United States District Court, W.D. Virginia, Danville Division
AMENDED MEMORANDUM OPINION
MICHAEL F. URBANSKI UNITED STATES DISTRICT JUDGE
matter comes before the court on the government's
"First Motion to Obtain Photographs of Defendants'
Tattoos Relevant to Gang Affiliation." ECF No. 228. The
government asks the court to compel defendants to permit the
government to photograph their tattoos and present these
photos to the jury at trial as evidence of gang affiliation.
For the reasons stated below, the court will GRANT in part
and DENY in part the government's motion.
qualify for the Fifth Amendment privilege, a communication
must be testimonial, incriminating, and compelled.”
Hiibel v. Sixth Judicial Dist. Court of Nevada. Humboldt
Cty. 542 U.S. 177, 189 (2004). Certain physical traits
are not testimonial for purposes of the Fifth Amendment. For
example, the government may require a criminal suspect
“to put on a shirt, to provide a blood sample or
handwriting exemplar, or to make a recording of his
voice.” United States v. Hubbell, 530 U.S. 27,
35 (2000) (footnotes omitted); see also United States v.
Williams. 461 F.3d 441, 446-47 (4th Cir. 2006) (holding
that a demonstration by a defendant that he could not
physically wear the fanny pack as alleged by police is not
testimonial evidence). As such, "the Fifth Amendment is
not offended where a witness relies on a tattoo to identify a
defendant." United States v. Greer. 631 F.3d
608, 612 (2nd Cir. 2011).
government argues that the defendants' tattoos are not
testimonial, but “akin to handwriting, voice, and
fingerprints.” ECF No. 228, at 4. Here, however, the
government seeks evidence of defendants' tattoos not for
identification purposes, but as evidence of "each
defendants' affiliation with, and participation in, the
Milla Bloods street gang." ECF No. 228, at 1. In other
words, the government intends to rely on the tattoos
“for the content of what was written.”
Greer, 631 F.3d at 613 (quoting Gilbert v.
California. 388 U.S. 263, 266-67 (1967)). As defendants
point out, the court has considered this issue before, in
United States v. Jones, 7:16-cr-30026-MFU, and
concluded that, because the government seeks to use this
evidence for its content, rather than merely for recognition,
the tattoo evidence sought is testimonial. See
Greer, 631 F.3d at 613; United States v.
Ledbetter, 188 F.Supp.3d 674, 681 (S.D. Ohio 2016)
(Where "the government relies on evidence of the
defendant's tattoos for the content of the
communication-the tattoo is testimonial.") (citations
and quotations omitted). And given the nature of the charges
in this case, the tattoo evidence is plainly incriminating.
Thus, the first two qualifications to invoke Fifth Amendment
privilege are present. However, certain of defendants'
tattoos do not require government compulsion to be entered
government argues that photographing the defendants'
tattoos does not violate their Fifth Amendment rights because
"voluntary tattooing of incriminating symbols or words
on [the defendants' bodies] is not die product of
government compulsion." Certainly, photographing those
tattoos that are immediately visible does not require any
compulsion. Tattoos that are "openly visible on [a
defendant's] body," United States v.
Toliver. 387 Fed.Appx. 406, 418 (4th Cir. 2010)
(unpublished),  may be presented at trial -without
infringing on defendants' Fifth Amendment protections,
thus requiring defendants to submit to photographing openly
visible tattoos does not result in compelled communication.
See Greer. 631 F.3d at 613; Ledbetter. 188
F.Supp.3d at 683. Therefore, the government may photograph
defendants' openly visible tattoos, including tattoos on
defendants' heads, faces, necks, arms, and hands.
However, “the process of sharing [a] tattoo, which is
not otherwise 'openly visible'.. .has communicative
aspects of its own, ” and would require compulsion to
be photographed. Ledbetter, 188 F.Supp.3d at 683.
if the government seeks photographs of tattoos in other
locations than those listed above, the government may present
evidence indicating that a defendant treated those tattoos as
openly visible. For example, the government may show that a
defendant did not regularly wear a t-shirt, which would
indicate that a tattoo on the defendant's chest was
openly visible. To date, however, the government has not
presented such evidence. The exhibits offered by the
government, while showing several defendants in tank tops and
shiftless, do not prove that defendants treated any part of
their body apart from their arms, heads, necks, and faces as
openly visible, for the reasons discussed below.
issue are the Fourth Amendment rights of defendants. The
Fourth Amendment guarantees that all people shall be
“secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S.
