extension of the Fifth Amendment, made the following comment:
'But the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.'
This limitation has been invariably applied whenever the problem has arisen. Thus in Shaffer v. United States, 24 App.D.C. 417, 426, the Court of Appeals for the District of Columbia, in an opinion written by Chief Justice Alvey, overruled an objection to the action of the Government in photographing the accused while holding him in custody and then using that photograph in procuring his identification at the trial. The learned Chief Justice wrote as follows on this point in 24 App.D.C. at page 426:
'This objection is founded upon the theory that the use of the photograph so obtained is in violation of the principle that a party cannot be required to testify against himself, or to furnish evidence to be so used. But we think there is no foundation for this objection. In taking and using the photographic picture there was no violation of any constitutional right. There is no pretense that there was any excessive force or illegal duress employed by the officer in taking the picture. We know that it is the daily practice of the police officers and detectives of crime to use photographic pictures for the discovery and identification of criminals, and that, without such means, many criminals would escape detection or identification. It could as well be contended that a prisoner could lawfully refuse to allow himself to be seen, while in prison, by a witness brought to identify him, or that he could rightfully refuse to uncover himself, or to remove a mark, in court, to enable witnesses to identify him as the party accused as that he could rightfully refuse to allow an officer, in whose custody he remained, to set an instrument and take his likeness for purposes of proof and identification.'
In McFarland v. United States, 80 U.S.App.D.C. 196, 150 F.2d 593, the Court of Appeals for this Circuit held that evidence of presence of blood on the defendant's body was admissible. After quoting the statement of Mr. Justice Holmes in Holt v. United States, supra, 80 U.S.App.D.C. at page 197, 150 F.2d at page 594, the Court observed:
'Out of court as well as in court, his (i.e. the defendant's) body may be examined with or without his consent.'
In Smith v. United States, 88 U.S.App.D.C. 80, 86, 187 F.2d 192, 198, it was held that for police officers to dye the defendant's hair and then to present him for identification by potential witnesses did not constitute self-incrimination. Judge Fahy wrote as follows on this point:
'We do not think that the rule against compulsory self-incrimination properly applies to pretrial efforts to identify a suspect as the probable perpetrator of a crime even though these efforts involve physical examination or observation of the suspect against his will.'
This principle has also been recognized and applied in other circuits. Thus, in Haywood v. United States, 7 Cir., 268 F. 795, 802, it was stated:
'* * * unless the origin and purpose of the command be disregarded and the key word be turned into an unintended, if not impossible, meaning, no compulsion is forbidden by the Fifth Amendment except testimonial compulsion.'
In Swingle v. United States, 10 Cir., 151 F.2d 512, 513, Judge Phillips made the following comment:
'* * * the prohibition against compelling an accused person to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, and not an exclusion of his body as evidence when it may be material.'
In United States v. Kelly, 55 F.2d 67, 83 A.L.R. 122, the Court of Appeals for the Second Circuit, in an opinion written by Judge Augustus N. Hand, in which Judges Learned Hand and Swan concurred, approved the practice of fingerprinting a prisoner and then introducing the fingerprints in evidence against him.
In Bratcher v. United States, 4 Cir., 149 F.2d 742, 745-746, the factual situation was very similar to that confronted in the case at bar. The opinion was written by Judge Northcott and concurred in by Judges Parker and Soper. The defendant had been convicted of evading service in the armed forces under the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq., by presenting himself for induction while in an abnormal physical condition artificially induced by the use of benzedrine, thereby causing his rejection for service. Evidence was introduced tending to show that before appearing high blood pressure. Because of suspicion took benzedrine for the purpose of causing that this had been done, the defendant was required to furnish a specimen of his urine and from an analysis of the specimen it appeared that he had been taking benzedrine. Objection to the introduction of the evidence as violative of the Fourth and Fifth Amendments was held untenable.
The law is clear, therefore, that the privilege against self-incrimination is limited to the giving of oral testimony. It does not extend to the use of the defendant's body as physical or real evidence. The conclusion is inevitable that it does not bar the use of secretions of the defendant's body and the introduction of their chemical analysis in evidence.
Rochin v. People of California, 342 U.S. 165, 72 S. Ct. 205, 210, 96 L. Ed. 183, on which defense counsel relies, is not in point, as it dealt with an entirely different principle. The case was decided under the due process clause of the Fourteenth Amendment, and did not involve the privilege against self-incrimination under the Fifth Amendment. In that case, local deputy sheriffs receiving information that the defendant was selling narcotics, broke into his room. He immediately seized two capsules and put them in his mouth. A struggle ensued, in the course of which the officers attempted to extract them. After these efforts proved unavailing, he was immediately taken to a hospital and a stomach pump was forcibly applied to him against his will. As a result the two capsules were vomited by the defendant. It was but natural for the Supreme Court to hold that the means used to obtain these capsules were so cruel and abhorrent to standards of decency as to constitute a violation of due process of law. The Court remarked that, 'They are methods too close to the rack and the screw to permit of constitutional differentiation', and again, 'to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law'. The principle of this case would be applicable here if force had been exerted or threats made to compel the defendant to comply with the demand for a specimen, or if some instrument had been forcibly applied to his body in order to obtain it. No such situation is presented, however, and no question of due process of law arises. The problem confronted is of a different nature, namely, whether the introduction of evidence of this kind obtained in the manner pursued in this case would constitute a violation of the privilege against self-incrimination. For the reasons heretofore discussed, the answer is manifestly in the negative.
Motion to suppress is denied.