People v. Tom , 59 Cal. 4th 1210 ( 2014 )

Filed 8/14/14
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S202107
v. )
) Ct. App. 1/3 A124765
RICHARD TOM, )
) San Mateo County
Defendant and Appellant. ) Super. Ct. No. SC064912
____________________________________)
)
In re RICHARD TOM, ) Ct. App. 1/3 A130151
)
on Habeas Corpus. ) San Mateo County
____________________________________) Super. Ct. No. SC064912
On a clear evening in February 2007, defendant Richard Tom broadsided at
high speed a vehicle driven by Loraine Wong, who was making a left turn from
Santa Clara Avenue onto Woodside Road in Redwood City. Wong‘s younger
daughter, Sydney Ng, eight, was killed; her older daughter, Kendall Ng, 10,
sustained serious injuries. The evidence at trial showed that defendant did not
brake prior to the crash. He had been speeding, although his precise speed was
disputed. He had been drinking earlier that evening, although (again) the amount
he had consumed was disputed.
The issue before us arises from the People‘s reliance in their case-in-chief
on defendant‘s failure to inquire about the occupants of the other vehicle as
evidence that he was driving without due regard for their safety. Did it violate the
Fifth Amendment privilege against self-incrimination to admit evidence that
defendant, following his arrest but before receipt of Miranda1 warnings, expressed
no concern about the well-being of the other people involved in the collision?
The issue is one of first impression for this court. However, a plurality of
the high court recently addressed the ―closely related‖ issue of prearrest silence in
Salinas v. Texas (2013) 570 U.S. ___, ___ [133 S. Ct. 2174, 2182] (plur. opn. of
Alito, J.) (Salinas), and we find that analysis instructive. Declaring that ―[t]he
privilege against self-incrimination ‗is an exception to the general principle that
the Government has the right to everyone‘s testimony,‘ ‖ the Salinas plurality
applied ―the ‗general rule‘ that a witness must assert the privilege to subsequently
benefit from it.‖ (Id. at pp. ___ [133 S.Ct. at pp. 2179, 2181] (plur. opn. of Alito,
J.).) We likewise apply the general rule here and conclude that defendant, after his
arrest but before he had received his Miranda warnings, needed to make a timely
and unambiguous assertion of the privilege in order to benefit from it. Because
the Court of Appeal held that the Fifth Amendment privilege against self-
incrimination categorically prohibited any reference to defendant‘s postarrest
failure to inquire about the others involved in the collision without ever
considering whether defendant had clearly invoked the privilege, we reverse the
judgment of the Court of Appeal and remand for further proceedings.
BACKGROUND
Defendant was charged with gross vehicular manslaughter while
intoxicated, driving under the influence causing harm to another, and driving with
a blood-alcohol level of 0.08 percent or higher causing harm to another, along
with various enhancement allegations. A jury acquitted defendant of the alcohol-
related charges but convicted him of vehicular manslaughter with gross negligence
1
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2
and found true the allegation that he personally inflicted great bodily injury on
Kendall Ng. (Pen. Code, § 192, subd. (c)(1); id., former § 12022.7, subd. (a).)
The court sentenced defendant to seven years in prison.
Events Surrounding the Fatal Collision
Defendant spent the early evening of February 19, 2007, entertaining his
longtime friend Peter Gamino, a retired San Francisco police officer who was
visiting from out of state. Defendant cooked a steak dinner at his Redwood City
home and, after waking Gamino from a nap around 5:30 or 6:00 p.m., made them
vodka tonics. Around 6:30 p.m., Gamino made another round of drinks. He did
not know whether defendant finished that drink.
After dinner, defendant announced that they needed to pick up a vehicle
from his son‘s home just north of Woodside Road. Gamino testified that
defendant exhibited no signs of intoxication, but admitted defendant had trouble
finding his son‘s house: ―We didn‘t get there right away. Couldn‘t find our—the
way. We eventually found it.‖ On the return trip, defendant drove his Mercedes
E320, and Gamino followed 100 to 150 yards behind in the Toyota Camry they
had picked up at the son‘s house. Gamino was traveling at the speed limit.
As the two cars turned from Alameda de las Pulgas onto Woodside Road,
defendant was about 200 yards ahead. Gamino accelerated on Woodside, but
defendant remained ―a ways ahead.‖
Meanwhile, Loraine Wong had left her home on Santa Clara Avenue in
Redwood City to drive her daughters to an overnight visit at her sister‘s house in
Sunnyvale. Her sister, Geneva, had a new baby, and the girls were excited to see
their new cousin. They were bringing some books they had purchased at Barnes
and Noble that evening.
As they left the house, Wong called Geneva to let her know that they were
on their way. Wong had completed the call by the time she reached the
3
intersection of Santa Clara Avenue and Woodside (a two-lane divided state
highway) less than a mile away, but the phone was still in her hand. Wong came
to a full stop at the stop sign and inched forward, looking both ways. Her lights
and blinker were on. She first looked left, and saw it was clear all the way to
Alameda de las Pulgas, four-tenths of a mile away. She looked right, where it was
also clear. Turning back to the left, she still saw no headlights or vehicles coming
and began her turn onto Woodside. Wong, who had lived on Santa Clara Avenue
for 15 years, had driven through this intersection several thousand times before.
This time was different. Suddenly, there was a flash of light, a feeling of
soreness, and the pressure of the airbag. She had not seen headlights or heard any
sound of braking, but Wong realized they had been hit. She looked outside but did
not see any cars around her. She looked back and saw her daughters were
unconscious and their faces were bleeding. As Wong climbed into the backseat,
people nearby came to offer assistance. Wong shouted out her husband‘s phone
number for someone to call him. Kendall regained consciousness, but Sydney
never did. Sydney was pronounced dead at Stanford Hospital at 8:53 p.m. The
cause of death was multiple blunt injuries. Kendall suffered a three-inch gash on
her forehead, which was closed with 30 to 40 stitches, and a broken arm. She had
to use a brace for her injured neck and spent a week in the hospital. Wong
suffered internal injuries, a broken rib, and a broken finger. Pieces of broken glass
had scratched her face, arms, knees, and feet.
Sergeant Alan Bailey of the Redwood City Police Department received a
report of the crash at 8:20 p.m. and arrived at the scene 10 minutes later. Wong‘s
vehicle, a 1996 Nissan Maxima, was badly damaged. The point of contact was the
left rear quarter panel and passenger door, where there was a ―massive intrusion.‖
The left rear passenger window and the rear windshield were shattered; the front
windshield was broken. Defendant‘s vehicle, a 2006 Mercedes E320, was
4
considerably north of the intersection, about 200 feet from the Nissan. Bailey
testified that it was ―incredible to see those vehicles that far apart in an accident
that occurred in the city,‖ where the posted speed limit is 35 miles per hour. The
Mercedes had suffered major damage to its front end, a cracked windshield, a
broken left-side mirror, and a couple of flat tires. Based on the circumstances at
the scene, Bailey concluded that the Nissan had come from Santa Clara Avenue in
a westbound direction turning left onto Woodside; the Mercedes had come north
on Woodside ―[e]xtremely fast,‖ ―[n]ot even close‖ to the speed limit; and there
was a broadside collision.
Officer Janine O‘Gorman, who arrived about an hour after Bailey, was
assigned to be the lead investigator for this incident. She found no evidence that
the Mercedes had applied its brakes prior to impact.2 Based on the glass
fragments, she opined that the Nissan had spun at least 360 degrees following the
impact. She testified that although defendant‘s view of the intersection would
have been partially obstructed by the Dodge Caravan parked on the corner of
Woodside and Santa Clara as well as by the Arco sign at the corner gas station, in
that those objects would have made it harder to see cars turning left onto
Woodside, defendant was driving recklessly and was responsible for the collision.
Officer Jincy Pace, a traffic accident investigator with the San Jose Police
Department, agreed that the Mercedes barreled into the left rear portion of the
Nissan and spun it around and that the primary cause of the collision was the
Mercedes‘s unsafe speed. Using a conservatively low ―drag factor‖ (a
measurement of the frictional relationship between the tire and the roadway), Pace
calculated the Mercedes was traveling at a speed of at least 67 miles per hour prior
2
Neighbor Nico Roundy testified that he did not hear any braking before the
―really loud bang‖ at the intersection.
