State v. Rheaume

State v. Rheaume (2002-400); 176 Vt. 413; 853 A.2d 1259

2004 VT 35

[Filed 09-Apr-2004]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

       	
                                 2004 VT 35

                                No. 2002-400


  State of Vermont	                         Supreme Court
  	
                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 2, Franklin Circuit

  Roy M. Rheaume	                         November Term, 2003


  James R. Crucitti, J.

  Derk A. Wadas, Franklin County Deputy State's Attorney, St. Albans, for
    Plaintiff-Appellee.

  Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender
    General, Montpelier, for Defendant-Appellant.


  PRESENT:  Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.

        
       ¶  1.  DOOLEY, J.   Defendant Roy Rheaume was convicted by a jury of
  driving under the influence of alcohol (DUI), 13 V.S.A. § 1201; this DUI
  conviction was defendant's third and accordingly classified as a felony. 
  See 23 V.S.A. § 1210(d) (person convicted of three or more DUIs  shall be
  fined not more than $2,500 or imprisoned not more than five years, or
  both); 13 V.S.A. § 1 ("any offense whose maximum term of imprisonment is
  more than two years . . . is a felony").  Prior to his jury trial where he
  was convicted, defendant moved to suppress statements concerning his
  identity.  These statements were made in response to questions asked by a
  Vermont State Trooper during processing.  In an effort to suppress the
  statements, defendant argued that his Miranda rights were violated because
  he was read the Miranda warnings and subsequently invoked his right to
  silence prior to questioning by the processing trooper.  The trial court
  denied defendant's motion finding that "there was no violation of the
  defendant's Fifth Amendment rights, rights under the Vermont Constitution
  or the Vermont Public Defender Act by the process followed by the trooper." 
  At the enhancement proceeding, the prosecution used defendant's date of
  birth and social security number to identify him and show that he had two
  prior DUI convictions.  Defendant now appeals his felony conviction and the
  trial court's denial of his motion to suppress the statements.  We affirm.

       ¶  2.  On August 31, 2001, a Vermont State Trooper pulled over a
  speeding vehicle.  After the vehicle stopped, the driver, later identified
  as Roy Rheaume, fled the vehicle and ran into a cornfield.  The trooper
  gave chase, but was unable to see anything in the cornfield.  Other
  troopers arrived on the scene and began searching for defendant.  After
  approximately thirty minutes, defendant was found sleeping in the
  cornfield.  The troopers who apprehended defendant detected a strong odor
  of alcohol on defendant's breath and saw that he had difficulty walking. 
  Defendant was arrested for DUI.
   
       ¶  3.  Following the arrest, the troopers took defendant to the
  station for processing, which was videotaped by the processing trooper. 
  Before defendant was given Miranda warnings, the processing trooper asked
  defendant several questions. (FN1)  After defendant answered these
  questions, the trooper read defendant the Miranda warnings.  In response to
  the warnings, defendant stated that he did not wish to speak with the
  trooper and that he wanted an attorney.  Following this request, the
  processing trooper telephoned the on-call public defender.  While the
  trooper had the attorney on the telephone, the trooper asked defendant his
  name and date of birth.  The trooper also informed the attorney, in
  defendant's presence,  that if defendant submitted to a breath test he
  could be released, but if he refused he would be lodged.  Defendant then
  spoke with the attorney and agreed to take the breath test.  After
  defendant spoke with the attorney, the trooper, continuing to process
  defendant, asked him for his address and social security number.  Defendant
  answered the processing questions, apparently truthfully.

       ¶  4.  Using defendant's date of birth and social security number, the
  trooper obtained copies of defendant's two prior DUI convictions: one in
  1981 and one in 1997.  Following a breath test, the trooper charged
  defendant with a  third DUI offense - a felony.  

       ¶  5.  After charges were filed, defendant moved through counsel to
  suppress the statements and the results of the breath test and to dismiss. 
  The trial court considered the motion during defendant's civil suspension
  hearing.  Subsequent to the hearing, the parties agreed that the court
  should consider the evidence presented in support of suppression in the
  civil suspension hearing in deciding defendant's motion to suppress
  evidence in the criminal case.  The court granted defendant's motion to
  suppress the breath test because of the trooper's statement to the on-call
  attorney that if defendant refused the breath test he would be lodged, but
  denied his motion to suppress the statements concerning his identity.  The
  court entered judgment in the civil suspension case in  defendant's favor
  and set the criminal case for trial before a jury.  
   
