CERTIORARI TO THE SUPREME COURT OF CALIFORNIA.
Burger, C. J., announced the Court's judgment and delivered an opinion, in which Stewart, White, and Blackmun, JJ., joined. Harlan, J., filed an opinion concurring in the judgment, post, p. 434. Black, J., filed a dissenting opinion, in which Douglas and Brennan, JJ., joined, post, p. 459. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 464.
MR. CHIEF JUSTICE BURGER announced the judgment of the Court and an opinion in which MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE BLACKMUN join.
This case presents the narrow but important question of whether the constitutional privilege against compulsory self-incrimination is infringed by California's so-called "hit and run" statute which requires the driver of a motor vehicle involved in an accident to stop at the scene and give his name and address. Similar "hit and run" or "stop and report" statutes are in effect in all 50 States and the District of Columbia.
On August 22, 1966, respondent Byers was charged in a two-count criminal complaint with two misdemeanor violations of the California Vehicle Code. Count 1 charged that on August 20 Byers passed another vehicle without maintaining the "safe distance" required by
§ 21750 (Supp. 1971). The second count charged that Byers had been involved in an accident but had failed to stop and identify himself as required by § 20002 (a)(1) (Supp. 1971).
This statute provides:*fn1
"The driver of any vehicle involved in an accident resulting in damage to any property including vehicles shall immediately stop the vehicle at the scene of the accident and shall then and there . . . locate and notify the owner or person in charge of such property of the name and address of the driver and owner of the vehicle involved . . . ."
It is stipulated that both charges arose out of the same accident.
Byers demurred to Count 2 on the ground that it violated his privilege against compulsory self-incrimination. His position was ultimately sustained by the California Supreme Court.*fn2 That court held that the privilege protected a driver who "reasonably believes that compliance with the statute will result in self-incrimination." 71 Cal. 2d 1039, 1047,
P. 2d 465, 471 (1969). Here the court found that Byers' apprehensions were reasonable because compliance with § 20002 (a)(1) confronted him with "substantial hazards of self-incrimination." Nevertheless the court upheld the validity of the statute by inserting a judicially created use restriction on the disclosures that it required. The court concluded, however, that it would be "unfair" to punish Byers for his failure to comply with the statute because he could not reasonably have anticipated the judicial promulgation of the use restriction.*fn3 We granted certiorari to assess the validity of the California Supreme Court's premise that without a use restriction § 20002 (a)(1) would violate the privilege against compulsory self-incrimination. We conclude that there is no conflict between the statute and the privilege.
Whenever the Court is confronted with the question of a compelled disclosure that has an incriminating potential, the judicial scrutiny is invariably a close one. Tension between the State's demand for disclosures and the protection of the right against self-incrimination is likely to give rise to serious questions. Inevitably these must be resolved in terms of balancing the public need on the one hand, and the individual claim to constitutional protections on the other; neither interest can be treated lightly.
An organized society imposes many burdens on its constituents. It commands the filing of tax returns for income; it requires producers and distributors of consumer goods to file informational reports on the manufacturing
process and the content of products, on the wages, hours, and working conditions of employees. Those who borrow money on the public market or issue securities for sale to the public must file various information reports; industries must report periodically the volume and content of pollutants discharged into our waters and atmosphere. Comparable examples are legion.*fn4
In each of these situations there is some possibility of prosecution -- often a very real one -- for criminal offenses disclosed by or deriving from the information that the law compels a person to supply. Information revealed by these reports could well be "a link in the chain" of evidence leading to prosecution and conviction. But under our holdings the mere possibility of incrimination is insufficient to defeat the strong policies in favor of a disclosure called for by statutes like the one challenged here.
United States v. Sullivan, 274 U.S. 259 (1927), shows that an application of the privilege to the California statute is not warranted. There a bootlegger was prosecuted for failure to file an income tax return. He claimed that the privilege against compulsory self-incrimination afforded him a complete defense because filing a return would have tended to incriminate him by revealing the unlawful source of his income. Speaking for the Court, Mr. Justice Holmes rejected this claim on the ground that it amounted to "an extreme if not an extravagant application of the Fifth Amendment." Id., at 263-264.*fn5
Sullivan's tax return, of course, increased his risk of prosecution and conviction for violation of the National Prohibition Act. But the Court had no difficulty in concluding that an extension of the privilege to cover that kind of mandatory report would have been unjustified. In order to invoke the privilege it is necessary to show that the compelled disclosures will themselves confront the claimant with "substantial hazards of self-incrimination."
The components of this requirement were articulated in Albertson v. SACB, 382 U.S. 70 (1965), and later in Marchetti v. United States, 390 U.S. 39 (1968), Grosso v. United States, 390 U.S. 62 (1968), and Haynes v. United States, 390 U.S. 85 (1968). In Albertson the Court held that an order requiring registration by individual members of a Communist organization violated the privilege. There Sullivan was distinguished:
"In Sullivan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities. Petitioners' claims are not asserted in an essentially non-criminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the . . . questions in context might involve the petitioners in the admission of a crucial element of a crime." 382 U.S., at 79 (emphasis added).