5
to the collision; the Nissan was traveling about 12 miles per hour. Pace estimated
that the Mercedes would have been at least 334 feet away from the intersection at
the time the Nissan began its turn and opined that the Nissan would thus have had
the right of way. Pace estimated that the Nissan would have been in the
intersection for at least three to four and one-half seconds prior to the collision,
which would have given the Mercedes enough time to stop even if it were
speeding at 67 miles per hour.
Defendant‘s friend Peter Gamino, on the other hand, testified that the
Nissan pulled out from Santa Clara Avenue ―fairly fast‖ and ―instead of stopping
like [it] should have, [the Nissan] drove right in front of [defendant].‖ However,
Gamino conceded that he did not recall mentioning to officers at the scene that the
Nissan drove right in front of defendant.
Defendant’s Postcollision Conduct
Right after the collision, Gamino parked and went over to defendant‘s car
to see if he was all right. Defendant said, ―I didn‘t even see it.‖ Once the
paramedics arrived, Gamino returned to the Camry.
Defendant was behind the wheel of the Mercedes when police first arrived.
Two paramedics, one in the front seat and one in the back, were attending to
defendant. Officer Josh Price had a brief conversation with defendant but did not
detect any odor of alcohol. When defendant‘s girlfriend arrived and he got out of
the car, he was limping slightly and complained of an ankle injury. The
paramedics tried to convince defendant to go to the hospital to be examined, but
defendant declined because he was concerned that his insurance would not cover
it.
At some point, defendant and his girlfriend walked over and got into
Gamino‘s Camry. About 15 minutes later, Officer Price walked over to the Camry
to talk to Gamino. Defendant interrupted them to ask whether he could walk
6
home, as he lived only half a block away. Price told him ―no,‖ since the
investigation ―obviously‖ was ongoing and he was needed at the scene. When
defendant said his ankle hurt, he was given an ice pack. Despite the
recommendation of the paramedics that he seek treatment, defendant signed a
form declaring that he had refused to seek treatment ―against medical advice.‖
Around 9:30 p.m., when Sergeant Bailey discovered that defendant was
sitting in the Camry, he ordered defendant be moved to the rear of a patrol vehicle.
Defendant‘s girlfriend was allowed to join him in the backseat. He was not
handcuffed. In accordance with the police department‘s general policy to ask for a
voluntary blood sample when a major injury collision has occurred (and to obtain
a detailed statement from defendant), Sergeant Bailey asked defendant whether he
would cooperate. Defendant said he would, although he seemed irritated that his
blood could not be drawn at the scene. Defendant and his girlfriend were
transported to the police station so that defendant‘s blood could be drawn. They
arrived at 9:57 p.m. A paramedic was dispatched to the police station around
10:00 p.m., but Redwood City‘s contract with American Medical Response did not
authorize a blood draw for suspicion of driving under the influence unless the
suspect had first been placed under arrest. When Officer Price asked whether
defendant would be willing to go to the hospital to get his blood drawn, defendant
again seemed irritated. Defendant asked whether he could refuse and was told it
would be in his interest to prove that he had nothing in his system.
Shortly thereafter, around 10:30 p.m., defendant asked to use the bathroom.
He was accompanied there by Sergeant Bailey. While in the bathroom, defendant,
who was limping, asked for an aspirin. Bailey, who was in ―very close proximity‖
to defendant, for the first time noticed the odor of alcohol on his breath and the
bloodshot and glassy appearance of his eyes. Back in the interview room, Officer
Price likewise noticed the odor of alcohol on defendant, who had been chewing
7
gum at the crash scene and at the station. Officer Roman Gomez, too, smelled
alcohol and noticed that defendant‘s eyes were bloodshot and glassy. Officer
Price administered three field sobriety tests (the horizontal gaze nystagmus test,
the Romberg test, and the finger-to-nose test), concluded that defendant had been
under the influence of alcohol at the time of the collision, and arrested him.
During his contact with Officer Price and Sergeant Bailey, defendant never asked
them about the welfare of the other people involved in the collision.
Defendant‘s blood was drawn at 11:13 p.m., around three hours after the
crash. The test revealed a blood-alcohol level of 0.04 percent. Using a burnoff
rate of 0.02 percent of alcohol per hour (which is a rate widely accepted in the
scientific community) and taking account of the steak dinner consumed by
defendant as well as the other circumstances, criminalist Carlos Jose Jiron opined
that defendant must have consumed six drinks and that his blood-alcohol level at
the time of the crash was 0.098 percent. In Jiron‘s opinion, defendant would have
been too impaired to drive safely.
Police Interview of Peter Gamino
Sergeant Paul Sheffield went to defendant‘s house around 11:30 p.m. to
speak with defendant‘s houseguest, Peter Gamino. The interview was taped and
played for the jury. Sergeant Sheffield noticed a large bottle of vodka, ―much
bigger than a fifth,‖ in the kitchen. The bottle was two-thirds empty. Gamino,
who was awakened by the police visit, seemed to have ―had a drink or two.‖
Gamino initially told police that he and defendant had nothing to drink during
dinner, then admitted they had a ―cocktail or so,‖ but ―no idea‖ how many.
Gamino eventually claimed defendant had no more than two drinks, but he did not
know whether defendant had anything to drink before he started making dinner.
In describing defendant‘s driving prior to the collision, Gamino told police that
although he and defendant were only a car length apart while waiting for the light
8
at the intersection of Alameda de las Pulgas and Woodside, defendant ―was a long
ways in front‖ of him after the turn onto Woodside. Indeed, Gamino had just
made the turn when the crash occurred. Acknowledging the large vodka bottle
that was more than half empty and the four missing tonic bottles, Gamino said,
―Oh no, no, no, no. That was yesterday.‖
Defense Case
Kent E. Boots, who was retired from the Orange County Sheriff‘s
Department and now performs collision reconstruction, disputed the drag factor
calculation on which the prosecution‘s experts relied. He also denied that a driver
on Woodside could lose his right of way because of excessive speed.
Traffic accident reconstructionist Christopher David Kauderer estimated
that the Mercedes‘s pre-impact speed was between 49 and 53 miles per hour and
the Nissan‘s pre-impact speed was between 7 and 9 miles per hour. He opined
that the driver of the Nissan entered the roadway suddenly, violating the
Mercedes‘s right of way, and that the driver of the Mercedes did not have
sufficient time to react. Kauderer did not believe there was enough information to
assign an appropriate drag factor to the Mercedes; the estimated drag factor had
been the basis for the prosecution expert‘s estimate of the Mercedes‘s speed.
Forensic toxicologist Kenneth Allen Mark questioned the prosecution
expert‘s estimate of defendant‘s blood-alcohol level at the time of the collision, an
estimate that relied on retrograde extrapolation. Because retrograde extrapolation
depends on so many factors that were unknown in this case, such as defendant‘s
burnoff rate, how much food he had consumed and how quickly, the size of his
liver, his physiological or emotional state, and whether defendant was in the
absorption or elimination phase, Mark testified that it would not be possible to
determine, with any degree of certainty, what defendant‘s blood-alcohol level had
been at the time of the collision. In Mark‘s opinion, defendant‘s blood-alcohol
9
level at the time of the crash could have been as low as 0.01 or 0.02 percent. The
fact that no one detected the odor of alcohol until 10:30 p.m. was consistent with a
blood-alcohol level of substantially less than 0.08 percent at the time of the crash.
Mark did concede, however, that the odor of vodka is less detectable than that of
other liquor and that chewing gum would make detection even more difficult.
Mark also stated that the field sobriety tests performed here would not necessarily
indicate impairment from alcohol, since those are ―highly variable‖ tests and could
have been affected by defendant‘s ankle injury.
Paramedic Daniel Giraudo arrived at the scene at 8:24 p.m. He testified
that defendant had a perfect score on a test of alertness. Giraudo did not smell
alcohol on defendant, and he did not recall whether defendant was chewing gum at
the time.