       ¶  6.  Pursuant to the procedures first outlined in State v.
  Cameron, 126 Vt. 244, 249-50, 227 A.2d 276, 279-80 (1967), the court held a
  bifurcated jury trial, first addressing whether defendant committed DUI on
  August 31, 2001.  During that phase of the criminal jury trial, defendant's
  attorney objected to the use of defendant's name and social security number
  for identification.  The court overruled this objection.  Defendant was
  convicted of DUI by a unanimous jury verdict.  

       ¶  7.  Following this jury verdict, the court moved on to the
  enhancement phase.  Because the State charged defendant with a third
  offense, it was required to prove beyond a reasonable doubt that defendant
  was convicted of DUI on two prior occasions.  During this proceeding, the
  State used defendant's name, date of birth, address, and social
  security-information obtained after defendant had received Miranda warnings
  and invoked his right to remain silent-to establish that the Roy Rheaume
  convicted of DUI in 1981 and 1997, and the Roy Rheaume presently convicted,
  were the same person.  At the conclusion of this proceeding, the jury found
  that the State had established the two prior DUI convictions.  Defendant
  was sentenced to ninety days to five years.  
   
       ¶  8.  Defendant argues here, as he did below, that his Miranda
  rights were violated when the processing trooper asked him his birth date
  and social security number after he had invoked his right to silence. 
  Therefore, he claims the trial court erred when it denied his motion to
  suppress the answers to these questions. We review motions to suppress de
  novo.  State v. Pierce, 173 Vt. 151, 152, 787 A.2d 1284, 1286 (2001).  The
  State, in opposition, contends that although the questions were asked after
  defendant invoked his right to silence, these questions did not violate
  Miranda because they fall within the "routine booking question" exception.  
  Defendant, conceding that such an exception exists under federal law, urges
  us not to apply it on the facts of this case and not to adopt it under
  Chapter I, Article 10 of the Vermont Constitution.    Thus, we address two
  issues in this appeal: (1) whether the questions objected to - seeking
  defendant's birth date and social security number - fit within the routine
  booking question exception to Miranda as a matter of federal law; and (2)
  whether we should recognize such an exception to Miranda under the Vermont
  Constitution.
        
       ¶  9.  We start with the routine booking question exception under
  federal law.  Although, as noted below, there was a disagreement over the
  rationale for the holding, the United States Supreme Court recognized an
  exception to the requirements of Miranda in Pennsylvania v. Muniz, 496 U.S. 582, 601-02, 608 (1990).  In Muniz, a police officer asked an arrested DUI
  suspect a number of routine questions for processing purposes.  Defendant
  sought to suppress the answers to these questions because he had not
  received Miranda warnings at the time that the questions were asked.  The
  United States Supreme Court upheld the denial of the motion to suppress
  based on a routine booking question exception to the Miranda requirements. 
  Id.   The plurality decision of Justice Brennan explained his rationale for
  adopting the exception:
   
    The Commonwealth argues that the seven questions asked by Officer
    Hosterman . . . - regarding Muniz's name, address, height, weight,
    eye color, date of birth, and current age??did not constitute
    custodial interrogation as we have defined the term in Miranda and
    subsequent cases. In Miranda, the Court referred to
    "interrogation" as actual "questioning initiated by law
    enforcement officers."  We have since clarified that definition,
    finding that the "goals of the Miranda  safeguards could be
    effectuated if those safeguards extended not only to express
    questioning, but also to 'its functional equivalent.'" In Rhode
    Island v. Innis, the Court defined the phrase "functional
    equivalent" of express questioning to include "any words or
    actions on the part of the police (other than those normally
    attendant to arrest and custody) that the police should know are
    reasonably likely to elicit an incriminating response from the
    suspect. The latter portion of this definition focuses primarily
    upon the perceptions of the suspect, rather than the intent of the
    police."  However, "[a]ny knowledge the police may have had
    concerning the unusual susceptibility of a defendant to a
    particular form of persuasion might be an important factor in
    determining" what the police reasonably should have known.  Thus,
    custodial interrogation for purposes of Miranda includes both
    express questioning and words or actions that, given the officer's
    knowledge of any special susceptibilities of the suspect, the
    officer knows or reasonably should know are likely to "have . . .
    the force of a question on the accused," and therefore be
    reasonably likely to elicit an incriminating response.

