United States v. Saechao ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30156
Plaintiff-Appellant,
v.  D.C. No.
CR-03-00447-RAE
PHATA SAECHAO,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
James A. Redden, District Judge, Presiding
Argued and Submitted
March 10, 2005—Portland, Oregon
Filed August 12, 2005
Before: Stephen Reinhardt, Marsha S. Berzon, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Reinhardt
10533
10536 UNITED STATES v. SAECHAO
COUNSEL
Richard A. Friedman, United States Department of Justice,
Washington, DC (Argued); Karen J. Immergut, Frederic N.
Weinhouse, United States Attorney’s Office, Portland, Ore-
gon (On the Briefs), for the plaintiff-appellant.
Lisa Hay, Office of the Federal Public Defender, Portland,
Oregon, for the defendant-appellee.
UNITED STATES v. SAECHAO 10537
OPINION
REINHARDT, Circuit Judge:
I.
The issue on this appeal is whether a probationer who pro-
vides incriminating information to his probation officer in
response to questions from that officer, and does so pursuant
to a probation condition that requires him to “promptly and
truthfully answer all reasonable inquiries” from the officer or
face revocation of his probation, is “compelled” to give
incriminating evidence within the meaning of the Fifth
Amendment. Because we conclude that the state took the “im-
permissible step” of requiring the probationer “to choose
between making incriminating statements and jeopardizing
his conditional liberty by remaining silent,” Minnesota v.
Murphy, 465 U.S. 420, 436 (1984), we hold that his admis-
sion of criminal conduct was compelled by a “classic penalty
situation” and the evidence obtained by the probation officer
may not be used against him in a criminal proceeding. We
therefore affirm the district court’s order suppressing the
fruits of the state’s unlawful conduct.
II.
Phata Saechao pled guilty to a state felony offense and was
sentenced to state probation. The felony, which involved an
act of domestic violence, was his first. The day after his plea,
Saechao met with his intake officer, Heather Fowler, to
review the conditions of his probation. Condition number 11
required Saechao to “promptly and truthfully answer all rea-
sonable inquiries by the Department of Correction or County
Community Correction Agencies,” and condition number 12
prohibited him from possessing “weapons, firearms, or dan-
gerous animals.” The terms of his probation also provided that
failure to comply with any of the conditions was grounds for
arrest, revocation of probation, or modification of conditions.
10538 UNITED STATES v. SAECHAO
Saechao signed the probation form, but was not asked by
Fowler at the time whether he possessed a firearm. After the
intake meeting, Saechao was told to call the domestic vio-
lence unit to report to his assigned probation officer within a
week’s time.
After the intake meeting, Saechao was assigned to Proba-
tion Officer Andrew Altman of the domestic violence unit for
the supervision of his probation. Saechao attempted to contact
Altman several times over the next month and finally had his
first meeting with Altman over a month after his initial intake
interview with Fowler. According to Altman’s testimony, the
meeting was designed to “figure out the personal needs of [the
probationer] . . . , [to] try and assess the compliance with the
conditions of supervision, [to] make sure [the probationer is]
very clear about what the conditions are, [to] review them
again, . . . [and to] get [his] expectations to them.”
Altman began the meeting by reviewing once again the
conditions of Saechao’s probation, including the requirement
that Saechao “promptly and truthfully answer” Altman’s
inquiries. Altman then began the interview, during which he
repeatedly asked whether Saechao possessed a firearm. As a
result of Altman’s questioning, Saechao eventually acknowl-
edged that there was a 30.06 hunting rifle that he used for
deer hunting in the apartment that he shared with his parents,
a rifle that he possessed legally prior to the time of his convic-
tion. Possession of the firearm became illegal under the felon-
in-possession statute upon Saechao’s felony conviction. See
18 U.S.C. § 922(g)(1). Altman later testified that it was clear
from the interview that Saechao had been concerned about the
rifle even before the meeting, but that he “didn’t know what
to do with the firearm. He had paid money for the firearm. It
was worth money, and he hadn’t made a decision what to do
with it at [that] point.”