Albertson was followed by Marchetti and Grosso where the Court held that the privilege afforded a complete defense to prosecutions for noncompliance with federal
gambling tax and registration requirements. It was also followed in Haynes where petitioner had been prosecuted for failure to register a firearm as required by federal statute. In each of these cases the Court found that compliance with the statutory disclosure requirements would confront the petitioner with "substantial hazards of self-incrimination." E. g., Marchetti v. United States, 390 U.S., at 61.
In all of these cases the disclosures condemned were only those extracted from a "highly selective group inherently suspect of criminal activities" and the privilege was applied only in "an area permeated with criminal statutes" -- not in "an essentially non-criminal and regulatory area of inquiry." E. g., Albertson v. SACB, 382 U.S., at 79; Marchetti v. United States, 390 U.S., at 47.
Although the California Vehicle Code defines some criminal offenses, the statute is essentially regulatory, not criminal. The California Supreme Court noted that § 20002 (a)(1) was not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities arising from automobile accidents. In Marchetti the Court rested on the reality that almost everything connected with gambling is illegal under "comprehensive" state and federal statutory schemes. The Court noted that in almost every conceivable situation compliance with the statutory gambling requirements would have been incriminating. Largely because of these pervasive criminal prohibitions, gamblers were considered by the Court to be "a highly selective group inherently suspect of criminal activities."
In contrast, § 20002 (a)(1), like income tax laws, is directed at all persons -- here all persons who drive automobiles in California. This group, numbering as it does in the millions, is so large as to render § 20002 (a)(1) a statute "directed at the public at large." Albertson v. SACB, 382 U.S., at 79, construing United States v. Sullivan,
U.S. 259 (1927). It is difficult to consider this group as either "highly selective" or "inherently suspect of criminal activities." Driving an automobile, unlike gambling, is a lawful activity. Moreover, it is not a criminal offense under California law to be a driver "involved in an accident." An accident may be the fault of others; it may occur without any driver having been at fault. No empirical data are suggested in support of the conclusion that there is a relevant correlation between being a driver and criminal prosecution of drivers. So far as any available information instructs us, most accidents occur without creating criminal liability even if one or both of the drivers are guilty of negligence as a matter of tort law.
The disclosure of inherently illegal activity is inherently risky. Our decisions in Albertson and the cases following illustrate that truism. But disclosures with respect to automobile accidents simply do not entail the kind of substantial risk of self-incrimination involved in Marchetti, Grosso, and Haynes. Furthermore, the statutory purpose is non-criminal and self-reporting is indispensable to its fulfillment.
Even if we were to view the statutory reporting requirement as incriminating in the traditional sense, in our view it would be the "extravagant" extension of the privilege Justice Holmes warned against to hold that it is testimonial in the Fifth Amendment sense. Compliance with § 20002 (a)(1) requires two things: first, a driver involved in an accident is required to stop at the scene; second, he is required to give his name and address. The act of stopping is no more testimonial -- indeed less so in some respects -- than requiring a person in custody to stand or walk in a police lineup, to speak prescribed words, or to give samples of handwriting, fingerprints, or
blood. United States v. Wade, 388 U.S. 218, 221-223 (1967); Schmerber v. California, 384 U.S. 757, 764 and n. 8 (1966); 8 J. Wigmore, Evidence § 2265, pp. 386-400 (McNaughton rev. 1961). Disclosure of name and address is an essentially neutral act. Whatever the collateral consequences of disclosing name and address, the statutory purpose is to implement the state police power to regulate use of motor vehicles.
Section 20002 (a)(1) first requires that a driver involved in an accident "shall immediately stop the vehicle at the scene of the accident . . . ." It is, of course, possible that compliance with this requirement might ultimately lead to prosecution for some contemporaneous criminal violation of the motor vehicle code if one occurred, or an unrelated offense, always provided such offense could be established by independent evidence. In that sense it might furnish the authorities with what might be called "a link in the chain of evidence needed to prosecute . . . ." Hoffman v. United States, 341 U.S. 479, 486 (1951). In Schmerber v. California, supra, at 764, the Court held that "the privilege is a bar against compelling 'communications' or 'testimony,' but . . . compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it." There the petitioner had been compelled to undergo the forcible withdrawal of blood samples for alcohol content analysis, and the Court sustained this procedure over petitioner's claim that he had been compelled to furnish evidence against himself. See also Holt v. United States, 218 U.S. 245, 252 (1910) (Holmes, J.) (requiring defendant to model a blouse would be barred only by "an extravagant extension of the Fifth Amendment").
Stopping in compliance with § 20002 (a)(1) therefore does not provide the State with "evidence of a testimonial or communicative nature" within the meaning of the Constitution. Schmerber v. California, supra, at 761.