Const, amend. IV. “[T]he obtaining of physical evidence
from a person involves a potential Fourth Amendment
violation, ” however “the Fourth Amendment
provides no protection for what 'a person knowingly
exposes to the public, even in his own home or
office.'” United States v.
DionisioT 410 U.S. 1, 8, 14 (1973). For this
reason, courts have denied Fourth Amendment protection to
fingerprints, voices, and faces. See Hayes v.
Florida, 470 U.S. 811, 816-17 (1985) (denying protection
to defendant's fingerprints); Dionisio, 410 U.S.
at 14 (denying protection to defendant's voice);
Application of Rodgers, 359 F.Supp. 576, 577
(E.D.N.Y. 1973) (denying protection to photographs of
defendant's face). Pretrial detainees retain some Fourth
Amendment protections, though their expectation of privacy is
diminished. Bell v. Wolfish. 441 U.S. 520, 556
(1979). See also Cantley v. West Virginia Regional Jail
and Correctional Facility Authority. 728 F.Supp.2d 803,
815 (S.D. W.Va. 2010) (holding that a pretrial detainee who
was subjected to a visual cavity strip search stated a claim
against the regional jail authority for violation of the
Jermay Antonio Smith, Jr. ("Smith") argues that
allowing the government to search and photograph
defendants' tattoos would violate not only the Fifth
Amendment, but the Fourth Amendment as well. ECF No. 231, at
1-2. He argues that the government has knowledge of only one
tattoo on only one defendant and yet seeks to search and
photograph all defendants. Smith argues that this search
constitutes an unjustified intrusion into defendants'
privacy. In analyzing the reasonableness of a physically
intrusive search, the court “must balance the
government's need for the particular search against the
invasion of personal rights entailed by the search.”
Leverett v. Bell. 247 F.3d 160, 167 (4th Cir. 2001)
(citing Bell v. Wolfish. 441 U.S. 520 (1979)). The
court has already ruled that a search of any tattoos not
openly visible to the public would violate defendants'
Fifth Amendment rights. The only photographs taken will be of
defendants' heads, faces, necks, arms, and hands. Since
these parts of the body are exposed on a day to day basis and
invoke no intimate privacy interests, such photographs
represent no invasion of personal rights.
government argues that defendants have waived both their
Fifth and Fourth Amendment rights by not hiding tattoos
located on their chest and legs. For the purposes of the
Fifth Amendment, the government argues that defendants are
treating the tattoos as openly visible. To use Fourth
Amendment language, the government would have the court hold
that defendants have "knowingly exposed" their
tattoos to the public. Dionisio, 410 U.S. at 8. In
support of this argument, the government submits a series of
photos gathered from social media showing defendants in tank
tops or shirtless and argues that all defendants charged with
involvement in this criminal enterprise have collectively
yielded their applicable constitutional rights. See
ECF No. 236.
threshold determination, each defendant holds his or her
rights independently of other defendants. The court has found
no caselaw indicating constitutional rights may be
collectively yielded; waiver requires an individual
determination per defendant. In the main, the court draws
distinction between “the daily revelations of one's
voice, face, and fingerprints that are an inevitable part of
living in an interactive world, ” and the occasional
removal of a shirt. Pace v. City of Des Moines. 201
F.3d 1050, 1053-54 (8th Or. 2000). Perhaps it would be
possible for an individual to reveal himself from the waist
up on such a casual and consistent basis that any reasonable
expectation of privacy regarding his chest is waived, but the
government has not shown this. The photos submitted show
several defendants in tank tops and the occasional shirtless
defendant. To find that the chance use of a tank top or
removal of a shift waives all expectations of privacy
pertaining to the torso would lead to an untenable
result-that every individual who had ever visited a public
pool waived Fourth Amendment protections to his or her body.
See id. (ruling that an officer's detention and
photography of defendant's chest without his consent
violated defendant's Fourth Amendment rights)
(“Were we to find otherwise, regular visitors to public
beaches and swimming pools would be surprised to discover
that their visits have cost them the lasting loss of a
reasonable expectation of privacy over very substantial
portions of their bodies. We do not believe that any
reasonable interpretation of Dionisio and its
progeny could lead to such a conclusion.”).
court holds that defendants have no reasonable expectation of
privacy to their heads, faces, necks, arms, and hands. The
government may photograph all tattoos located on these parts
of the body. The Fourth Amendment bars photographs taken
beyond these areas. As defendants retain their privacy
expectations in the face of the photos submitted by the
government, they cannot be said to have treated these parts
of the ...