Rebuttal
Officer David Johnson, who was trained in accident reconstruction,
testified that Kauderer‘s model vastly understated the Mercedes‘s pre-impact
speed, since the model would imply a drag factor so unreasonably low as to equate
to vehicles skidding on ice. Based on the damage to the vehicles, their points of
rest, and other information, Johnson estimated that the circumstances were
consistent with a pre-impact speed for the Mercedes of 67 miles per hour.
Johnson further estimated that it would have taken Wong six to nine seconds to
look left, right, and left again before pulling out into the intersection and then
another three seconds to get to the point of impact. Under those assumptions, the
Mercedes would have been between 884 and 1179 feet away, too far away to be
perceived as a hazard.
Arguments of Counsel Concerning Defendant’s Failure to Inquire
Both sides mentioned in argument to the jury the evidence of defendant‘s
postarrest, pre-Miranda silence.
10
The district attorney found it ―particularly offensive‖ that defendant ―never,
ever asked, hey, how are the people in the other car doing? Not once. . . . Now,
you step on somebody‘s toe or you bump into someone accidentally, what is your
first thing out of your mouth? Whoops. I‘m sorry. I‘m not saying that he has to
say sorry as an expression of his guilt or as some kind of confession, but simply as
an expression of his regret. Look, I‘m sorry those people were hurt. [¶] Not
once. Do you know how many officers that he had contact with that evening?
Not a single one said that, hey, the defendant asked me how those people were
doing. Why is that? Because he knew he had done a very, very, very bad thing,
and he was scared. [¶] He was scared or—either that or too drunk to care.‖
Defense counsel argued in response that ―there was a big point made of
Richard Tom didn‘t ask about the condition of the people in the other vehicle. He
didn‘t care. He wasn‘t telling the officers—asking the officers, what happened?
What‘s going on? How are those other people? [¶] And I ask you: What‘s that
go to do with anything? Does that help prove to you any element of the offense?
They kind of stuck it there under consciousness of guilt. Does that have anything
to do with the way you‘re supposed to look at the evidence in this case? No. It‘s
there to make you dislike Mr. Tom, make you think he‘s a bad person, therefore,
get you closer to deciding he‘s the one who caused this accident. [¶] My response
to that, by the way, would be, police know at 8:53 there‘s a fatality in this case. I
asked . . . Sergeant Bailey, Officer Price, did you ever tell Richard Tom this was—
there was a fatality, between 8:53 and his arrest around eleven o‘clock? They
didn‘t. Of course they didn‘t. Why would they. But you can‘t simultaneously
blame him for not asking and not blame them for not telling.‖
The Court of Appeal Decision
The Court of Appeal consolidated the appeal (A124765) with a petition for
writ of habeas corpus (A130151). Although defendant did not object on Fifth
11
Amendment grounds to the evidence that he failed to inquire about the occupants
of the other vehicle (nor did he object to the prosecutor‘s argument on that basis),
the Court of Appeal addressed the merits of the Fifth Amendment claim and
reversed the judgment. The Court of Appeal concluded that defendant was under
de facto arrest when he was transported to the police station in a patrol vehicle at
9:48 p.m.; that ―the right of pretrial silence under Miranda is triggered by the
inherently coercive circumstances attendant to a de facto arrest‖; that the trial
court therefore erred in admitting evidence in the prosecution‘s case-in-chief of
defendant‘s postarrest, pre-Miranda failure to inquire about the welfare of the
occupants of the other vehicle; and that the error was prejudicial under Chapman
v. California (1967) 386 U.S. 18. As to whether defendant ever invoked his
privilege against self-incrimination, the court said simply that ― ‗the defendant
who stands silent must be treated as having asserted it.‘ ‖ (Quoting U.S. v. Moore
(D.C.Cir. 1997) 104 F.3d 377, 384.)
We granted the People‘s petition for review. Our grant was limited to the
admissibility of defendant‘s postarrest silence under the Fifth Amendment. No
party challenged in the petition for review, the answer to the petition, or the
extensive briefing here the Court of Appeal‘s decision to address the Fifth
Amendment claim on the merits, nor does the Court of Appeal‘s conclusion on
this procedural point present an issue worthy of review. (Cal. Rules of Court,
rules 8.500(b)(1), 8.516(a), (b); Southern Cal. Ch. Of Associated Builders etc.
Com. v. California Apprenticeship Council (1992) 4 Cal. 4th 422, 431, fn. 3.) We
therefore will accept the lower court‘s conclusion that defendant‘s claim is
cognizable (see People v. Weiss (1999) 20 Cal. 4th 1073, 1076-1077) and turn to
the issue presented in the petition for review—namely, whether the trial court
violated the Fifth Amendment privilege against self-incrimination by admitting
evidence that defendant, during the period following his arrest but prior to receipt
12
of Miranda warnings, failed to inquire about the welfare of the occupants of the
other vehicle.
DISCUSSION
The Fifth Amendment‘s self-incrimination clause states that ―[n]o person
. . . shall be compelled in any criminal case to be a witness against himself.‖ (U.S.
Const., 5th Amend.) The clause does not, however, ―establish an unqualified
‗right to remain silent.‘ ‖ (Salinas, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2183]
(plur. opn. of Alito, J.).) ―By definition, ‗a necessary element of compulsory self-
incrimination is some kind of compulsion.‘ ‖ (Lakeside v. Oregon (1978) 435
U.S. 333, 339.) The ―sole‖ form of compulsion targeted by the Fifth Amendment
privilege is ―governmental coercion‖—not ― ‗moral and psychological pressures
. . . emanating from sources other than official coercion‘ ‖ or the absence of ― ‗free
choice‘ in any broader sense of the word.‖ (Colorado v. Connelly (1986) 479 U.S.
157, 170.)
The high court has found governmental coercion where, for example, the
prosecutor invites the jury to draw adverse inferences from a defendant‘s failure to
take the witness stand. (Griffin v. California (1965) 380 U.S. 609 (Griffin).)
Although Griffin included a general statement that the Fifth Amendment ―forbids
either comment by the prosecution on the accused‘s silence or instructions by the
court that such silence is evidence of guilt‖ (Griffin, supra, 380 U.S. at p. 615), the
court has since clarified that the ―broad dicta in Griffin . . . must be taken in the
light of the facts of that case‖—a prosecutor‘s comment on a defendant‘s right not
to testify at trial. (United States v. Robinson (1988) 485 U.S. 25, 33-34.)
Consequently, the Fifth Amendment privilege against self-incrimination
does not categorically bar the prosecution from relying on a defendant‘s pretrial
silence. The prosecution may use a defendant‘s pretrial silence as impeachment,
provided the defendant has not yet been Mirandized. (Fletcher v. Weir (1982) 455
13
U.S. 603 [postarrest silence]; Jenkins v. Anderson (1980) 447 U.S. 231 (Jenkins)
[prearrest silence]; cf. Doyle v. Ohio (1976) 426 U.S. 610 [postarrest, post-
Miranda silence is not admissible as impeachment].) The prosecution may also
use a defendant‘s prearrest silence in response to an officer‘s question as
substantive evidence of guilt, provided the defendant has not expressly invoked
the privilege. (Salinas, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2178] (plur. opn.
of Alito, J.).) Whether postarrest, pre-Miranda silence in the absence of custodial
interrogation may likewise be admitted as substantive evidence of guilt—and thus
render a defendant‘s uncompelled silence admissible as substantive evidence of
guilt or impeachment—has not yet been resolved by this court or the United States
Supreme Court.
