of the Fifth Amendment do not apply to physical characteristics such as the giving of a blood sample, voice sample, or handwriting exemplar. Pennsylvania v. Muniz, 496 U.S. 582, 595-98, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990); United States v. Dionisio, 410 U.S. 1, 7, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The key distinction as to whether the Fifth Amendment applies is whether the incriminating communications, verbal or physical, are testimonial in nature. United States v. Hubbell, 530 U.S. 27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). Toliver likens this case to the situation in Hubbell where the Supreme Court held that the mere act of producing documents, in some cases, may b 6-47 (4th Cir.2006) (<HOLDING>). Here, except for the GARRY scar tattoo, the
holding that where the district courts sentencing decision was amply supported by the evidence and the defendant thus received a sentence merited by the evidence the defendant could not show the error affected his substantial rights holding that a demonstration by the defendant that he could not physically wear the fanny pack as alleged by the police is not testimonial evidence holding that because the court could not consider police reports it could not rely on an attorneys argument based on the police report as the basis for determining the statutory basis for a conviction holding that an essential interest specific to the defendant is required to physically restrain a defendant during his trial holding that a suspect who continued walking when approached by a police officer did not submit until physically restrained by the officer