    We disagree with the Commonwealth's contention that Officer
    Hosterman's first seven questions regarding Muniz's name, address,
    height, weight, eye color, date of birth, and current age do not
    qualify as custodial interrogation as we defined the term in
    Innis, merely because the questions were not intended to elicit
    information for investigatory purposes. As explained above, the
    Innis test focuses primarily upon "the perspective of the
    suspect."  We agree with amicus United States, however, that
    Muniz's answers to these first seven questions are nonetheless
    admissible because the questions fall within a "routine booking
    question" exception which exempts from Miranda's coverage
    questions to secure the "'biographical data necessary to complete
    booking or pretrial services.'" The state court found that the
    first seven questions were "requested for record?keeping purposes
    only," and therefore the questions appear reasonably related to
    the police's administrative concerns. In this context, therefore,
    the first seven questions asked at the booking center fall outside
    the protections of Miranda and the answers thereto need not be
    suppressed.

  Id. at 600-02 (internal citations omitted).  Justice Brennan's rationale
  that booking questions seek testimonial responses represents the majority
  decision because it is joined by Justice Marshall who nevertheless
  dissented on whether to create such an exception.  See id. at 612 (booking
  questions sought testimonial responses because the answers would indicate
  defendant's state of mind).  Four justices concurred, in an opinion
  authored by Chief Justice Rehnquist, because they found that the answers to
  the booking questions were not testimonial.  See id. at 608 (Rehnquist,
  C.J., concurring).

       ¶  10.  Although Justice Brennan's opinion is only a plurality
  decision, all courts addressing routine booking questions after Muniz
  appear to have adopted it. (FN2)  See Thomas v. United States, 731 A.2d 415, 421 (D.C. Ct. App. 1999) (booking question exception "has been
  uniformly recognized since Muniz by the federal and state courts").  We
  discussed Muniz in State v. Blouin, 168 Vt. 119, 123-24, 125-26, 716 A.2d 826, 829-30 (1998) (majority and Skoglund, J., dissenting), but did not
  squarely adopt the routine booking question exception from that decision.
  We now adopt it as the prevailing statement of the applicable federal law. 

       ¶  11.  Defendant argues that two responses to the officer's questions
  - his date of birth and his social security number - were incriminating,
  because they allowed the State to identify defendant as the person who had
  twice been convicted of DUI in the past, and therefore do not fit into the
  routine booking question exception announced in Muniz. (FN3)   As the State
  points out, the test under Muniz is not whether the information disclosed
  could lead to a conviction, but instead whether the questions "are
  reasonably likely to elicit an incriminating response from the suspect." 
  Muniz, 496 U.S.  at 601; see also Hughes v. State, 695 A.2d 132, 140 (Md.
  Ct. App. 1997) (fact that answer to routine booking question helps the
  State to prove its case is not determinative);  State v. Banks, 370 S.E.2d 398, 403 (N.C. 1988) ("[T]he focus must be on the time and circumstances
  under which [the information] was obtained, not the use to which it was
  ultimately put").  We cannot conclude that the questions involved here meet
  that test.
       
       ¶  12.  Certainly, identification of the arrested person is central
  to the police processing function.  The questions asked in this case were
  apparently routine, were asked as part of routine processing, and were
  similar to the questions asked in Muniz.  Indeed, except for the unusual
  circumstances of this case where defendant was not seized while in his
  vehicle, the police would already have significant identification
  information from the operator's license of the driver.  See 23 V.S.A. §
  1012 (a), (b) (on request of officer who reasonably suspects operator is
  violating motor vehicle law, operator must provide name, address,
  operator's license and vehicle registration).  There is no indication in
  the record that the officer knew in advance of the inquiry that defendant
  had been convicted of DUI in the past.  See Hughes, 695 A.2d  at 140
  (inquiry is whether the officer, based on the totality of the
  circumstances, knew or should have known that the question was likely to
  elicit an incriminating response).
   
       ¶  13.  Defendant has cited cases in which courts found that birth
  date and social security information could be sought to help prove an
  element of a crime.  See, e.g., City of Fargo v. Wonder, 651 N.W.2d 665,
  669-70 (N.D. 2002) (asking partygoers who had consumed alcohol whether they
  were under the age of twenty-one not routine booking question); see also
  Thomas, 731 A.2d  at 423-26 (collecting and discussing decisions where
  identity-seeking questions were not found to be within the routine booking
  question exception).  Here, by contrast, there is no indication that the
  police had that intent or that the questions were likely to lead to
  incriminating evidence.  Except for special cases, courts have generally
  found that identification information is within the routine booking
  question exception of Muniz.  See United States v. Brown, 101 F.3d 1272,
  1274 (8th Cir. 1996);  Magar v. State, 836 S.W.2d 385, 386 (Ark. Ct. App.
  1992); People v. Anderson, 837 P.2d 293, 296 (Colo. Ct. App. 1992); State
  v. Evans, 523 A.2d 1306, 1314-15 (Conn. 1987). We see no reason in this
  case not to follow these precedents.

