## Facts

- Christopher Slavin, a New York state prisoner, was convicted of attempted murder, assault, and aggravated harassment arising from an attack on two Mexican day laborers.
- After arrest, police required Slavin to be photographed without a shirt, revealing tattoos associated with white-supremacist imagery.
- The tattoo photographs were shown to the grand jury and later similar photographs were introduced at trial to support motive and ideology evidence.
- Slavin moved in state court to dismiss the indictment and suppress the use of the tattoo photographs, asserting violations of the Fourth, Fifth, and Sixth Amendments; the motion was denied.
- The conviction was affirmed on direct review by New York appellate courts.
- Slavin petitioned for federal habeas relief under 28 U.S.C. § 2254, challenging the constitutional use and collection of the tattoo photographs.

## Issues

1. Whether using photographs of Slavin’s tattoos to show white-supremacist ideology constituted compelled testimonial evidence barred by the Fifth Amendment.
2. Whether requiring Slavin to remove his shirt for tattoo photography after he indicated he was represented by counsel violated the Sixth Amendment right to counsel.
3. Whether compelled exposure and photography of tattoos constituted an unreasonable search under the Fourth Amendment.
4. Whether the state courts’ rejection of these claims was contrary to, or an unreasonable application of, clearly established Supreme Court precedent under 28 U.S.C. § 2254(d).

## Decision

- The district court denied the § 2254 petition in its entirety.
- The court held Slavin failed to show the state courts’ rulings on the Fifth, Sixth, and Fourth Amendment claims were contrary to, or an unreasonable application of, clearly established Supreme Court law, or rested on an unreasonable determination of facts.
- The court granted a certificate of appealability only as to the Fifth Amendment self-incrimination claim.

## Legal Principles

- Under AEDPA, federal habeas relief is unavailable unless the state adjudication is contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or is based on an unreasonable factual determination. (28 U.S.C. § 2254(d))
- The Fifth Amendment privilege against self-incrimination protects against compelled testimonial communications; compelled display or recording of physical characteristics is generally not testimonial.
- Routine evidence-collection procedures involving physical characteristics are generally not “critical stages” requiring counsel’s presence for Sixth Amendment purposes.
- A compelled, minimally intrusive exposure and documentation of observable physical features incident to arrest may be reasonable under the Fourth Amendment, particularly when tied to legitimate evidentiary purposes.

## Conclusion

The court denied habeas relief because the state courts reasonably treated tattoo photography and its evidentiary use as involving physical, non-testimonial characteristics and because, under AEDPA’s deferential standard, Slavin did not establish an objectively unreasonable application of clearly established Supreme Court law; a certificate of appealability issued only on the Fifth Amendment question.


Slavin v. Artus, No. 05-CV-870 (JS), 2010 WL 185108 (E.D.N.Y. Jan. 8, 2010)