After Saechao’s admission of “possession,” Altman
explained the seriousness of his conduct and convinced
UNITED STATES v. SAECHAO 10539
Saechao to accompany him and Probation Officer Matthew
Ferguson back to the apartment Saechao shared with his par-
ents so that the officers could remove the rifle. After speaking
with his parents, Saechao directed the officers to a room
where Altman and Ferguson confiscated an unloaded 30.06
hunting rifle from underneath the mattress. Altman and Fer-
guson then left. Saechao was not arrested at the time.
Altman later discussed the case with his supervisor and
decided that instead of excusing Saechao’s violation, or even
pursuing a revocation of probation, they would turn the evi-
dence over to the federal authorities so that they could initiate
a federal prosecution against him for possession of a firearm
by a convicted felon. Altman acknowledged that the referral
to federal authorities was not routine.1 A month later, the fed-
eral authorities arrested Saechao and charged him with being
a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1).
The district court granted Saechao’s motion to suppress his
statements to Altman. It found that Saechao “did not have free
choice to refuse to answer questions about firearms precisely
because those questions related to a specific condition of his
probation.” United States v. Saechao, No. CR 03-447-RE (D.
Or. Mar. 5, 2004) (opinion and order granting the defendant’s
motion to suppress statements). Thus, the district court con-
cluded, the statements were “compelled,” in violation of the
Fifth Amendment to the United States Constitution. The
United States appeals the suppression order.
1
Probation Officer Ferguson, who worked with Altman, explained that
when a probation officer first meets with a probationer and learns that he
is in possession of a rifle, “it is kind of a rule of thumb” that the probation
officer give the probationer “24 hours to have someone else take posses-
sion of the rifle, get it out of the home . . . give [them] some time to get
that disposed of” instead of filing for revocation of probation or other
criminal proceedings outright.
10540 UNITED STATES v. SAECHAO
III.
We must determine whether Saechao was compelled by
threat of penalty to answer his probation officer’s questions
regarding his possession of firearms. In Murphy, the Supreme
Court explained that if a state attaches “[t]he threat of punish-
ment for reliance on the privilege” against self-incrimination
by asserting either “expressly or by implication . . . that invo-
cation of the privilege would lead to revocation of probation
. . . the probationer’s answers would be deemed compelled
and inadmissible in a criminal prosecution.” Id. at 435(emphasis added). Because the state of Oregon took the “im-
permissible step” of “requir[ing] [Saechao] to choose between
making incriminating statements and jeopardizing his condi-
tional liberty by remaining silent,” we hold that Saechao’s
statements were compelled and therefore inadmissible in the
ensuing criminal prosecution. Id. at 436.
[1] As a general rule, “the [Fifth] Amendment speaks of
compulsion. . . . If [an individual] desires the protection of the
privilege, he must claim it or he will not be considered to
have been ‘compelled’ within the meaning of the Amend-
ment.” Id. at 427 (quoting United States v. Monia, 317 U.S.
424, 427 (1943) (first alteration in original) (internal quota-
tion marks omitted)). There are, however, exceptions to this
rule. The Court has held that if an individual is subjected to
a practice that “den[ies him] . . . a ‘free choice to admit, to
deny, or to refuse to answer,’ ” then any statement he makes
is considered involuntary and cannot be used in a criminal
proceeding. Garner v. United States, 424 U.S. 648, 657
(1976) (quoting Lisenba v. California, 314 U.S. 219, 241
(1941)). In these cases, the Fifth Amendment is considered
“self-executing,” and an individual does not need to invoke it
in order to have his admissions suppressed in an ensuing
criminal prosecution. Murphy, 465 U.S. at 435.