       ¶  14.  This brings us to defendant's second argument - that we should
  follow Justice Marshall's dissent in Muniz and reject the routine booking
  question exception as a matter of Vermont constitutional law. 

       ¶  15.  Chapter I, Article 10 of the Vermont Constitution provides in
  relevant part, "that in all prosecutions for criminal offenses . . . a
  person [cannot] be compelled to give evidence against oneself."  In State
  v. Brunelle, 148 Vt. 347, 355, n.11, 534 A.2d 198, 204 n.11 (1987) this
  Court explicitly recognized that "evidence obtained in violation of 
  Miranda is also in violation of the privilege against self-incrimination in
  Article 10 of the Vermont Constitution."  Although we have restated this
  holding, see State v. Zumbo, 157 Vt. 589, 592, 601 A.2d 986, 988 (1991)
  ("we have explicitly adopted Miranda under Chapter I, Article 10 "), we
  have not gone further and found a violation of the Miranda principles in
  circumstances where the United States Supreme Court has not done so. 

       ¶  16.  Defendant contends that we should employ the framework for
  constitutional inquiry established in State v. Jewett, 146 Vt. 221, 225-27,
  500 A.2d 233, 236-37 (1985), examining: (1) historical considerations; (2)
  the textual differences between Article 10 and the Fifth Amendment; (3)
  sibling state authority; and (4) policy considerations.  Although we employ
  the framework, we reach a conclusion different from that urged by
  defendant. 
   
       ¶  17.  Defendant, largely relying on case law from the 1800s and
  early 1900s, asserts that the privilege against self-incrimination is
  deeply rooted in our state's jurisprudence.  See State v. Hobbs, 2 Tyl.
  380, 383 (1803) (recognizing that Chapter I, Article 10 of the Vermont
  Constitution insulates our citizens from "all compulsory process to enforce
  an acknowledgment of guilt"); State v. Duncan, 78 Vt. 364, 370, 63 A. 225,
  225 (1906) ("Our Constitution declares that no one can be compelled to give
  criminating evidence against himself.  Such is the common law.").  He also
  notes that the text of Chapter I, Article 10 is different from that of the
  Fifth Amendment to the United States Constitution.  Arguing the
  significance of the textual difference, he quotes language from Jewett:

    Both the self-incrimination and search and seizure provisions of
    the Vermont Constitution contain wording substantially different
    from the parallel clauses in the Federal Charter.  Thus, it is
    possible that these clauses could be construed differently from
    somewhat similar provisions in the Federal Constitution or they
    may be given the same interpretation even though the language
    differs.  

  146 Vt. at 226-27, 500 A.2d  at 237.  
   
       ¶  18.  Despite the historical recognition of the privilege against
  self-incrimination and the language of Chapter I, Article 10, we have
  consistently held that, in its application to adults, the Article 10
  privilege against self-incrimination and that contained in the Fifth
  Amendment are synonymous.  See State v. Ely,167 Vt. 323, 330-31, 708 A.2d 1332, 1336 (1997) (stating that we have rejected "on a number of occasions"
  the contention that Article 10 provides broader rights than the Fifth
  Amendment); State v. Picknell, 142 Vt. 215, 227, 454 A.2d 711, 716 (1982)
  ("the majority of the forty-eight states that have a self-incrimination
  provision in their respective constitutions use language that differs from
  the phraseology employed by the Fifth Amendment," but they are interpreted
  as consistent with that amendment); State v. Brean, 136 Vt. 147, 151, 385 A.2d 1085, 1088 (1978) ("this Court" has "recognized that the various state
  and federal constitutional provisions relating to self-incrimination,
  although using slightly variant phraseology, have a common origin and a
  similar purpose"); State v. Baker, 115 Vt. 94, 113, 53 A.2d 53, 64 (1947)
  (Moulton, C.J., dissenting) (the Fifth Amendment has the same "meaning as
  the corresponding phraseology of the Constitution of this State"); In re
  DeWar, 102 Vt. 340, 346, 149 A. 489, 491 (1930) (the Fifth Amendment "is
  uniform in meaning with the provision of our Constitution herein directly
  involved"); see also In re E.T.C., 141 Vt. 375, 378-79, 449 A.2d 937,
  939-40 (1982) (holding that Article 10 affords greater rights than the
  Fifth Amendment for juveniles who are subjected to custodial police
  interrogation).  We noted the Jewett language in Ely, but discounted it as
  inconsistent with the long line of decisions to the contrary.  See 167 Vt.
  at 331 n.2, 708 A.2d  at 1336 n.2.  We see no reason to reexamine these
  holdings. 
   
