[47 Del. 335] Motion to suppress evidence relating to a sobriety test given to the defendant as being in violation of defendant's privilege against self-incrimination under the provision of Article 1, Section 7, of the Constitution of this State.
At about the hour of 5:00 p.m. on November 2, 1951, the defendant, Ernest M. Smith, was involved in an automobile collision on Route 896 near Glascow, Delaware. Within a short time after the occurrence of the collision Delaware State Trooper John M. Sullivan appeared on the scene. The Trooper upon his arrival found the defendant, Smith, present and, based upon his observation of him, concluded that he was under the influence of intoxicating liquor. After attending to certain routine police duties at the scene of the collision, the Trooper under the authority vested in him by the provisions of the Uniform Arrest Act, being Chapter 304, Volume 48, Laws of Delaware, placed the defendant in legal custody. He took the defendant to Troop Headquarters for questioning. During the first two hours of detention the Trooper examined the defendant rather extensively in order to determine the extent of his intoxication. The examination entailed the customary sobriety test, including the writing of his name and the performing of certain acts from which his muscular reflexes and mental reactions could be closely observed.
After examining and observing the defendant, as aforesaid, over a two hour period, and having the opinion that the defendant was then so intoxicated that he did not know what was going on, the Trooper placed him in a cell at Troop Headquarters until the next morning, at which time he was taken before a Justice of the Peace and there formally placed under arrest for [47 Del. 336] having operated a motor vehicle on the preceding afternoon while under the influence of intoxicating liquor.
The case was later transferred to the Court of Common Pleas for New Castle County, where the defendant was tried for having committed the offense as indicated. He was found guilty as charged. He has appealed to this Court.
Since his appeal is to be tried de novo, the defendant has filed a motion under which he seeks an order directing that any evidence relating to the results of the sobriety test, given to him by the Trooper during his first two hours of detention on the afternoon of November 2nd, be suppressed and not admitted in evidence during the trial against him.
In support of his motion the defendant contends as follows:
(1) Since the defendant was not arrested and charged wlth crime upon the expiration of the two hour period of detention, or then released, any evidence obtained from the defendant, as a result of the sobriety test conducted during the first two hour should be ordered suppressed;
(2) That any evidence obtained from the defendant as a result of the sobriety test during the first two hours of his detention is inadmissible and should be ordered suppressed for the reason that such tests, under the circumstances then existing, violated the accused's constitutional privilege against self incrimination under the provisions
The pertinent provisions of the Uniform Arrest Act, supra, are as follows:
'Sec. 50. Questioning And Detaining Suspects:
'(1) A peace officer may stop any person abroad whom he has reasonable ground to suspect is committing, has committed or is about to commit a crime, and may demand of him his name, address, business abroad and whither he is going.
[47 Del. 337] '(2) Any person so questioned who fails to identify himself or explain his actions to the satisfaction of the officer may be detained and further questioned and investigated.
'(3) The total period of detention provided for by this Section shall not exceed two hours. The detention is not an arrest and shall not be recorded as an arrest in any official record. At the end of the detention the person so detained shall be released or be arrested and charged with a crime.'
The pertinent provision of Article 1, Section 7, of the Constitution is as follows:
'Sec. 7. In all criminal prosecutions, the accused * * * shall not be compelled to give evidence against himself * * *.'
The defendant's motion was set down for argument. During argument the Attorney General suggested that he be permitted to produce Trooper Sullivan as a witness in order that I should have a clear understanding of what occurred from the time the defendant was detained by the Trooper on November 2nd until his formal arrest the following day. Trooper Sullivan was sworn as a witness. His testimony, relating to the factual circumstances that occurred from the time that he arrived upon the scene of the collision until the defendant's arrest the next day, is in substance the same as I have previously indicated.
[47 Del. 335] John M. Bader, Wilmington, for defendant.
Stephen Hamilton, Deputy Atty. Gen., for the State.