[2] One instance in which an individual is held to have
been denied the free choice to admit, to deny, or to refuse to
UNITED STATES v. SAECHAO 10541
answer is what the Court refers to as a “penalty situation.”2 Id.If an individual’s refusal to answer incriminating questions
subjects him to a penalty, then the Fifth Amendment is self-
executing and any statements made under threat of such pen-
alty are inadmissible.3 In the probationary context, this means
that although the state is permitted to require a probationer to
“appear and discuss matters affecting his probationary status,”
the probationer may not be required under threat of revocation
of probation to respond to “questions put to [him], however
relevant to his probationary status, [that] call for answers that
would incriminate him in a pending or later criminal proceed-
ing.” Id. The key to whether the Fifth Amendment is self-
executing in probation cases lies in the following statement by
the Court: “[I]f the State, either expressly or by implication,
asserts that invocation of the privilege would lead to revoca-
tion of probation, it would have created the classic penalty sit-
uation, the failure to assert the privilege would be excused,
and the probationer’s answers would be deemed compelled
2
Other exceptions include custodial interrogations and gambler’s excise
taxes, neither of which is relevant to our analysis. See Murphy, 465 U.S.
at 429, 439.
3
Addressing these penalty cases, “the Court has held that loss of job,
loss of state contracts, loss of future contracting privileges with the state,
loss of political office, loss of the right to run for political office in the
future, and revocation of probation all are ‘penalties’ that cannot be
imposed on the exercise of the privilege.” United States v. Frierson, 945
F.2d 650, 658 (3d Cir. 1991); see Lefkowitz v. Cunningham, 431 U.S. 801(1977) (finding attorney’s Fifth Amendment immunity violated when the
State divested him of his state political party office for refusing to waive
his constitutional immunity before a grand jury); Uniformed Sanitation
Men Ass’n v. Comm’r of Sanitation, 392 U.S. 280 (1968) (finding Fifth
Amendment violation when city employees were discharged for invoking
Fifth Amendment privilege against self-incrimination); Gardner v.
Broderick, 392 U.S. 273 (1968) (finding Fifth Amendment violation when
police officer was threatened with and subsequently discharged from
employment if he did not waive his Fifth Amendment immunity in con-
junction with a grand jury investigation); Garrity v. New Jersey, 385 U.S.
493 (1967) (finding Fifth Amendment violation when police officers gave
coerced confessions under threat of discharge).
10542 UNITED STATES v. SAECHAO
and inadmissible in a criminal prosecution.” Id. (emphasis
added). As the Supreme Court explained, in order for a court
to determine whether a probationer is subject to a penalty situ-
ation, it “must inquire whether [his] probation conditions
merely required him to appear and give testimony about mat-
ters relevant to his probationary status or whether they went
further” by taking “the extra, impermissible step” of requiring
him “to choose between making incriminating statements and
jeopardizing his conditional liberty by remaining silent.” Id.
at 436.
Although the Supreme Court in Murphy set forth the gov-
erning legal standard for a classic penalty situation, it ulti-
mately found that Murphy’s admission was not compelled
under threat of penalty because of the particular nature of his
probation conditions. The Supreme Court first found that
Murphy’s probation conditions did not actually require him to
answer his probation officer’s inquiry. Id. at 437. The Court
noted that Murphy’s conditions required him only to “be
truthful with his probation officers in all matters,” and did not
impose any affirmative obligation to respond to his probation
officer’s questions: “On its face, [the] probation condition
proscribed only false statements; it said nothing about his
freedom to decline to answer particular questions . . . .” Id. at
436, 437. In light of the limitations of Murphy’s probation
condition, and the state’s subsequent insistence that “it would
not, and legally could not,” on the basis of a “be truthful” con-
dition, “revoke probation for refusing to answer questions
calling for information that would incriminate in separate
criminal proceedings,” the Court concluded that Murphy
could not have been objectively or subjectively “deterred
from claiming the privilege by a reasonably perceived threat
of revocation.” Id. at 438-39. Unlike in the case of Murphy,
Saechao was compelled by threat of penalty to answer the
probation officer’s inquiry about firearms. The terms of his
probation compelled him to answer “all reasonable inquiries.”4
4
We construe “reasonable” to be a limitation regarding relevance. The
questions must bear a reasonable relationship to a subject of legitimate
UNITED STATES v. SAECHAO 10543
The Oregon probation condition at issue was, thus, categori-
cally different from the “be truthful” condition in Murphy. See
Murphy, 465 U.S. at 422. Not only was Saechao required to
be truthful to his probation officers, but he was expressly
required, under penalty of revocation, to “promptly . . .