As noted by both parties, there is a split in the federal circuits and among
state courts as to whether the Fifth Amendment bars the government from offering
evidence in its case-in-chief of a defendant‘s postarrest, pre-Miranda silence, even
where the silence purports to be an assertion of the privilege against self-
incrimination. (See U.S. v. Pando Franco (5th Cir. 2007) 503 F.3d 389, 395, fn. 1
[noting the split]; compare State v. Johnson (Minn.Ct.App. 2012) 811 N.W.2d
136, 148 [because arrestee ―was under no government-imposed compulsion to
speak,‖ evidence of his silence ―did not implicate the Fifth Amendment‖] with
State v. Mainaaupo (Hawaii 2008) 178 P.3d 1, 18-20 [comment on arrestee‘s
exercise of his right to remain silent violated the 5th Amend.].) The People argue
that use of a defendant‘s postarrest, pre-Miranda exercise of the privilege in the
absence of custodial interrogation raises no issue of governmental compulsion and
thus is not barred by the Fifth Amendment. (See, e.g., U.S. v. Frazier (8th Cir.
2005) 408 F.3d 1102, 1111 [because ―an arrest by itself is not governmental action
that implicitly induces a defendant to remain silent,‖ the admission of defendant‘s
postarrest, pre-Miranda silence ―in the government‘s case-in-chief as evidence of
14
guilt did not violate his Fifth Amendment rights‖]; U.S. v. Rivera (11th Cir. 1991)
944 F.2d 1563, 1568; Ordway v. Commonwealth (Ky. 2013) 391 S.W.3d 762, 778
[―Where ‗no governmental action induce[s] the defendant to remain silent[,]‘ the
Miranda-based fairness rationale does not control‖]; People v. Schollaert
(Mich.Ct.App. 1992) 486 N.W.2d 312, 316 [because ―defendant‘s silence . . . did
not occur during a custodial interrogation situation, nor was it in reliance on the
Miranda warnings,‖ it ―was not a constitutionally protected silence‖]; State v.
Johnson, supra, 811 N.W.2d at p. 148 [―the state did not compel Johnson ‗to
speak at the time of his silence‘ ‖]; State v. Byrne (Vt. 1988) 542 A.2d 667, 670
[―As the arresting officer appears only to have commented on pre-Miranda
silence, this eliminates defendant‘s claim under the federal constitution‖]; see
generally Jenkins, supra, 447 U.S. at pp. 243-244 (conc. opn. of Stevens, J.)
[―When a citizen is under no official compulsion whatever, either to speak or to
remain silent, I see no reason why his voluntary decision to do one or the other
should raise any issue under the Fifth Amendment‖].) Defendant, like the Court
of Appeal, counters that the protections of the Fifth Amendment privilege attach
as soon as the defendant is in custody (or even earlier), and do not depend on the
commencement of custodial interrogation. (See, e.g., U.S. v. Velarde-Gomez (9th
Cir. 2001) 269 F.3d 1023, 1029 [―the government may not burden that right by
commenting on the defendant‘s post-arrest silence at trial‖]; U.S. v. Moore, supra,
104 F.3d at p. 385 [―neither Miranda nor any other case suggests that a
defendant‘s protected right to remain silent attaches only upon the commencement
of questioning as opposed to custody‖]; U.S. v. Burson (10th Cir. 1991) 952 F.2d
1196, 1200 [―silence . . . exhibited in a non-custodial interrogation‖ is protected by
the Fifth Amendment]; State v. Mainaaupo, supra, 178 P.3d at p. 18 [quoting
Velarde-Gomez and Moore].)
15
We need not resolve the split in authority as to whether the Fifth
Amendment bars use of a defendant‘s postarrest, pre-Miranda exercise of the
privilege against self-incrimination in the absence of custodial interrogation. Even
assuming the privilege against self-incrimination protects against evidentiary use
of postarrest silence in this context, the high court has ―long acknowledged‖
(Minnesota v. Murphy (1984) 465 U.S. 420, 427) that the privilege ―is not self-
executing‖ and ―may not be relied upon unless it is invoked in a timely fashion‖
(Roberts v. United States (1980) 445 U.S. 552, 559). We conclude that defendant
had the burden to establish that he clearly invoked the privilege here.
A
In Davis v. United States (1994) 512 U.S. 452, the high court held that a
suspect who wishes to invoke the right to counsel during a custodial interview
must ―do so unambiguously.‖ (Id. at p. 459.) ―Although a suspect need not
‗speak with the discrimination of an Oxford don‘ [citation], he must articulate his
desire to have counsel present sufficiently clearly that a reasonable police officer
in the circumstances would understand the statement to be a request for an
attorney.‖ (Ibid.) To avoid difficulties of proof and to provide guidance to
officers conducting interrogations—who must promptly cease questioning once a
suspect has invoked the right to counsel—the inquiry is an objective one. (Id. at
pp. 458-459.)
Berghuis v. Thompkins (2010) 560 U.S. 370 (Berghuis) considered the
standard required to invoke the privilege against self-incrimination during a
custodial interrogation. Declaring that ―there is no principled reason to adopt
different standards for determining when an accused has invoked the Miranda
right to remain silent and the Miranda right to counsel at issue in Davis,‖ the high
court concluded that an accused who wants to invoke the right to remain silent
must likewise ―do so unambiguously.‖ (Berghuis, supra, 560 U.S. at p. 381.) ―A
16
requirement of an unambiguous invocation of Miranda rights results in an
objective inquiry that ‗avoid[s] difficulties of proof and . . . provide[s] guidance to
officers‘ on how to proceed in the face of ambiguity. [Citation.] If an ambiguous
act, omission, or statement could require police to end the interrogation, police
would be required to make difficult decisions about an accused‘s unclear intent
and face the consequences of suppression ‗if they guess wrong.‘ ‖ (Berghuis,
supra, 560 U.S. at pp. 381-382.)
Salinas then applied the objective invocation rule outside the context of a
custodial interrogation. In that case, police visited Genovevo Salinas at his home
as part of a murder investigation. Salinas agreed to hand over his shotgun for
ballistics testing and to accompany police to the station for questioning. The
parties agreed that the interview was noncustodial and that Salinas had not been
provided with Miranda warnings. Salinas answered most of the questions during
the interview. But when asked whether his shotgun would match the shotgun
shells recovered at the murder scene, Salinas ― ‗[l]ooked down at the floor,
shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to
tighten up.‘ ‖ (Salinas, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2178] (plur. opn.
of Alito, J.).) He then answered the officer‘s remaining questions. (Ibid.)
Salinas did not testify at trial, but the prosecution used his silence in
reaction to the interview question about the shotgun as evidence of his guilt.
(Salinas, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2178] (plur. opn. of Alito, J.).)
The Supreme Court granted certiorari to resolve the split of authority as to
―whether the prosecution may use a defendant‘s assertion of the privilege against
self-incrimination during a noncustodial police interview as part of its case in
chief,‖ but the plurality ―found it unnecessary to reach that question‖ ―because
petitioner did not invoke the privilege during his interview.‖ (Id. at p. ___ [133
S.Ct. at p. 2179] (plur. opn. of Alito, J.).)
17
The Salinas plurality began its analysis by explaining that ―[t]he privilege
against self-incrimination ‗is an exception to the general principle that the
Government has the right to everyone‘s testimony.‘ [Citation.] To prevent the
privilege from shielding information not properly within its scope, we have long
held that a witness who ‗ ―desires the protection of the privilege . . . must claim
it‖ ‘ at the time he relies on it.‖ (Salinas, supra, 570 U.S. at p. ___ [133 S.Ct. at p.
2179] (plur. opn. of Alito, J.).)3 Salinas failed to do so. He answered the officer‘s
questions for most of the interview, declined to answer whether his shotgun would
match the shells recovered at the murder scene, and then offered answers to the
officer‘s remaining questions. (Id. at p. ___ [133 S.Ct. at p. 2178] (plur. opn. of
Alito, J.).) There was no violation of the Fifth Amendment in admitting evidence
of the defendant‘s silence, the plurality concluded, ―because he did not expressly
invoke the privilege against self-incrimination in response to the officer‘s
question.‖ (Ibid.)
In justifying the application of the objective invocation rule in this new
context, the plurality relied on the same two concerns the court had identified in
previous cases—i.e., the need to avoid difficulties of proof and the need to provide
guidance to law enforcement officers. (Salinas, supra, 570 U.S. at p. ___ [133
3
Justice Alito‘s plurality opinion was joined by Chief Justice Roberts and
Justice Kennedy. Justice Thomas, joined by Justice Scalia, concurred separately,
expressing the view that Griffin was wrongly decided and therefore ―Salinas‘
claim would fail even if he had invoked the privilege because the prosecutor‘s
comments regarding his precustodial silence did not compel him to give self-
incriminating testimony.‖ (Salinas, supra, 570 U.S. at p. ___ [133 S.Ct. at p.