It merely provides the State and private parties with the driver's identity for, among other valid state needs, the study of causes of vehicle accidents and related purposes, always subject to the driver's right to assert a Fifth Amendment privilege concerning specific inquiries.
Respondent argues that since the statutory duty to stop is imposed only on the "driver of any vehicle involved in an accident," a driver's compliance is testimonial because his action gives rise to an inference that he believes that he was the "driver of [a] vehicle involved in an accident." From this, the respondent tells us, it can be further inferred that he was indeed the operator of an "accident involved" vehicle. In Wade, however, the Court rejected the notion that such inferences are communicative or testimonial. There the respondent was placed in a lineup to be viewed by persons who had witnessed a bank robbery. At one point he was compelled to speak the words alleged to have been used by the perpetrator. Despite the inference that the respondent uttered the words in his normal undisguised voice, the Court held that the utterances were not of a "testimonial" nature in the sense of the Fifth Amendment privilege even though the speaking might well have led to identifying him as the bank robber. United States v. Wade, supra, at 222-223. Furthermore, the Court noted in Wade that no question was presented as to the admissibility in evidence at trial of anything said or done at the lineup. Id., at 223. Similarly no such problem is presented here. Of course, a suspect's normal voice characteristics, like his handwriting, blood, fingerprints, or body may prove to be the crucial link in a chain of evidentiary factors resulting in prosecution and conviction. Yet such evidence may be used against a defendant.
After having stopped, a driver involved in an accident is required by § 20002 (a)(1) to notify the driver of the other vehicle of his name and address. A name, linked
with a motor vehicle, is no more incriminating than the tax return, linked with the disclosure of income, in United States v. Sullivan, supra. It identifies but does not by itself implicate anyone in criminal conduct.*fn6
Although identity, when made known, may lead to inquiry that in turn leads to arrest and charge, those developments depend on different factors and independent evidence. Here the compelled disclosure of identity could have led to a charge that might not have been made had the driver fled the scene; but this is true only in the same sense that a taxpayer can be charged on the basis of the contents of a tax return or failure to file an income tax form. There is no constitutional right to refuse to file an income tax return or to flee the scene of an accident in order to avoid the possibility of legal involvement.
The judgment of the California Supreme Court is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
MR. JUSTICE HARLAN, concurring in the judgment.
For the reasons which follow, I concur in the judgment of the Court.
The respondent, Byers, as a driver of a vehicle involved in an accident resulting in property damage, was charged in a two-count complaint with overtaking another vehicle in a manner proscribed by § 21750 of the California Vehicle Code (Supp. 1971) and failing to comply with the requirements of § 20002 (a) of the California Vehicle
Code (Supp. 1971).*fn1 The parties have stipulated that the accident was caused by respondent's violation of § 21750 of the California Vehicle Code. App. 36. The California Supreme Court has held that in circumstances where a driver involved in an accident has reason to believe his compliance with § 20002 (a) creates a substantial risk of disclosure of incriminating evidence, the Fifth Amendment requires that the State must either excuse his noncompliance if he properly pleads the privilege against self-incrimination in a subsequent prosecution for failure to comply or forgo the use of any information disclosed by the State's compulsion. Construing the state statute as wholly nonprosecutorial in purpose, the court then held that imposition of a restriction on the use of the information or its fruits in a subsequent criminal prosecution for the conduct causing the accident would be consistent with the state legislative purpose.
I cannot separate the requirement that the individual stop from the requirement that he identify himself for purposes of applying either the "testimonial -- non-testimonial" classification of Schmerber v. California, 384 U.S. 757 (1966), or the "substantial danger of incrimination" test of Hoffman v. United States, 341 U.S. 479 (1951). The California Supreme Court treated these requirements, in the primary context in which the statute operates, as compelling identification of oneself as a party involved in the statutorily regulated event. If evidence of that self-identification were admitted at trial, it would
certainly be "testimonial." If all that is offered at trial is the identification evidence of third-party witnesses, it still does not follow from United States v. Wade, 388 U.S. 218 (1967), that because the policies of the Fifth Amendment are not significantly affected by state compulsion to cooperate in the production of real evidence where the State has independently focused investigation on the defendant, these policies are similarly unaffected where the State -- in pursuit of "real" evidence -- demands of the defendant that he focus the investigation on himself. See generally Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government's Need for Information, 1966 Sup. Ct. Rev. 103, 121-124.
It may be said that requiring the defendant to focus attention on himself as an accident participant is not equivalent to requiring the defendant to focus attention on himself as a criminal suspect. And that proposition raises the underlying issue which we must resolve in this case: how do the various verbal formulations for assessing the legal significance of the risk of incrimination, developed by the Court primarily in the context of the criminal process, see Malloy v. Hogan, 378 U.S. 1, 11-14 (1964); Hoffman v. United States, ...