[47 Del. 337] Two contentions are asserted under the defendant's motion to suppress. Under the first contention he suggests that if a person, such as himself in the present case, is taken into custody and, thereafter, detained under the provisions of the Uniform Arrest Act, supra, and during the first two hours of his detention, thereunder, submits voluntarily to a sobriety test, but is not arrested and charged with crime or released by the detaining officer at the expiration of two hours from the commencement[47 Del. 338] of his detention, then such neglect or default on the part of the detaining officer renders inadmissible all evidence relating to the results of the sobriety test, to which he voluntarily submitted.
The defendant's position under this contention is without merit. He was in legal custody at the time the test was given to him. If he voluntarily submitted thereto, then the Trooper's neglect in not placing him under arrest or releasing him at the expiration of the two hour period of detention under the act can have no effect upon the admissibility of testimony tending to show the results of the test. I am not called upon to determine the admissibility of evidence procured as a result of a sobriety test made upon a defendant after the first two hours of detention under circumstances such as exist in the present case. Compare Rickards v. State, Del., 77 A.2d 199.
It should be noted in passing, however, that if officers of the law are prone to disregard the clear and unequivocal language of the act relating to their powers and duties thereunder, then they subject themselves to probable prosecution by reason thereof.
The question to be determined under the defendant's second contention presents quite a different problem and a most interesting one; that is, was the defendant's constitutional privilege against self incrimination violated by reason of the sobriety test, given to him by the detaining officer in the light of the circumstances then existing.
Under this contention the defendant interposes the following arguments: (1) that in order to render the results of a sobriety test admissible in evidence against him the State must clearly establish that he fully understood his constitutional rights, was presented with an option of taking the test or not taking it, appreciated at the time the probable consequences thereof, and under such circumstances voluntarily submitted thereto. Otherwise, his constitutional guarantee against self incrimination[47 Del. 339] under Article 1, Section 7, of our Constitution would be invaded, and evidence relating to the results of such a test should be held to be inadmissible against him during his trial; (2) that the Trooper's course of conduct in the present case in insisting that the accused take the sobriety test in the light of his then intoxicated condition, as indicated by the Trooper's testimony, evidenced what should be held to be tantamount to compulsion on the Trooper's part and, as such, is conduct in violation of the accused's constitutional privilege against self incrimination, thereby rendering any evidence obtained as a result of such test inadmissible against him at his trial.
The problem presented concerns the import to be given to the phrase '[a defendant] shall not be compelled to give evidence against himself' as the same appears under the provisions of Article 1, Section 7, of our Constitution. The question is one of first impression insofar as the decisional law of this State is concerned. Courts of other jurisdictions, however, have passed upon the substantive question under factual circumstances and constitutional provisions with a marked similarity to the ones that exist in the present case. A study of these decisions reflects a sharp conflict in thought in respect to the proper interpretation to be given to this privilege in whatever terms expressed, as the same appears in the Constitutions in those jurisdictions. This divergence of thought is expressed on the one side by a line of cases that indicates that the privilege against compulsory self incrimination pertains only to testimonial compulsions or their equivalent. Green Lake County v. Domes, 247 Wis. 90, 18 N.W.2d 348, 159 A.L.R. 204; State v. Alexander, 7 N.J. 585, 83 A.2d 441; Commonwealth v. Musto, 348 Pa. 300, 35 A.2d 307; Davis v. State, 189 Md. 640, 57 A.2d 289; State v. Cram, 176 Or. 577, 160 P.2d 283, 164 A.L.R. 952; People v. Gardner, 144 N.Y. 119, 38 N.E. 1003, 28 L.R.A. 699; Shanks v. State, 185 Md. 437, 45 A.2d 85, 163 A.L.R. 931; Harvard Law Review, 59 at page 521. To the contrary will be found a line of cases indicating that the privilege extends beyond testimonial compulsions or their equivalent and embraces compulsory demonstrations[47 Del. 340] by acts which tend to incriminate and which are said to be as obnoxious to the immunity granted as by words from the lips of the accused. Apodaca v. State, 140 Tex. Cr.R. 593, 146 S.W.2d 381; McManus v. Commonwealth, 264 Ky. 240, 94 S.W.2d 609; People v. Corder, 244 Mich. 274, 221 N.W. 309; State v. Matsinger, Mo.Sup., 180 S.W. 856; State v. Horton, 247 Mo. 657, 153 S.W. 1051; State v. Newcomb, 220 Mo. 54, 119 S.W. 405.