2184] (conc. opn. of Thomas, J.).) Because the circumstances in which the
plurality opinion deemed prearrest silence to be admissible—i.e., when the
defendant has not expressly invoked the privilege—is a logical subset of the
concurring opinion‘s view that prearrest silence is admissible regardless of
whether the defendant invoked the privilege, the rule set forth in the plurality
opinion states the holding of the court. (See Marks v. United States (1977) 430
U.S. 188, 193; U.S. v. Epps (D.C.Cir. 2013) 707 F.3d 337, 348-351.)
18
S.Ct. at p. 2179] (plur. opn. of Alito, J.).) The objective invocation requirement
―ensures that the Government is put on notice when a witness intends to rely on
the privilege so that it may either argue that the testimony sought could not be
self-incriminating [citation] or cure any potential self-incrimination through a
grant of immunity [citation].‖ (Ibid.) The requirement ―also gives courts tasked
with evaluating a Fifth Amendment claim a contemporaneous record establishing
the witness‘ reasons for refusing to answer.‖ (Salinas, supra, 570 U.S. at p. ___
[133 S.Ct. at p. 2179] (plur. opn. of Alito, J.).)
Subsequent to Salinas, the Sixth Circuit held that the objective invocation
rule applies not only when the suspect, prior to arrest, declines to answer a
question, but also ―where, as here, the silence did not occur in response to
interrogation.‖ (Dis. opn. of Liu, J., post, at p. 12.) In Abby v. Howe (6th Cir.
2014) 742 F.3d 221, Abby‘s fiancée testified for the prosecution, without
objection, that he was hiding at her house when police came to interview her and
that ―although he probably could hear her talking to the detectives, Abby opted to
stay concealed in a bedroom.‖ (Id. at p. 224.) A ― ‗running theme‘ ‖ of the
prosecution‘s argument to the jury (id. at p. 227), again without an objection, was
―that Abby hid in the bedroom rather than talking to the police while they were at
[the fiancée]‘s house‖ (id. at p. 224). The court concluded that Abby could not
have been prejudiced by counsel‘s failure to object to the evidence of Abby‘s
prearrest silence ―because we now know that such an objection would be futile in
light of Salinas.‖ (Id. at p. 228.)
An unpublished decision of the Texas Court of Appeals then applied the
objective invocation rule to a defendant‘s postarrest, pre-Miranda silence. In
Torres v. State (Tex.App. June 12, 2014, No. 10-12-00263-CR) 2014 Tex. App.
LEXIS 6354, a police officer spotted several items in the defendant‘s vehicle that
matched the description of items reported stolen and testified that the defendant
19
offered no explanation as to why those items were in the back of his vehicle. (Id.
at pp. *7-*8.) Relying on Salinas, the court concluded that the defendant ―did not
invoke his Fifth Amendment rights when he refused to offer an explanation to
police for the items found in the back seat of the vehicle.‖ (Id. at p. *9; see also
U.S. v. Jones (E.D.N.Y. Mar. 11, 2014, No. 13-CR-438 (NGG)) 2014 U.S. Dist.
LEXIS 32032, *17-*18 [postarrest silence was admissible where arrestee, who
―initiated conversation‖ pre-Miranda ―and then fell quiet after a brief back and
forth,‖ did not unequivocally assert the privilege].)
We likewise conclude that the objective invocation rule applies to
defendant‘s postarrest, pre-Miranda silence. (U.S. v. Graves (4th Cir. Jan. 13,
2014, No. 12-4416) 2014 U.S. App. LEXIS 617, *12 [describing Salinas as a
decision ―[d]rawing no distinction between the invocation requirements before and
after custody and Miranda warnings‖].) Here, as in the situations discussed
above, the objective invocation rule ― ‗avoid[s] difficulties of proof and . . .
provide[s] guidance to officers‘ on how to proceed in the face of ambiguity.‖
(Berghuis, supra, 560 U.S. at p. 381.) Without clear notice a suspect has invoked
the privilege, the police would be deprived of the opportunity to ―cure any
potential self-incrimination through a grant of immunity.‖ (Salinas, supra, 570
U.S. at p. ___ [133 S.Ct. at p. 2179] (plur. opn. of Alito, J.).) Moreover, because
an invocation of the privilege must be ― ‗scrupulously honored‘ ‖ (Michigan v.
Mosley (1975) 423 U.S. 96, 104), a defendant who is deemed to have validly
invoked the privilege may not be interrogated thereafter unless counsel has first
been made available to the defendant or the defendant initiates further
communications with the police. (People v. Sims (1993) 5 Cal. 4th 405, 440.) If
an ambiguous act, omission, or statement could qualify as an invocation, ―police
would be required to make difficult decisions about an accused‘s unclear intent
and face the consequences of suppression ‗if they guess wrong.‘ ‖ (Berghuis,
20
supra, 560 U.S. at p. 382.) Accordingly, the threshold inquiry in assessing the
scope of the privilege against self-incrimination in the postarrest, pre-Miranda
context is whether a reasonable police officer in the circumstances would
understand that the defendant had invoked the privilege either at or prior to the
silence at issue. (See Davis v. United States, supra, 512 U.S. at p. 459; accord,
People v. Musselwhite (1998) 17 Cal. 4th 1216, 1238; cf. U.S. v. Okatan (2d Cir.
2013) 728 F.3d 111, 118 [the threshold inquiry concerning the admissibility of
prearrest silence is ―whether the defendant‘s silence constituted an ‗assertion of
the privilege against self-incrimination‘ ‖].)
B
The general rule that a witness who intends to rely on the privilege against
self-incrimination must clearly invoke it has two ―well-defined‖ exceptions.
(Minnesota v. Murphy, supra, 465 U.S. at p. 429; see also Salinas, supra, 570 U.S.
at p. ___ [133 S.Ct. at p. 2179] (plur. opn. of Alito, J.).) Neither applies here.
First, a criminal defendant need not take the stand and assert the privilege at
his or her own trial. (Salinas, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2179]
(plur. opn. of Alito, J.), citing Griffin, supra, 380 U.S. at pp. 613-615.) An
unambiguous invocation of the privilege at trial ―would serve no purpose; neither
a showing that his testimony would not be self-incriminating nor a grant of
immunity could force him to speak.‖ (Salinas, supra, 570 U.S. at p. [133 S.Ct. at
p. 2179] (plur. opn. of Alito, J.).) The Griffin exception does not apply here, and
defendant does not contend otherwise.
Second, ―a witness‘ failure to invoke the privilege must be excused where
governmental coercion makes his forfeiture of the privilege involuntary.‖
(Salinas, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2180] (plur. opn. of Alito, J.).)
This exception applies when the government forces a choice between self-
incrimination and some important public benefit such as public employment
21
(Garrity v. New Jersey (1967) 385 U.S. 493, 496-498), public office (Lefkowitz v.
Cunningham (1977) 431 U.S. 801, 804-806), or public contracts (Lefkowitz v.
Turley (1973) 414 U.S. 70, 84-85). (See Salinas, supra, 570 U.S. at p. ___ [133
S.Ct. at p. 2180] (plur. opn. of Alito, J.).) This exception can apply also when a
regulatory regime makes the act of invoking the privilege—thereby identifying
oneself to the government—inherently incriminating. (Leary v. United States
(1969) 395 U.S. 6, 28-29; Albertson v. Subversive Activities Control Bd. (1965)
382 U.S. 70, 79.) And this exception can arise most commonly in the ―inherently
coercive environment created by . . . custodial interrogation‖ (Pennsylvania v.