answer all reasonable inquiries.” Contrary to the govern-
ment’s contentions, there is a significant difference between
being required to be “truthful with . . . probation officer in all
matters,” Murphy, 465 U.S. at 422 (internal quotation marks
omitted), and being required to “promptly and truthfully
answer all reasonable inquiries.” Whereas the former “sa[ys]
nothing about [a probationer’s] freedom to decline to answer
particular questions” and “proscribe[s] only false statements,”
the latter specifically penalizes a refusal to “answer particular
questions.” Murphy, 465 U.S. at 437. In contrast to Murphy,
who the Supreme Court found was free to remain silent as
long as he was truthful when he spoke, Saechao did not have
the luxury of remaining silent without violating the conditions
of his probation. Failure to answer a relevant inquiry regard-
ing the conditions of probation would have justified the revo-
cation of his probation.
The government argues that a probationer is subject to
threat of penalty only when the state explicitly announces that
it will impose a penalty for the invocation of his Fifth Amend-
ment rights — that an announcement that it will punish him
for any failure to answer a question is not sufficient. In order
to violate Murphy, the government asserts, Oregon must spe-
cifically state to the probationer: “we will revoke your proba-
tion if you invoke your Fifth Amendment privilege.” We
reject the government’s argument. Not only is it contrary to
the plain language of the Supreme Court’s decision in Mur-
inquiry. The government does not contend, quite correctly, that the reason-
ableness requirement excuses failures to respond to questions that would
elicit incriminating information or permits the invocation of the Fifth
Amendment.
10544 UNITED STATES v. SAECHAO
phy, but also to the Oregon state court’s interpretation of its
own probation conditions.
[3] Murphy held that a penalty situation is created if there
is a “reasonable basis for concluding that [the state] attempted
to attach an impermissible penalty to the exercise of the privi-
lege against self-incrimination.” Id. at 437. Murphy also
explained that a state creates a classic penalty situation if it
“expressly or by implication” suggests “that invocation of the
privilege would lead to revocation of probation.” Id. at 435(emphasis added). Here, Saechao was required, as a condition
of his probation, to “promptly and truthfully answer all rea-
sonable inquiries.” In requiring answers to all such inquiries,
the condition makes no exception for the invocation of the
Fifth Amendment and, thus, by implication forecloses a pro-
bationer’s ability to exercise that right by remaining silent. In
light of the particular conditions applicable to Oregon proba-
tioners, there is certainly a reasonable basis under Murphy for
a probationer to conclude that, although the invocation of the
Fifth Amendment is not explicitly prohibited, an exercise of
that right by invoking the privilege or simply by remaining
silent would constitute grounds for revocation of probation.
The government’s argument also runs counter to the inter-
pretation of Oregon’s probation conditions by the Oregon
state courts.5 In State v. Gaither, 100 P.3d 768, 769 (Or. Ct.
App. 2004), rev. denied, 113 P.3d 435 (Or. 2005), the Oregon
Court of Appeals held that statements elicited by a probation
officer were “compelled” even though there was no express
reference to the Fifth Amendment privilege in the probation
conditions. The probationer in Gaither was not specifically
5
In Murphy, the Court was influenced by the fact that Minnesota, the
state that imposed the probation conditions, represented that it could not
(and would not) have revoked the defendant’s probation had the proba-
tioner invoked the Fifth Amendment. Id. at 438-39. Here Oregon has made
no similar representation. To the contrary, the Oregon courts have
declared that a refusal to provide the requested information can result in
a probation revocation.