       ¶  19.  Defendant next turns to the holdings in other states, arguing
  first that we should consider Massachusetts' and New Hampshire's
  Constitutions because they have similar self-incrimination provisions, see
  Mass. Const. Pt. 1 art. 12 ("No subject shall be held to. . . accuse, or
  furnish evidence against himself"); N.H. Const., Pt. I, art. 15 (a person
  shall not "be compelled to furnish evidence against himself"), and they
  have been interpreted as providing broader protections than the Fifth
  Amendment.  Even if we were to find in the decisions from these states a
  reason to overturn our settled interpretation of Chapter I, Article 10,
  this reconsideration would be of little benefit to defendant in this case. 
  Both these states recognize the routine booking exception for questions
  concerning identification that are asked to process a suspect.  See
  Commonwealth v. White, 663 N.E.2d 834, 844 (Mass. 1996) ("[s]ome
  information gained at booking is 'exempt' from the rule of Miranda v.
  Arizona") (internal citations omitted); State v. Chrisicos, 813 A.2d 513,
  515 (N.H. 2002) ("Statements made in response to routine booking questions
  need not be suppressed even if the defendant did not first waive his or her
  Miranda rights.").  Both decisions are based on the applicable state
  constitution provision, as well as on the Fifth Amendment.  White, 663 N.E.2d  at 844 (both Fifth Amendment and Article 12 recognize the booking
  question exception);  Chrisicos, 813 A.2d  at 515 (statements made in
  response to routine booking questions not subject to Miranda rights under 
  article 15).  Accordingly, consideration of the decisions in these states
  only supports the proposition that a routine booking exception should be
  recognized under Chapter I, Article 10 of the Vermont Constitution. 


       ¶  20.  Defendant urges us to rely on two decisions from other states
  that he argues reject the Muniz analysis and require that we suppress the
  answers to the booking questions in this case.  Before we examine those
  decisions, we make two points about the context in which these decisions
  are raised. As noted above, this Court has explicitly held that the
  requirements of Miranda are independently applicable under Chapter I,
  Article 10 of the Vermont Constitution.  We are one of only a handful of
  states to so hold.  See B. Latzer, Toward the Decentralization of Criminal
  Procedure: State Constitutional Law and Selective Disincorporation, 87 J.
  Crim. L. & Criminology 63, 109-10 (1996) (six states have held that their
  constitutional self-incrimination provision includes Miranda protections:
  Conn., Fla., Haw., Miss., Ore., and Vt.).  Some other states have adopted
  aspects of the Miranda rule, but not all of it.  See id.  As a result, the
  vast majority of state courts have never faced the question before us, and
  we do not know how they would rule.  Indeed, they might never reach the
  question because they might reject the wholesale incorporation of the
  Miranda rules on which defendant asks us to build.    
    