Muniz (1990) 496 U.S. 582, 599), where the Miranda court took the
―extraordinary safeguard‖ of disallowing use in the case-in-chief of unwarned
statements elicited during such interrogation. (Minnesota v. Murphy, supra, 465
U.S. at p. 430.) ―Due to the uniquely coercive nature of custodial interrogation, a
suspect in custody cannot be said to have voluntarily forgone the privilege ‗unless
[he] fails to claim [it] after being suitably warned.‘ ‖ (Salinas, supra, 570 U.S. at
p. ___ [133 S.Ct. at p. 2180] (plur. opn. of Alito, J.).)
Defendant, like Justice Liu‘s dissent, seizes on the last of these scenarios,
seeking to distinguish Salinas on the ground that the defendant there was deemed
not to be in custody. But custody alone—in this case, a de facto arrest4—does not
deny an individual ― ‗a ―free choice to admit, deny, or refuse to answer.‖ ‘ ‖
(Minnesota v. Murphy, supra, 465 U.S. at p. 429.) To the contrary, the high court
has rejected the contention that ― ‗an arrest, by itself, is governmental action which
implicitly induces a defendant to remain silent‘ ‖ (Fletcher v. Weir, supra, 455
4
Defendant was not formally arrested until approximately 11:00 p.m. The
Court of Appeal determined that the restraint on defendant‘s freedom of
movement ripened into a de facto arrest at 9:48 p.m., when police transported him
and his girlfriend in a patrol vehicle to the police station for a blood test and
interview.
22
U.S. at p. 606, quoting Weir v. Fletcher (6th Cir. 1981) 658 F.2d 1126, 1131) and
has emphasized that the uniquely coercive environment that triggers the Miranda
protections occurs ―not where a suspect is simply taken into custody, but rather
where a suspect in custody is subjected to interrogation. ‗Interrogation,‘ as
conceptualized in the Miranda opinion, must reflect a measure of compulsion
above and beyond that inherent in custody itself.‖ (Rhode Island v. Innis (1980)
446 U.S. 291, 300.) Neither defendant nor the dissent explains how the de facto
arrest here ―deprived [him] of the ability to voluntarily invoke the Fifth
Amendment.‖ (Salinas, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2180] (plur.
opn. of Alito, J.); cf. Jenkins, supra, 447 U.S. at p. 240 [―no governmental action
induced petitioner to remain silent before arrest‖].)
The line between custody and custodial interrogation is a significant one.
According to the United States Supreme Court, Miranda—and the custodial
interrogation on which it relies—represents ―a limited exception to the rule that
the privilege must be claimed.‖ (Roberts v. United States (1980) 445 U.S. 552,
560 (Roberts).) Because the high court has instructed that ―the exception [to the
objective invocation rule] does not apply outside the context of the inherently
coercive custodial interrogations for which it was designed‖ (ibid.), we decline to
extend the exception beyond its boundaries and therefore conclude that the
objective invocation rule applies here.
Indeed, Roberts itself applied the objective invocation rule to a defendant
who had been arrested. In that case, evidence was admitted at sentencing that the
defendant had refused over a period of three years, preceding and following his
arrest, to cooperate with the investigation of a criminal conspiracy in which he was
a confessed participant. (Roberts, supra, 445 U.S. at pp. 553, 557.) In response to
the defendant‘s complaint that use of his silence punished him for exercising his
Fifth Amendment privilege against self-incrimination, the high court recognized,
23
as we do here, that the privilege ―is not self-executing‖ and ―may not be relied
upon unless it is invoked in a timely fashion.‖ (Roberts, supra, 445 U.S. at p.
559.) Berghuis, too, applied the general invocation rule to an arrestee who
answered some questions and then fell silent. (Berghuis, supra, 560 U.S. at pp.
381-382.) The Salinas plurality relied on both Roberts and Berghuis as support
for the objective invocation rule. (Salinas, supra, 570 U.S. at pp. ___ [133 S.Ct. at
pp. 2181-2182] (plur. opn. of Alito, J.).)
Where a defendant could have invoked his privilege against self-
incrimination at any point—but failed to do so—the prosecution‘s use in its case-
in-chief of the defendant‘s postarrest, pre-Miranda silence in the absence of
interrogation cannot be deemed a ―penalty . . . for exercising a constitutional
privilege‖ within the meaning of Griffin, supra, 380 U.S. at page 614. Nor does
use of a defendant‘s postarrest, pre-Miranda silence in the absence of interrogation
subject him to the ―cruel trilemma‖ of incriminating himself, lying, or
demonstrating his guilt by silence. (Murphy v. Waterfront Comm’n (1964) 378
U.S. 52, 55.) No such quandary arises because he could have invoked his
privilege against self-incrimination without penalty at any point before or after his
arrest.
C
Although Salinas emphatically refused to adopt a ―third exception‖ to ―the
‗general rule‘ that a witness must assert the privilege to subsequently benefit from
it‖ (Salinas, supra, 570 U.S. at p. ___ [133 S.Ct. at pp. 2180-2181] (plur. opn. of
Alito, J.)), Justice Liu‘s dissent depends entirely on the recognition of such an
exception. In the view of the dissent, all postarrest, pre-Miranda silence should be
inadmissible, even though ―the true reason‖ for the custodial silence may be
―something other‖ than the intent to invoke the privilege in an individual case.
(Dis. opn. of Liu, J., post, at p. 18.) It is difficult to square the dissent‘s approach
24
with its concession that the Fifth Amendment ―protects silence that constitutes an
exercise of the privilege against self-incrimination, not silence attributable to other
reasons.‖ (Id. at p. 11.)
To reconcile those two positions, Justice Liu‘s dissent theorizes that
Salinas‘s reliance on the general rule was ―premised on the relatively uncertain
reasons for silence in the noncustodial context,‖ and posits that silence after an
arrest ―gives rise to a much stronger inference of reliance on the Fifth Amendment
privilege.‖ (Dis. opn. of Liu, J., post, at p. 17.) But the application of the
objective invocation rule in Salinas rested not on the likelihood that a suspect in
general might wish to rely on the privilege in the prearrest context, but on the fact
that Salinas ―alone knew why he did not answer the officer‘s question.‖ (Salinas,
supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2182] (plur. opn. of Alito, J.).) Indeed,
Salinas explicitly acknowledged ―that reliance on the Fifth Amendment privilege
is the most likely explanation for silence in a case such as this one,‖ yet deemed
that likelihood to be insufficient to justify an exception to the general rule. (Ibid.,
italics added.) Although a suspect, before or after arrest, may choose to remain
silent in reliance on the constitutional privilege, the suspect may also be silent
―because he is trying to think of a good lie, because he is embarrassed, or because
he is protecting someone else. Not every such possible explanation is probative of
guilt, but neither is every possible explanation protected by the Fifth
Amendment.‖ (Ibid.) To distinguish between those silences that are protected by
the privilege from those that are not, it is the defendant‘s ― ‗burden . . . to make a
timely assertion of the privilege.‘ ‖ (Ibid.) Here, as in most other contexts, the
protections of the privilege hinge on whether the defendant clearly invoked the
privilege—―popular misconceptions notwithstanding.‖ (Ibid.)
Moreover, the ― ‗the general principle that the Government has the right to
everyone‘s testimony‘ ‖ (Salinas, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2183]
25
(plur. opn. of Alito, J.)) unquestionably applies to testimony by silence. As
Salinas made clear, the objective invocation rule ―applies with equal force,‖
―regardless of whether prosecutors seek to use silence or a confession that
follows.‖ (Id. at p. ___ [133 S.Ct. at p. 2182] (plur. opn. of Alito, J.).)
D
Defendant relies heavily on two pre-Miranda5 decisions, People v. Cockrell
(1965) 63 Cal. 2d 659 and In re Banks (1971) 4 Cal. 3d 337, to argue that his
postarrest silence was inadmissible, but his reliance is misplaced. Both cases
involved the admissibility of silence in the face of custodial interrogation. In
Cockrell, it was the defendant‘s postarrest silence in the face of an officer‘s
question as to ―what he had to say about‖ a codefendant‘s accusation. (Cockrell,
supra, 63 Cal.2d at p. 669.) Anticipating the Miranda decision, we said that the
Fifth Amendment ―proscribes drawing an inference adverse to the defendant from
his failure to reply to an accusatory statement if the defendant was asserting his
constitutional privilege against self-incrimination‖ and that the privilege could be
recognized in the context of custodial interrogation even if the defendant did not
―express[ly] claim‖ it. (Cockrell, supra, 63 Cal.2d at pp. 669-670, italics added;
accord, Salinas, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2180] (plur. opn. of
Alito, J.).) In Banks, it was the use of a defendant‘s silence in the face of an
accusation and search of his person by a police officer and in the face of an
accusation by a witness viewing the defendant at a postarrest police lineup.
