The Chose Tattoo

United States v. Greer, No. 09-4362-cr (2d Cir. February 4, 2011) (Walker, Cabranes, CJJ, Koeltl, DJ)

Michael Greer was convicted of possessing a gun and its ammunition. The gun was recovered in a trash can along with the keys to a Hyundai Sonata, while the ammunition was found in the car itself. The Sonata had been rented by someone named Tangela Hudson, and a police officer testified that Greer had a tattoo on his left arm that said “Tangela.” On appeal, he argued that using the tattoo to connect him to the car violated his Fifth Amendment right against self-incrimination.

The circuit agreed that the tattoo was “testimonial.” The mere exhibition of a physical trait is not testimonial because it is not a communication that contains an assertion of fact or belief. But here, the tattoo was “used to a very different end” – not to identify Greer, but rather its content – the name “Tangela” – was used to prove that Greer had a relationship with a person of that name, and thus as circumstantial evidence that he had constructive possession of the ammunition in a car rented by Tangela Hudson. It was accordingly both testimonial and incriminating.

But there was nevertheless no Fifth Amendment violation because the tattoo was “not compelled by the government,” even if force or compulsion might have been used by the police to reveal it. The court likened the use of the tattoo to the IRS’ ability to compel production of voluntarily prepared papers. The “voluntary tattooing of an incriminating word to Greer’s arm was, like the voluntary preparation of [tax] documents, not the product of government compulsion.”