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BALTIMORE CITY DEPARTMENT SOCIAL SERVICES v. BOUKNIGHT

SUPREME COURT OF THE UNITED STATES No. 88-1182 110 S. Ct. 900, 493 U.S. 549, 107 L. Ed. 2d 992, 1990.SCT.41050 <http://www.versuslaw.com> *fn* decided: February 20, 1990. BALTIMORE CITY DEPARTMENT OF SOCIAL SERVICESv.BOUKNIGHT CERTIORARI TO THE COURT OF APPEALS OF MARYLAND. Ralph S. Tyler III, argued the cause for petitioner in No. 88-1182. With him on the briefs were J. Joseph Curran, Jr., Attorney General of Maryland, and Andrew H. Baida and Carmen M. Shepard, Assistant Attorneys General. Mitchell Y. Mirviss, argued the cause for petitioner in No. 88-6651. With him on the briefs were Susan Dishler Shubin, Stuart R. Cohen, Kathi Grasso, and M. Gayle Hafner. George E. Burns, Jr., argued the cause for respondent. With him on the brief were Jose F. Anderson, George M. Lipman, Gary S. Offutt, Robin Parsons, and M. Christina Gutierrez.*fn** O'connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, Scalia, and Kennedy, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 563. Author: O'connor


CERTIORARI TO THE COURT OF APPEALS OF MARYLAND.

O'connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, Scalia, and Kennedy, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 563.

Author: O'connor

 JUSTICE O'CONNOR delivered the opinion of the Court.

In this action, we must decide whether a mother, the custodian of a child pursuant to a court order, may invoke the Fifth Amendment privilege against self-incrimination to resist an order of the juvenile court to produce the child. We hold that she may not.

I

Petitioner Maurice M. is an abused child. When he was three months old, he was hospitalized with a fractured left femur, and examination revealed several partially healed bone fractures and other indications of severe physical abuse. In the hospital, respondent Bouknight, Maurice's mother, was observed shaking Maurice, dropping him in his crib despite his spica cast, and otherwise handling him in a manner inconsistent with his recovery and continued health. Hospital personnel notified Baltimore City Department of Social Services (BCDSS), petitioner in No. 88-1182, of suspected child abuse. In February 1987, BCDSS secured a court order removing Maurice from Bouknight's control and placing him in shelter care. Several months later, the shelter care order was inexplicably modified to return Maurice to Bouknight's custody temporarily. Following a hearing held shortly thereafter, the juvenile court declared Maurice to be a "child in need of assistance," thus asserting jurisdiction over Maurice and placing him under BCDSS' continuing oversight. BCDSS agreed that Bouknight could continue as custodian of the child, but only pursuant to extensive conditions set forth in a court-approved protective supervision order. The order required Bouknight to "cooperate with BCDSS," "continue in therapy," participate in parental aid and training programs, and "refrain from physically punishing [Maurice]." App. to Pet. for Cert. 86a. The order's terms were "all subject to the further Order of the Court." Id., at 87a. Bouknight's attorney signed the order, and Bouknight in a separate form set forth her agreement to each term.

Eight months later, fearing for Maurice's safety, BCDSS returned to juvenile court. BCDSS caseworkers related that Bouknight would not cooperate with them and had in nearly every respect violated the terms of the protective order. BCDSS stated that Maurice's father had recently died in a shooting incident and that Bouknight, in light of the results of a psychological examination and her history of drug use, could not provide adequate care for the child. App. 33-34. On April 20, 1988, the court granted BCDSS' petition to remove Maurice from Bouknight's control for placement in foster care. BCDSS officials also petitioned for judicial relief from Bouknight's failure to produce Maurice or reveal where he could be found. Id., at 36-39. The petition recounted that on two recent visits by BCDSS officials to Bouknight's home, she had refused to reveal the location of the child or had indicated that the child was with an aunt whom she would not identify. The petition further asserted that inquiries of Bouknight's known relatives had revealed that none of them had recently seen Maurice and that BCDSS had prompted the police to issue a missing persons report and referred the case for investigation by the police homicide division. Also on April 20, the juvenile court, upon a hearing on the petition, cited Bouknight for violating the protective custody order and for failing to appear at the hearing. Bouknight had indicated to her attorney that she would appear with the child, but also expressed fear that if she appeared the State would "'snatch the child.'" Id., at 42, 54. The court issued an order to show cause why Bouknight should not be held in civil contempt for failure to produce the child. Expressing concern that Maurice was endangered or perhaps dead, the court issued a bench warrant for Bouknight's appearance. Id., at 51-57.

Maurice was not produced at subsequent hearings. At a hearing one week later, Bouknight claimed that Maurice was with a relative in Dallas. Investigation revealed that the relative had not seen Maurice. The next day, following another hearing at which Bouknight again declined to produce Maurice, the juvenile court found Bouknight in contempt for failure to produce the child as ordered. There was and has been no indication that she was unable to comply with the order. The court directed that Bouknight be imprisoned until she "purge[d] herself of contempt by either producing [Maurice] before the court or revealing to the court his exact whereabouts." App. to Pet. for Cert. 82a.