       ¶  21.  Moreover, the vast majority of state courts have explicitly
  relied upon a routine booking exception, often without specifying whether
  the decision is based only on the Fifth Amendment.  See State v. Vandeveer,
  533 P.2d 91, 95 (Ariz. Ct. App. 1975) ("questioning regarding routine
  booking matters does not fall within the purview of Miranda"); Magar, 836 S.W.2d  at 386 (questions asked to secure biographical data not Miranda
  violative); People v. Sanchez, 130 Cal. Rptr. 2d 219, 222 (Cal. Ct. App.
  2003) (questions asked concerning identity and address not incriminatory);
  Anderson, 837 P.2d  at 296 (request that suspect provide his address outside
  the purview of Miranda); Evans, 523 A.2d  at 1314-15 (questions asked during
  booking were administrative in nature, Miranda not triggered); People v.
  Abdelmassih, 577 N.E.2d 861, 864-65 (Ill. App. Ct. 1991) (questions about
  defendant's place of employment not proscribed by Miranda); Loving v.
  State, 647 N.E.2d 1123, 1126 (Ind. 1995) (routine administrative questions
  are removed from the requirements of Miranda); State v. Sallis, 574 N.W.2d 15, 18 (Iowa 1998) (custodial interrogation does not include questions
  asked to obtain biographical information); State v. Garcia, 664 P.2d 1343,
  1356 (Kan. 1983) (questions asked to complete booking not covered by
  Miranda); State v. Smith, 785 So. 2d 815, 818 (La. 2001) ("Because the
  officer's field interview asked for no more information than an individual
  might supply in response to booking questions . . . [the officer's]
  inquiries did not amount to interrogation for Miranda purposes."); State v.
  Brann, 736 A.2d 251, 255 (Me. 1999) (Maine has long recognized the routine
  booking question exception for questions asked to secure biographical
  data); White v. State, 821 A2d 459, 470 (Md. 2003) (police officers engaged
  in procedural processing dictated by statute are not engaging in
  interrogation); White, 663 N.E.2d  at 844 (questions seeking biographical
  data exempted from Miranda); State v. Mass, No. 204951, 1999 WL 33441276,
  at *1 (Mich. Ct. App. June 11, 1999) (per curiam) (statement that defendant
  lived in apartment where cocaine was found held admissible because it was
  made in response to a routine booking question); State v. Widell, 258 N.W.2d 795, 797 (Minn. 1977) (Miranda warnings not required before routine
  booking questions are asked); Wesley v. State, 521 So. 2d 1283, 1286 (Miss.
  1988) (questions asked during booking are not interrogation for the
  purposes of Miranda); State v. Isaiah, 874 S.W.2d 429, 436 (Mo. Ct. App.
  1994) (questions asked during booking not designed to elicit an
  incriminating response are not interrogation under Miranda); Chrisicos, 813 A.2d  at 515 (statements made in response to routine booking questions are
  not Miranda violative); State v. M.L., 600 A.2d 1211, 1215 (N.J. Super. Ct.
  App. Div. 1991) ("booking procedures and the routine questions associated
  therewith are ministerial in nature and beyond the right to remain
  silent"); People v. Rodney, 648 N.E.2d 471, 473 (N.Y. 1995) (responses to
  routine booking questions not suppressible even if Miranda violated);
  Banks, 370 S.E.2d  at 403 (Miranda requirements inapplicable to questions
  designed to elicit biographical data);  State v. Geasley, 619 N.E.2d 1086,
  1091 (Ohio Ct. App. 1993) (routine booking questions asked in violation of
  Miranda admissible); State v. Knoch, 738 P.2d 979, 981 (Or. Ct. App. 1987)
  (interrogation within the meaning of Miranda does not include routine
  booking questions); Commonwealth v. Daniels, 644 A.2d 1175, 1181 (Pa. 1994)
  (questions asked to obtain biographical data are exempt from Miranda);
  Lemmons v. State, No. 25-99-11715 CR, 2002 WL 471955, at *2 (Tex. Ct. App.
  Mar. 29, 2002) (statement made in response to a routine booking question
  admissible); Watts v. Commonwealth, 562 S.E.2d 699, 704 (Va. Ct. App. 2002)
  (explicitly adopting routine booking question exception for questions asked
  to secure biographical data); State v. Wheeler, 737 P.2d 1005, 1009 (Wash.
  1987) (exception to Miranda for routine booking questions arises because
  such questions are unlikely to elicit incriminating responses); State v.
  Stevens, 511 N.W.2d 591, 599 (Wis. 1994) (explicitly adopting the routine
  booking question exception).  Many of these decisions precede Muniz and,
  therefore, were not subject to controlling federal precedent. 
   
       ¶  22.  Nevertheless, defendant urges us to rely upon two decisions,
  State v. Ketchum, 34 P.3d 1006 (Haw. 2001) and  Allred v. State, 622 So. 2d 984 (Fla. 1993).  On close examination, we conclude that neither would
  support defendant's position here.  


       ¶  23.  The first case, State v. Ketchum, was decided under Article I,
  Section 10 of the Hawaii Constitution, the self-incrimination provision. 
  The Court decided that it would not adopt a routine booking question
  exception to Miranda, as described in Muniz.  Ketchum, 34 P.3d  at 1018-19.
  Instead, it announced the following rule:

    [W]e reaffirm the principle that "interrogation" consists of any
    express question - or, absent an express question, any words or
    conduct - that the officer knows or reasonably should know is
    likely to elicit an incriminating response. . . .  The totality of
    the circumstances must be considered to determine whether
    "interrogation" has occurred, with a focus upon the officer's
    conduct, the nature of the question (including whether the
    question is a "routine booking question"), and any other relevant
    circumstance.