This rule of privilege springs from the early common law. Wigmore on Evidence, Volume 8, 3rd Edition, Section 2250. A review of the history of privilege and the spirit of the struggle by which it was accomplished reveals the object of the protection to be only against the employment of legal process to extract from the person's own lips an admission of his guilt, which will thus take the place of other evidence. Wigmore, supra, Section 2263.
The Federal Constitution and the Constitutions of the States, with two exceptions (Iowa and New Jersey), have embodied within them the principle of privilege. These constitutional sanctions, however, were not new creations at the time of their adoption; rather, they represented the recognition of the common law rule of privilege, as it then existed, and are but declaratory thereof.
Now in the light of the background that helps define the common law rule of privilege and our sanction added thereto under the provisions of Article 1, Section 7, of our Constitution, supra, the question is should the purpose in the establishment of
the privilege under the common law, that is, to only protect an individual against the employment of legal process to extract from his own lips an admission of his guilt which will thus take the place of other evidence, be extended by this Court to include instances where persons are compelled to perform certain physical acts or to submit to examinations, other than oral, which would tell against them quite as effectively as would utterances intended by them to convey ideas.
[47 Del. 341] Upon an extensive study of the question I have reached the conclusion that the limit of pivilege under the common law is a plain one. The essence thereof is the freedom from testimonial compulsion, and the sole effect of its protection is to prohibit the employment of legal process to extract from the person's own lips an admission of his guilt, which will thus take the place of other evidence. Since testimonial compulsion and not compulsion alone is the component idea of the privilege, compulsory examinations of accused persons beyond the field of oral examinations, or the equivalent thereof, either before or upon their trial do not violate the privilege, for the simple reason that such examinations do not call upon the accused persons as witnesses; that is, upon their testimonial responsibility. If the framers of our constitutional provision relating to the rule of privilege intended that it should extend beyond the common law application, such an intention should have been so expressed.
The Supreme Court of the United States in the recent case of Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, in dealing with the question of the admissibility of evidence obtained from an accused person against his will, stated in substance that while the Fifth Amendment imposed no restraint of any kind upon the States in the application of constitutional provisions or statutes of States defining privilege against self incrimination, nevertheless, if under all the circumstances in a given case the Court should find upon inquiry that the application of the state law in this respect was such that shocked the conscience of the Court, was repugnant to the decencies of civilized conduct, and was destructive of the very essence of a scheme of ordered liberty, then the Supreme Court has the power under the provisions of the due process clause of the Fourteenth Amendment to correct any error that might be found to exist in this respect in the record of a criminal trial in a State Court. In other words, a State is free to regulate the criminal procedure of its Courts in accordance with its own concepts of policy unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental. In [47 Del. 342] accordance with the foregoing philosophy, the Supreme Court concluded in the Rochin case that the extraction of morphine capsules from the stomach of Rochin against his will constituted such a display of brutality on the part of the law enforcing officers that evidence relating thereto should have been rejected at his trial, since in admitting the same he was deprived of due process of law under the Fourteenth Amendment.
As I have previously indicated, I think our constitutional provision found in Article 1, Section 7, relating to privilege against self incrimination, is but declaratory of the common law rule, and, as such, embraces only a prohibition by compulsory oral examination or the equivalent thereof of an accused person either before or upon trial; that is, to protect him from being required to incriminate himself by speech, or the equivalent of speech, such as written statements or confessions made by the accused, or actions which the accused might use in the place of words for the purpose of intending to communicate an idea, and in this respect dactylology is a good example. Otherwise, we lend judicial sanction to fanciful rights asserted by accused persons which shackle the functioning of law enforcement officers in the performance of their duties so as to prejudice the safety of the public.
In the application of the aforesaid rule to be followed in this State concerning privilege under the provision of Article 1, Section 7, of our Constitution, and as the same relates to the admissibility of evidence in a criminal ...