The juvenile court rejected Bouknight's subsequent claim that the contempt order violated the Fifth Amendment's guarantee against self-incrimination. The court stated that the production of Maurice would purge the contempt and that "the contempt is issued not because she refused to testify in any proceeding . . . [but] because she has failed to abide by the Order of this Court, mainly [for] the production of Maurice M." App. 150. While that decision was being appealed, Bouknight was convicted of theft and sentenced to 18 months' imprisonment in separate proceedings. The Court of Appeals of Maryland vacated the juvenile court's judgment upholding the contempt order. In re Maurice M., 314 Md. 391, 550 A. 2d 1135 (1988). The Court of Appeals found that the contempt order unconstitutionally compelled Bouknight to admit through the act of production "a measure of continuing control and dominion over Maurice's person" in circumstances in which "Bouknight has a reasonable apprehension that she will be prosecuted." Id., at 403-404, 550 A. 2d, at 1141. Chief Justice Rehnquist granted BCDSS' application for a stay of the judgment and mandate of the Maryland Court of Appeals, pending disposition of the petition for a writ of certiorari. 488 U.S. 1301 (1988) (in chambers). We granted certiorari, 490 U.S. 1003 (1989), and we now reverse.

II

The Fifth Amendment provides that "No person . . . shall be compelled in any criminal case to be a witness against himself." The Fifth Amendment's protection "applies only when the accused is compelled to make a testimonial communication that is incriminating." Fisher v. United States, 425 U.S. 391, 408 (1976); see Doe v. United States, 487 U.S. 201, 207, 209-210, n. 8 (1988) (Doe II); Schmerber v. California, 384 U.S. 757, 761 (1966) ("[T]he privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature"). The juvenile court concluded that Bouknight could comply with the order through the unadorned act of producing the child, and we thus address that aspect of the order. When the government demands that an item be produced, "the only thing compelled is the act of producing the [item]." Fisher, supra, at 410, n. 11; see United States v. Doe, 465 U.S. 605, 612 (1984) (Doe I). The Fifth Amendment's protection may nonetheless be implicated because the act of complying with the government's demand testifies to the existence, possession, or authenticity of the things produced. See Doe II, supra, at 209; Doe I, supra, at 612-614, and n. 13; Fisher, supra, at 410-413. But a person may not claim the Amendment's protections based upon the incrimination that may result from the contents or nature of the thing demanded. Doe I, 465 U.S., at 612, and n. 10; id., at 618 (O'CONNOR, J., concurring); Fisher, supra, at 408-410. Bouknight therefore cannot claim the privilege based upon anything that examination of Maurice might reveal, nor can she assert the privilege upon the theory that compliance would assert that the child produced is in fact Maurice (a fact the State could readily establish, rendering any testimony regarding existence or authenticity insufficiently incriminating, see Fisher, supra, at 411). Rather, Bouknight claims the benefit of the privilege because the act of production would amount to testimony regarding her control over, and possession of, Maurice. Although the State could readily introduce evidence of Bouknight's continuing control over the child -- e. g., the custody order, testimony of relatives, and Bouknight's own statements to Maryland officials before invoking the privilege -- her implicit communication of control over Maurice at the moment of production might aid the State in prosecuting Bouknight.

The possibility that a production order will compel testimonial assertions that may prove incriminating does not, in all contexts, justify invoking the privilege to resist production. See infra, at 556-558. Even assuming that this limited testimonial assertion is sufficiently incriminating and "sufficiently testimonial for purposes of the privilege," Fisher, supra, at 411, Bouknight may not invoke the privilege to resist the production order because she has assumed custodial duties related to production and because production is required as part of a non-criminal regulatory regime.

The Court has on several occasions recognized that the Fifth Amendment privilege may not be invoked to resist compliance with a regulatory regime constructed to effect the State's public purposes unrelated to the enforcement of its criminal laws. In Shapiro v. United States, 335 U.S. 1 (1948), the Court considered an application of the Emergency Price Control Act of 1942 and a regulation issued thereunder which required licensed businesses to maintain records and make them available for inspection by administrators. The Court indicated that no Fifth Amendment protection attached to production of the "required records," which the "'defendant was required to keep, not for his private uses, but for the benefit of the public, and for public inspection.'" Id., at 17-18 (quoting Wilson v. United States, 221 U.S. 361, 381 (1911)). The Court's discussion of the constitutional implications of the scheme focused upon the relation between the Government's regulatory objectives and the Government's interest in gaining access to the records in Shapiro's possession:

"It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the record-keeper himself. But no serious misgiving that those bounds have been overstepped would appear to be evoked when there is a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator." 335 U.S., at 32.

See also In re Harris, 221 U.S. 274, 279 (1911) (Holmes, J.) (regarding a court order that a bankrupt produce account books, "the question is not of testimony but of surrender -- not of compelling the bankrupt to be a witness against himself in a criminal case, past or future, but of compelling him to yield possession of property that he no longer is entitled to keep"). The Court has since refined those limits to the government's authority to gain access to items or information vested with this public character. The Court has noted that "the requirements at issue in Shapiro were imposed in 'an essentially non-criminal and regulatory area of inquiry,'" and that Shapiro 's reach is limited where requirements "are directed to a 'selective group inherently suspect of criminal activities.'" Marchetti v. United States, 390 U.S. 39, 57 (1968) (quoting Albertson v. Subversive Activities Control Board, 382 U.S. 70, 79 (1965)); see Grosso v. United States, 390 ...


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