  34 P.3d  at 1020 (internal citations omitted).  We find the rule in Ketchum
  largely indistinguishable from that announced in the decisions properly
  interpreting Muniz.  For example, in Hughes, after adopting the routine
  booking question exception, the Court stated that "[t]he routine booking
  question exception does not encompass questions that are designed to elicit
  incriminating admissions."  695 A.2d  at 142. The court went on to explain
  that determining whether a question is designed to elicit an incriminating
  response requires an evaluation of the totality of the circumstances,
  including the context in which the question was asked.  We question whether
  any case decided in Hawaii would reach a result different from that in
  Maryland as a result of the Hawaii Supreme Court's statement of its rule.  
  Cf. Note, Recognizing and Limiting the Routine Booking Question Exception,
  57 Md. L. Rev. 753, 771 (1998) (interpretation of  Muniz in Hughes "takes
  away most of the bite of the exemption"). More importantly, we see no
  reason why the application of the Hawaii rule would change the result in
  this case. 

       ¶  24.  The second decision, Allred, is even less supportive of
  defendant's position here.  Although the decision suggests some
  disagreement with Muniz under the self-incrimination provision of the
  Florida Constitution, that disagreement did not extend to Muniz's holding
  on the routine booking question exception.  In fact, the Court explicitly
  adopted the exception, "We find however [sic] that routine booking
  questions do not require Miranda warnings because they are not designed to
  lead to an incriminating response; rather, they are designed to lead to
  essential biographical data."  622 So. 2d  at 987.  The result in this case
  would be no different if Allred were the controlling precedent.

       ¶  25.  Finally, defendant contends that for public policy reasons we
  should not recognize an exception to Miranda for questions concerning
  identity that are asked only for administrative purposes.   Defendant
  argues that such an exception "may provide an incentive for police to
  attempt to circumvent Miranda."  We are not convinced.

       ¶  26.  In the leading case of Rhode Island v. Innis, 446 U.S. 291,
  301 (1980), the Supreme Court explained that Miranda's core concern was
  with protecting the suspect's privilege against self-incrimination in
  custodial interrogation.  Thus, the Court was concerned with "words or
  actions  . . . that the police should know are reasonably likely to elicit
  an incriminating response."  Innis, 446 U.S.  at 301; see State v.
  Fitzgerald, 165 Vt. 343, 345, 683 A.2d 10, 13  (1996).  We noted in
  Fitzgerald:


         The safeguards of Miranda attach whenever a person in custody
    is subjected to interrogation.  Under  Miranda, the term
    "interrogation" encompasses only "words or actions ... that the
    police should know are reasonably likely to elicit an
    incriminating response."  Although the focus of the inquiry is on
    the perception of the suspect, the police cannot be held
    accountable for the unforeseeable results of their words and
    actions.  Thus, an incriminating statement made in the course of
    casual conversation is not the product of interrogation. 

  165 Vt. At 345, 683 A.2d  at 13 (internal citations omitted).   

       ¶  27.  A blanket rule prohibiting all questioning is overbroad and
  unworkable.  We have already rejected it in Fitzgerald.  We believe that
  the objective standards developed in Innis and  Muniz define a line
  sufficiently bright for predictable application.

       ¶  28.  We also conclude that the policy interests weigh heavily
  against defendant's position where the questions go to the identity of the
  person the police have arrested.  As we said above, establishing the
  identity of the arrested person is a central concern of the booking
  function.  Indeed, the failure to provide satisfactory proof of identity
  may provide grounds for arrest.  See V.R.Cr.P. 3(c)(1).  It may determine
  the ability to gain pretrial release.  If a suspect refuses to identify him
  or herself, it is likely that the police can determine identity by
  non-testimonial methods.
   