(Banks, supra, 4 Cal.3d at pp. 345, 347.) The People conceded that Cockrell
applied to the defendant‘s silence in the face of the accusation at the postarrest
5
Cockrell was tried and convicted in January 1963 (People v. Cockrell,
supra, 63 Cal.2d at p. 662); Banks was tried and convicted in August 1962 (In re
Banks, supra, 4 Cal.3d at p. 340). In People v. Rollins (1967) 65 Cal. 2d 681, 686,
we decided to follow ―the conclusion of the United States Supreme Court that
Miranda should not extend to trials which began before June 13, 1966.‖
26
lineup but argued that it did not apply to his silence in the face of the police
officer‘s accusation, given that the defendant had not yet been formally arrested at
the time the police officer searched him. (Banks, supra, 4 Cal.3d at p. 352.) We
held that the prohibition on commenting on a defendant‘s silence in the face of
custodial interrogation ―certainly‖ applies where ― ‗a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way,‘ ‖
even if he ―may not have been formally arrested at the moment the police began to
search him.‖ (Ibid., quoting Miranda, supra, 384 U.S. at p. 444; see generally
California v. Beheler (1983) 463 U.S. 1121, 1125 [―the ultimate inquiry‖ as to
―whether a suspect is ‗in custody‘ ‖ under Miranda is ―whether there is a ‗formal
arrest or restraint on freedom of movement‘ of the degree associated with a formal
arrest‖].) Neither case considered the admissibility of a defendant‘s postarrest,
pre-Miranda silence prior to custodial interrogation or whether the burden was on
the defendant to invoke the privilege in those circumstances.
Indeed, none of the cases cited by defendant or his amicus curiae analyzes
the threshold question whether the privilege must be timely and unambiguously
invoked if the defendant wishes to bar use of postarrest, pre-Miranda silence that
occurs in the absence of custodial interrogation. In many of the cited cases, the
defendant actually invoked his rights. (U.S. v. Okatan, supra, 728 F.3d at p. 118
[―Okatan successfully asserted the privilege when he told [the Border Patrol agent]
that he wanted a lawyer‖]; Combs v. Coyle (6th Cir. 2000) 205 F.3d 269, 286
[―Combs clearly invoked the privilege against self-incrimination by telling the
officer to talk to his lawyer, thus conveying his desire to remain silent without a
lawyer present‖]; U.S. v. Burson, supra, 952 F.2d at p. 1200 [―we have little
trouble in concluding Mr. Burson invoked his privilege against self-
incrimination‖]; Coppola v. Powell (1st Cir. 1989) 878 F.2d 1562, 1567
[―petitioner‘s statement invoked his privilege against self-incrimination‖]; U.S. ex
27
rel. Savory v. Lane (7th Cir. 1987) 832 F.2d 1011, 1015 [defendant told police
―that ‗he didn‘t want to talk about it, he didn‘t want to make any statements‘ ‖].)
One case involved a defendant‘s silence in response to unwarned custodial
interrogation, which is the classic exception set forth in Miranda to the objective
invocation rule. (U.S. v. Velarde-Gomez, supra, 269 F.3d at p. 1032 [holding
inadmissible ―the use of silence in the face of questioning about incriminating
evidence‖].) Another case simply assumed that mere silence necessarily invoked
the privilege without considering whether or how that silence, along with the other
circumstances, made it clear that the defendant was invoking the privilege. (U.S.
v. Moore, supra, 104 F.3d at p. 385 [―the defendant who stands silent must be
treated as having asserted it‖]; see also U.S. v. Osuna-Zepeda (8th Cir. 2005) 416
F.3d 838, 846 (conc. opn. of Lay, J.) [―For purposes of the Fifth Amendment,
silence is the same as a statement invoking the right to remain silent‖].) The
remainder simply fail to consider the threshold question of invocation of the
privilege altogether. (U.S. v. Whitehead (9th Cir. 2000) 200 F.3d 634, 637-639 (en
banc); U.S. v. Hernandez (7th Cir. 1991) 948 F.2d 316, 322-324; State v.
VanWinkle (Ariz. 2011) 273 P.3d 1148, 1150-1152.) Consequently, none is
persuasive authority on the question whether ―the ‗general rule‘ ‖ that a witness
must clearly and timely ―assert the privilege to subsequently benefit from it‖
(Salinas, supra, 570 U.S. at p. ___ [133 S. Ct. at p. 2181]) applies in these
circumstances.
E
The Court of Appeal also feared that, as a policy matter, allowing comment
on a defendant‘s postarrest, pre-Miranda silence prior to custodial interrogation
would ― ‗create an incentive for arresting officers to delay interrogation in order to
create an intervening ―silence‖ that could then be used against the defendant.‘ ‖
(Quoting U.S. v. Moore, supra, 104 F.3d at p. 385.) But a defendant could easily
28
eliminate any such risk by clearly and timely invoking the privilege. Moreover,
the Court of Appeal‘s assumption that a delay in interrogation is necessarily
unjustified ignores the government‘s interest in ensuring that questioning be
conducted under circumstances that allow for proper documentation of the
interview by law enforcement personnel who are trained in interrogation
techniques. Indeed, the record here showed that defendant needed to be taken to
the station not only to give a detailed taped statement, but also to provide a blood
sample—which was required by department policy in all major injury collisions
and likewise could be done only in a controlled environment. (Cf. Missouri v.
Seibert (2004) 542 U.S. 600, 621 (Kennedy, J., concurring in judgment)
[postwarning interview following use of ―the two-step technique‖ was
inadmissible where the tactic was a ―deliberate‖ attempt to undermine the
Miranda warning and there were no ―legitimate objectives that might otherwise
justify its use‖].)
In any event, the same incentive to delay Miranda warnings already exists
by virtue of the high court‘s decision in Fletcher v. Weir, supra, 455 U.S. 603,
which allows a defendant‘s postarrest, pre-Miranda silence to be used as
impeachment. (See People v. Fondron (1984) 157 Cal. App. 3d 390, 397-398 [―this
procedure,‖ i.e., ― ‗manipulat[ing] the facts by asking no questions immediately
after the arrest, in order to use the defendant‘s silence against him,‘ ‖ ―is approved
by United States Supreme Court precedent‖].) In fact, the Sixth Circuit decision
in Weir v. Fletcher, supra, 658 F.2d 1126, which the high court overturned in its
per curiam opinion, rested on precisely the same policy argument—i.e., that
allowing postarrest, pre-Miranda silence to be used for impeachment ―would
discourage the reading of Miranda warnings‖ at the time of arrest. (Weir v.
Fletcher, supra, 658 F.2d at p. 1132.) The Sixth Circuit feared in particular that
―[t]he police could simply arrest a suspect and be careful not to interrogate him for
29
15-20 minutes. If the police wanted to question the suspect, they could then read
the Miranda warnings. If the suspect had remained silent for those 15-20 minutes,
that silence could then be used for impeachment at trial.‖ (Ibid.) Neither
defendant nor the Court of Appeal has explained why this concern, which failed to
persuade the high court in Fletcher v. Weir, supra, 455 U.S. 603, should have any
greater force here. (See generally Thompson, Evading Miranda: How Seibert and
Patane Failed to “Save” Miranda (2006) 40 Val. U. L.Rev. 645, 655 [―The
Supreme Court did not share the circuit court‘s concerns about losing the benefits
of prompt warnings by creating an incentive deliberately to delay warnings‖; thus,
―the Fletcher case means that the government always benefits from delaying the
issuance of warnings‖].) Indeed, given that police officers confronting a suspect
have no way of knowing whether the suspect will speak or remain silent (or even
whether the suspect would take the stand at an eventual trial), the incentive to
delay Miranda warnings in hopes of obtaining silence that could be used in the
case-in-chief or as impeachment must be a very weak one. (See Snyder, A Due
Process Analysis of the Impeachment Use of Silence in Criminal Trials (1988) 29
Wm. & Mary L.Rev. 285, 324, fn. 222.)6
6
Some state courts view the calculus differently and have interpreted their
own constitutions to bar the use of postarrest, pre-Miranda silence for
impeachment. (E.g., Adams v. State (Alaska 2011) 261 P.3d 758, 765; State v.
