People v. Havner, 20 N.Y.3d 387 (2013)
The Fifth Amendment privilege against self-incrimination protects an individual from being compelled to produce evidence if the act of production itself is testimonial (revealing subjective knowledge) and incriminating, unless the government can demonstrate that the information would inevitably have been discovered through independent means.
Summary
Havner was ordered to surrender all firearms as part of a protective order. He surrendered an unlicensed handgun, leading to a criminal charge for illegal possession. The New York Court of Appeals held that Havner’s surrender was privileged under the Fifth Amendment because the act of producing the gun was both testimonial (admitting knowledge and possession) and incriminating (providing evidence of illegal possession). The court reasoned that the police were unaware of the specific handgun before Havner’s disclosure, and the act of production itself provided the incriminating evidence.
Facts
On April 8, 2005, Havner was charged with assault, burglary, and kidnapping related to a domestic violence incident. The Town Court issued a protective order requiring him to stay away from the victim and surrender all firearms.
After posting bail, Havner surrendered his “long guns” to the police.
Havner initially claimed his handgun was with his ex-wife, but she denied possessing it and said she last saw it at his home, possibly unlicensed.
Havner later called police, stating he found the handgun and showed them its location in his home.
The police confirmed the handgun was unlicensed.
Procedural History
Havner was charged with criminal possession of a weapon in the fourth degree in Jefferson Town Court.
He moved to suppress the gun and his statements, arguing Fifth Amendment privilege.
The Town Court granted the motion and dismissed the charges.
County Court reversed, reinstating the charge, finding the order involved physical evidence, not compelled communication.
The New York Court of Appeals granted leave to appeal.
Issue(s)
Whether Havner’s surrender of the handgun, pursuant to a court order, was privileged under the Fifth Amendment right against self-incrimination, thus requiring suppression of the evidence in the weapon possession prosecution.
Holding
Yes, because the act of producing the unlicensed handgun was testimonial (revealing defendant’s subjective knowledge of its existence and location) and incriminating (providing proof of illegal possession), and the prosecution failed to prove inevitable discovery of the evidence through independent means.
Court’s Reasoning
The Fifth Amendment protects against compelled self-incrimination, requiring both compulsion and testimonial evidence. Here, compulsion existed because of the court order. The critical question was whether surrendering the handgun was “testimonial” or merely producing “real or physical evidence.”
While physical evidence itself isn’t generally protected, the “act of production” can be if it communicates information. The Supreme Court has developed a two-part test:
1. Is the act of production sufficiently testimonial? Evidence is testimonial if it reveals defendant’s subjective knowledge or thought processes. Surrender can concede existence or possession when unknown to authorities and not discoverable independently.
2. Is the act of production incriminating? Does it pose a “realistic threat of incrimination”? Both elements must be met for Fifth Amendment protection.
Here, the court found the surrender was testimonial because the police were unaware of the specific handgun before Havner’s disclosure. Havner’s statements were integral to complying with the order. The People hadn’t shown they were independently investigating the handgun or that the ex-wife would have alerted them without Havner’s initial statement.
The surrender was also incriminating, as it provided proof of illegal possession, occurring during a felony prosecution without immunity.
Because both elements were met, Havner’s Fifth Amendment rights were violated, requiring suppression and dismissal. The court emphasized that “the act was the exclusive source of evidence the People relied on in pursuing the prosecution for criminal possession of a weapon.”
The court distinguished this case from regulatory regimes (like in *Baltimore City Dept. of Social Servs. v. Bouknight*) designed for non-law enforcement purposes, noting that the People did not argue that exception applied here. The court noted that any argument concerning the applicability of the regulatory regime exception was both unpreserved and waived.