UNITED STATES v. SAECHAO 10545
informed that under the terms of his Oregon probation he
could be punished if he asserted his right to remain silent, and
he was not specifically threatened with probation revocation
or other penalties if he invoked the privilege. Nevertheless,
addressing probation conditions that required the defendant to
“promptly and truthfully answer all reasonable inquiries” and
“fully disclose his sexual history and provide a list of all . . .
prior victims,” the state court held that the probationer was
given an impermissible choice in violation of Murphy. Id. at
770, 772-73. In so finding, the Oregon court implicitly held
both that an express declaration that the probationer may not
invoke the Fifth Amendment is not required, and that an invo-
cation of the privilege does not constitute compliance with
Oregon’s probation conditions. It concluded that under the
terms of his probation, Gaither “had no choice other than to
disclose or face revocation of probation.” Id. at 772. In so
doing, the Oregon court necessarily determined that Oregon
“legally could . . . revoke probation for refusing to answer
questions calling for information that would incriminate in
separate criminal proceedings.” Murphy, 465 U.S. at 438.6
6
The government argues that the Gaither decision actually supports its
position because it affirms State v. Tenbusch, 886 P.2d 1077 (Or. Ct. App.
1994). It asserts that Tenbusch is an authoritative state court interpretation
that the probation conditions involved here do not penalize Saechao for
refusing to answer and remaining silent. Tenbusch, however, involved a
condition that simply required the probationer to submit to a polygraph
examination about his sexual history and his compliance with the other
terms of his probation. Id. at 1078. Like Murphy, the state court found that
the conditions’ “overriding focus . . . [was] on truthfulness” and “not mak-
ing false statements,” and did not actually require the probationer to
answer incriminating questions. Id. at 1082 (emphasis removed). Unlike
the conditions involved in Tenbusch, Saechao was affirmatively required
to answer all inquiries. The “third option” of invoking and exercising the
right to remain silent, which the Tenbusch court found available in that
case, was foreclosed here by the applicable probation condition. See id. at
1083. Although Tenbusch contains language that could be read as requir-
ing a specific reference to the Fifth Amendment in the probation condi-
tions, such a reading would be entirely inconsistent with its affirmation in
Gaither. The purported reading is erroneous for two other reasons. First,
Tenbusch acknowledges Murphy’s ruling that “[i]f the State, either
10546 UNITED STATES v. SAECHAO
The government next puts a slightly different twist on its
basic argument by asserting that even if Oregon’s probation
conditions foreclosed Saechao’s ability simply to remain
silent, and required him to answer the probation officer’s
inquiry, Saechao could have satisfied the conditions by
“promptly answer[ing] the question by invoking the privilege,
or promptly ask[ing] for clarification, or promptly seek[ing]
legal advice on whether the privilege applies.” We reject this
creative recasting of its argument.
The government’s contention is based on an incorrect read-
ing of the probation condition at issue. Saechao was required
to “promptly and truthfully answer all reasonable inquiries.”
The condition did not simply require a prompt statement of
some kind — such as a statement setting forth a reason for not
answering the question. Rather, the condition expressly
requires an answer to the question being asked. A verbal
invocation of the right to remain silent followed by the act of
not responding to incriminating questions is, by definition,
not answering a question, let alone providing a prompt and
truthful answer. A refusal to answer, even if it could somehow
be called an answer, constitutes neither a truthful nor an
untruthful response. It is non-substantive in nature. For that
reason alone, invoking the privilege, asking for clarification,
or seeking legal advice, could not satisfy the requirement for
a prompt and truthful answer.
[4] The Eleventh Circuit, confronted with a nearly identical
probation condition, explicitly rejected the argument that by
“answering” a probation officer’s inquiry with an invocation
of the Fifth Amendment, the probationer would comply with
expressly or by implication, asserts that invocation of the privilege would
lead to revocation of probation, it would have created the classic penalty
situation . . . .” Tenbusch, 886 P.2d at 1082 (quoting Murphy, 465 U.S. at
435) (emphasis added). Second, a penalty directed to “a failure to answer
questions” meets any reasonable specificity requirement regarding the
exercise of the right to remain silent.
