493 U.S. 549, 556 (1990)
Maurice M. was hospitalized at three months old with a fractured left femur and other indications of severe physical abuse.1 Hospital personnel observed respondent Bouknight shaking Maurice and handling him improperly.2 This led them to notify the Baltimore City Department of Social Services of suspected child abuse.3 In February 1987, the Department secured a court order removing Maurice from Bouknight's control and placing him in shelter care.4
Several months later, the shelter care order was modified to return Maurice to Bouknight temporarily.5 Following a hearing, the juvenile court declared Maurice a child in need of assistance and placed him under the Department's continuing oversight pursuant to a protective supervision order.6 The order required Bouknight to cooperate with the Department, continue in therapy, participate in parental aid and training programs, and refrain from physically punishing Maurice.7
Eight months later, the Department returned to juvenile court fearing for Maurice's safety.8 BCDSS caseworkers related that Bouknight would not cooperate with them and had in nearly every respect violated the terms of the protective order.9 On April 20, 1988, the court granted BCDSS' petition to remove Maurice from Bouknight's control for placement in foster care.10 BCDSS officials also petitioned for judicial relief from Bouknight's failure to produce Maurice or reveal where he could be found.11 The court issued an order to show cause why Bouknight should not be held in civil contempt for failure to produce the child.12
Maurice was not produced at subsequent hearings.13 At a hearing one week later, Bouknight claimed that Maurice was with a relative in Dallas.14 Investigation revealed that the relative had not seen Maurice.15 The next day, following another hearing at which Bouknight again declined to produce Maurice, the juvenile court found Bouknight in contempt for failure to produce the child as ordered.16 The court directed that Bouknight be imprisoned until she purged herself of contempt by either producing Maurice before the court or revealing to the court his exact whereabouts.17
Bouknight's claim that the contempt order violated the Fifth Amendment was rejected by the juvenile court.18 The Court of Appeals of Maryland vacated the judgment upholding the contempt order.19 The Supreme Court granted certiorari.20
Whether a mother, the custodian of a child pursuant to a court order, may invoke the Fifth Amendment privilege against self-incrimination to resist an order of the juvenile court to produce the child?21
The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself.22 The Fifth Amendment's protection applies only when the accused is compelled to make a testimonial communication that is incriminating.23 The privilege may not be invoked to resist compliance with a regulatory regime constructed to effect the State's public purposes unrelated to criminal law enforcement.24 When a person assumes control over items that are the legitimate object of the government's noncriminal regulatory powers, the custodian accepts the incident obligation to permit inspection and may not claim the privilege.25
No. Bouknight assumed custodial duties related to production of Maurice when she accepted care of the child subject to the conditions of the protective supervision order.26 The order required her to cooperate with BCDSS and be subject to further court orders.27 The Maryland juvenile protection scheme constitutes a broadly directed, noncriminal regulatory regime governing children cared for pursuant to custodial orders.28 Persons caring for children pursuant to such orders are not a selective group inherently suspect of criminal activities.29 The efforts to gain production of Maurice do not focus almost exclusively on conduct which was criminal but instead serve the child's well-being through measures unrelated to criminal investigation.30
The juvenile court order required Bouknight to produce Maurice pursuant to the protective supervision order and subsequent removal order after she had violated nearly every term of the protective order.31 Production is required as part of this regulatory regime.32 The act of production does not allow invocation of the privilege even if it carries some testimonial aspect regarding control.
A mother who is the custodian of a child pursuant to a court order may not invoke the Fifth Amendment privilege against self-incrimination to resist an order of the juvenile court to produce the child.33
Related opinions on this issue
Justice Marshall dissented.34 He argued that Bouknight's production of her son would be testimonial because it would amount to an admission of physical control.35 This would present a real and appreciable threat of self-incrimination given suspicions that Maurice might be dead and the ongoing homicide investigation.36
He contended that the collective entity doctrine does not apply because Bouknight is Maurice's mother exercising parental duties under an agreement with the State rather than an agent of an artificial entity that lacks Fifth Amendment rights.37 Justice Marshall further maintained that the juvenile welfare scheme is intimately related to criminal child abuse statutes and targets a selective group of parents whose children are alleged to be in need of assistance.38 Therefore the privilege should apply under an individualized inquiry rather than the Court's abstract characterization of the regulatory regime.39