a witness relies on a tattoo to identify a defendant. See, e.g., United States v. McCarthy, 473 F.2d 300, 304-05 n.3 (2d Cir. 1972). Here, the tattoo was used to a very different end.

Detective Janus did not describe Greer’s tattoo to identify Greer. Rather, the content of Greer’s tattoo, the name “Tangela,” was elicited because Greer’s statement of the name on his skin tended to prove that Greer had a relationship with a person of that name. That fact, in combination with other evidence, allowed jurors to infer that Greer had constructive possession of the ammunition found in the Sonata rented by a Tangela Hudson.

The government relied on the tattoo not as an “identifying physical characteristic” but for the “content of what [was] written.” Gilbert, 388 U.S. at 266-67. The tattoo was therefore testimonial and, because it linked Greer to the ammunition, incriminating. The tattoo, however, was not compelled by the government. Detective Janus testified that he observed the tattoo on Greer’s arm after his arrest. No evidence supports Greer’s contention on appeal that officers were able to read the tattoo only by applying physical force during his arrest. And, even if that were true, it would still not amount to compulsion for Fifth Amendment purposes. The Supreme Court has held that, where the

IRS compelled production of voluntarily prepared papers via summons, the taxpayer could not avoid compliance “by asserting that the item of evidence which he is required to produce contains incriminating writing. The voluntary tattooing of an incriminating word to Greer’s arm was, like the voluntary preparation of documents, not the product of government compulsion. In the absence of compulsion, Greer’s Fifth Amendment claim fails. The admission of the testimony of Detective Janus regarding Greer’s tattoo was not error. Judgment Affirmed.