       ¶  29.  We view questions related to defendant's identity for booking
  as being closer to requests for consent to search we allowed despite
  Miranda objections in State v. Crannell, 170 Vt. 387, 392, 750 A.2d 1002,
  1008-09 (2000), than to custodial interrogation.  In Crannell, a State
  Trooper asked  to search defendant's pick-up truck after he had received
  Miranda warnings and then invoked his right to silence and requested an
  attorney.   Defendant argued that the "request for consent to search
  violated his rights because: (1) it was interrogation, and (2) it elicited
  testimonial information that he owned the truck."  170 Vt. at 391, 750 A.2d 
  at 1008.   Finding neither of defendant's arguments persuasive, we held
  that the request was not interrogation because  "a defendants's consent to
  search is not an incriminating response" and that acknowledging ownership
  of the truck did not elicit testimonial information because the testimonial
  component was de minimis and it was a "foregone conclusion" that defendant
  owned the truck.  Id. at 393-94, 750 A.2d  at 1009.   As in Crannell, the
  answers to the questions relating to identity may have adverse consequences
  for the defendant, but the answers themselves are not incriminating
  responses, or the testimonial component is minor and a "foregone
  conclusion."   Id. 

       ¶  30.    For the above reasons, we conclude that none of the analysis
  considerations outlined in  Jewett lead us to the conclusion that we should
  reject Muniz under Chapter I, Article 10 of the Vermont Constitution and
  hold that Miranda was violated when the police requested and obtained from
  defendant identifying information during booking, despite the fact that
  defendant had invoked his right to remain silent.

       Affirmed.  



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



------------------------------------------------------------------------------
                                  Footnotes

                                    
FN1.  The State concedes that these questions were Miranda violative.  The
  trial court found, however, that defendant's responses did not elicit any
  incriminating information, and defendant did not appeal this finding to
  this Court.

FN2.  Muniz was the first time the Supreme Court addressed the routine
  booking question exception.  Prior to Muniz, numerous state and federal
  courts had adopted this exception.  See United States v. Disla, 805 F.2d 1340, 1347 (9th Cir. 1986); United States v. McLaughlin, 777 F.2d 388,
  391-92 (8th Cir. 1985); United States v. Morrow, 731 F.2d 233, 237 (4th
  Cir. 1984); United States v. Avery, 717 F.2d 1020, 1024-25 (6th Cir. 1983);
  United States v. Glen-Archila, 677 F.2d 809, 815-16 (11th Cir. 1982); State
  v. Garcia, 664 P.2d 1343, 1356 (Kan. 1983); State v. Widell, 258 N.W.2d 795, 797 (Minn. 1977); State v. Knoch, 738 P.2d 979, 981 (Or. Ct. App.
  1987).

FN3.  We note that in Muniz and many of the federal and state decisions
  adopting the routine booking exception, suspects were questioned without
  first being given the Miranda warnings.  In this case, in contrast, the
  Miranda warnings were administered and then appellant was questioned. 
  Defendant has not argued that this distinction has any effect on the
  applicable law.  Thus, he has argued his position as if he was never
  provided any Miranda warnings prior to the officer asking him the booking
  questions.  We agree that it makes no difference with respect to the
  routine booking question exception whether defendant did or did not receive
  the warnings prior to questioning because the identification questions fall
  outside the scope of Miranda.  When presented with factually similar
  situations - Miranda warnings administered and then routine booking
  questions asked - other courts have also relied on Muniz and have drawn no
  distinctions regarding the administration of the warnings.  See United
  States v. Foster, 227 F.3d 1096, 1102-03 (9th Cir. 2000) ("[L]imited,
  biographical questions are permitted even after a person invokes his or her
  Miranda rights."); United States v. Bogle, 114 F.3d 1271, 1273, 1275 (D.C.
  Cir. 1997) (defendant received Miranda warnings prior to questioning and
  court held that "express questioning constitutes interrogation only when it
  is reasonably likely to elicit an incrimination response"); United States
  v. Taylor, 799 F.2d 126, 127 (4th Cir. 1986) (court held that questions
  asked after defendant was advised of his Miranda rights pertaining to
  identification did not constitute interrogation); Golphin v. State, 533 S.E.2d 168, 200-02 (N.C. 2000) (questions relating to identification not
  Miranda violative because not interrogation even though asked after
  defendant had invoked his right to counsel subsequent to receiving Miranda
  warnings).  We also note that in the comparable case of State v. Crannell,
  170 Vt. 387, 392, 750 A.2d 1002, 1008-09 (2000), discussed infra, where
  defendant had invoked his Miranda rights, we relied on Rhode Island v.
  Innis, 446 U.S. 291 (1980) where defendant did not receive Miranda
  warnings, and made no distinction between situations where defendants
  receive the warnings and those where they do not.