UNITED STATES v. SAECHAO 10547
an obligation to answer or respond to his probation officer’s
inquiries and thereby avoid a revocation of his probation. In
United States v. Robinson, 893 F.2d 1244 (11th Cir. 1990),
the court considered a federal probation condition that
required probationers to “report and to give an account of
[himself] and to respond completely and truthfully to ques-
tions asked by the probation officer.” Id. 1244-45 (alteration
in original) (internal quotation marks omitted) (emphasis
added). When Robinson was asked a question that required an
incriminating response, he followed the course of conduct
proposed by the government in this case and invoked the Fifth
Amendment. See id. at 1244. That invocation, however,
promptly led the government to seek the revocation of Robin-
son’s probation, which the district court granted and the Elev-
enth Circuit affirmed. See id. at 1244-45. Interpreting the
condition in the manner there requested by the government,
the Eleventh Circuit held that invoking the Fifth Amendment
did not constitute a response to a question, but rather was “a
refusal to answer that violated an express condition of proba-
tion.” Id. at 1245 (quoting Murphy, 465 U.S. at 435 n.7). The
Eleventh Circuit ruled that by asserting the privilege the pro-
bationer failed to comply with the condition requiring him to
answer his probationer officer’s inquiries, and “that such fail-
ure alone can justify revocation of probation.” Id. (quoting
United States v. Morin, 889 F.2d 328, 332 (1st Cir. 1989)).
[5] In light of the Eleventh Circuit’s holding in Robinson
and that circuit’s acceptance of the United States’ position
that invoking the Fifth Amendment does not constitute com-
pliance with a condition similar to that at issue here, we reject
its assertion of the contrary argument in this case. We find it
troubling that the United States, having successfully sought
revocation of probation in the past for the very conduct that
it suggests Saechao should have engaged in here, now assures
us unabashedly that such conduct would not justify the revo-
cation of Saechao’s probation.
[6] In sum, we hold that the district court did not err in sup-
pressing the fruits of the state’s impermissibly coercive pen-
10548 UNITED STATES v. SAECHAO
alty threat. Saechao was indeed “compelled” to incriminate
himself under threat of probation revocation. He was
instructed on two occasions that his probation conditions
required him, inter alia, to “promptly and truthfully answer
all reasonable inquiries” and the terms of his probation pro-
vided that a failure to comply could result in its revocation.
Moreover, the state did not advise him that “it would not, [or]
legally could not, revoke probation for refusing to answer
questions calling for information that would incriminate in
separate criminal proceedings.” Murphy, 465 U.S. at 438. To
the contrary, the state court’s holding in Gaither (as well as
the ruling that the government elicited from the Eleventh Cir-
cuit in Robinson) confirms that such a revocation is possible
and could be pursued by the state. Thus, we conclude that,
unlike in Murphy, the probation conditions in this case consti-
tute an attempt by the state “to attach an impermissible pen-
alty to the exercise of the privilege against self-
incrimination.” Id. at 437. The evidence obtained in this case
was properly suppressed by the district court.
IV.
The Fifth Amendment proscribes the use in a separate
criminal proceeding of a statement obtained pursuant to a pro-
bation condition that requires a probationer to “choose
between making incriminating statements and jeopardizing
his conditional liberty by remaining silent.” Id. at 436. If, by
virtue of its probation conditions, a state expressly or implic-
itly penalizes the exercise of the right to remain silent, then
the probationer’s answers to incriminating questions posed by
his probation officer are deemed compelled and are inadmissi-
ble in ensuing criminal proceedings. See id. at 435. Oregon’s
probation conditions provide for precisely such a penalty.
Accordingly, we affirm the district court’s decision to sup-
press the evidence obtained as a result of Saechao’s inculpa-
tory responses to his probation officers’ inquiries.
Affirmed.