Hoggins (Fla. 1998) 718 So. 2d 761, 769-770; Com. v. Spotz (Pa. 2005) 870 A.2d
822, 831; Sanchez v. State (Tex.Crim.App. 1986) 707 S.W.2d 575, 578; State v.
Davis (Wn.Ct.App. 1984) 686 P.2d 1143, 1145.) Although the Court of Appeal
used to follow what it called ―the ‗California rule,‘ ‖ which likewise ―forbade
cross-examination or commentary on a defendant‘s postarrest silence whether
Miranda warnings were given or not‖ (People v. Delgado (1992) 10 Cal. App. 4th
1837, 1841), the Truth-in-Evidence provision of our state Constitution (Cal.
Const., art. I, § 28, subd. (f)(2)), which directs that ― ‗evidence of [a defendant]‘s
pre-Miranda silence may be excluded only if application of the exclusionary rule
is compelled by federal law‘ ‖ (Delgado, supra, 10 Cal.App.4th at p. 1841), now
forecloses such a rule.
30
F
The Court of Appeal, which did not have the benefit of the Salinas
decision, found a violation of the Fifth Amendment privilege in the admission of
defendant‘s postarrest, pre-Miranda silence based solely on the fact defendant was
in custody and was silent as to the welfare of the others involved in the crash,
without considering whether or when defendant ever invoked the privilege. This
was error. As stated, a defendant must invoke the privilege in order to claim its
protections, and the invocation must be ―unambiguous.‖ (Berghuis, supra, 560
U.S. at p. 381.) The record here shows that defendant answered Officer Price‘s
questions as to what happened when Price first arrived at the scene, that defendant
asked the officers whether he could go home, that defendant complained to police
about an ankle injury, and that defendant expressed reluctance about going to the
police station to have his blood drawn but eventually agreed to go to the station.
Following his de facto arrest, defendant continued to speak with the officers. In
particular, he asked at the station whether he could refuse to have his blood drawn
and he asked for permission to use the bathroom and for an aspirin. Whether these
or other circumstances made it clear to the officers that he had invoked his
privilege against self-incrimination is for the Court of Appeal to analyze in the
first instance, along with the remainder of defendant‘s claims, if necessary. (See
id. at p. 406, fn. 6 (dis. opn. of Sotomayor, J.).)
Our conclusion that use of a defendant‘s postarrest, pre-Miranda silence is
not barred by the Fifth Amendment in the absence of custodial interrogation or a
clear invocation of the privilege does not mean that evidence overcoming those
constitutional hurdles would necessarily be admissible under the Evidence Code.
(People v. Aquino (Ill.App.Ct. 1992) 605 N.E.2d 684, 688 [― ‗difficulties of
inference [concerning postarrest silence] are subjects for state law‘ ‖]; cf. Fletcher
v. Weir, supra, 455 U.S. at p. 607 [―A State is entitled . . . to leave to the judge and
31
jury under its own rules of evidence the resolution of the extent to which postarrest
silence may be deemed to impeach a criminal defendant‘s own testimony‖];
Jenkins, supra, 447 U.S. at p. 239.) The probative value of a defendant‘s silence
depends peculiarly on a careful assessment of all of the relevant circumstances.
(Compare United States ex rel. Bilokumsky v. Tod (1923) 263 U.S. 149, 153-154
[―Silence is often evidence of the most persuasive character‖] with United States
v. Hale (1975) 422 U.S. 171, 176 [―In most circumstances silence is so ambiguous
that it is of little probative force‖].) In the context of silence that immediately
precedes or follows an arrest, some courts have held that the defendant‘s silence in
the circumstances presented was ―too ambiguous to have probative value as an
indicator of guilt and any probative value would be outweighed by the prejudice to
the defendant at trial.‖ (Weitzel v. State (Md. 2004) 863 A.2d 999, 1003.) One
source of ambiguity is the ubiquity of Miranda warnings in popular culture and
the extent to which a defendant may have subjectively intended to rely on the
privilege, even if that intent was not communicated to law enforcement officers.
(See Ex Parte Marek (Ala. 1989) 556 So. 2d 375, 381; People v. Quintana (Colo.
1983) 665 P.2d 605, 610-611; People v. Aquino, supra, 605 N.E.2d at p. 688;
Weitzel, supra, 863 A.2d at p. 1005; Irwin v. Commonwealth (Mass. 2013) 992
N.E.2d 275, 289; Morris v. State (Nev. 1996) 913 P.2d 1264, 1267; People v.
DeGeorge (N.Y 1989) 541 N.E.2d 11, 13.) The probative value of the evidence
will also depend on the extent to which one would expect a person in the particular
circumstances to speak or volunteer a statement. (See State v. Deatore (N.J. 1976)
358 A.2d 163, 174 (conc. opn. of Sullivan, J.).) Whether and how these factors
should weigh in these particular circumstances—where the defendant spoke freely
about the circumstances of the collision and his own needs but never inquired
about the status of the others involved in the collision, despite the extensive
damage to their vehicle—is beyond the scope of our grant of review, but they
32
remain available for the Court of Appeal to consider on remand if presented with a
claim of error on those grounds.
In future cases, the better practice for a party seeking to offer evidence of
postarrest, pre-Miranda silence or a party seeking to exclude such evidence is to
proceed by way of a motion in limine, which will offer the trial court the
opportunity to develop a record as to whether the circumstances would have made
it clear to the officer that the defendant had invoked the privilege against self-
incrimination, whether the evidence of silence is relevant, and, if so, whether its
probative value is substantially outweighed by the probability of undue
consumption of time or undue prejudice under Evidence Code section 352.
33
DISPOSITION
The judgment of the Court of Appeal is reversed and the matter is
remanded for further proceedings consistent with this opinion.
BAXTER, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
34
DISSENTING OPINION BY WERDEGAR, J.
The majority concludes a defendant may not rely on his Fifth Amendment
rights as a basis for challenging the admission in the People‘s case-in-chief of his
postarrest, pre-Miranda1 warning silence if he fails to affirmatively invoke those
rights to police. Were I to reach the question, I would agree with my colleague
Justice Liu‘s analysis of the constitutional issue. (Dis. opn., post, at pp. 11–20.)
However, I conclude that by failing to make a timely and specific objection on this
ground, defendant failed to preserve the issue for appellate review. Because I am
unpersuaded by the majority‘s explanation why it has chosen to resolve this case
based on a claim that was forfeited in the trial court, I dissent.
I.
The evidence of defendant‘s silence—that is, his failure to inquire after the
welfare of the people in the car he crashed into—was twice placed before the jury.
First, during Officer Price‘s testimony, the prosecutor asked him, ―when
[defendant] made [his] request to go home, had he asked you any questions about
the condition of the occupants in the Nissan?‖ Officer Price simply answered:
―No.‖ Defendant interposed no Fifth Amendment objection. Later, when
questioning Sergeant Bailey, the prosecutor asked him: ―So, during any of this
1
Miranda v. Arizona (1966) 384 U.S. 436.
time [prior to defendant‘s arrest at the police station, did] the defendant ever ask
you about the occupants of the other vehicle?‖ Bailey replied: ―No, he did not.‖
Again there was no Fifth Amendment objection.
The question of defendant‘s silence was later raised during the prosecutor‘s
closing argument. During that argument, the prosecutor addressed the conflicting
expert evidence that attempted to reconstruct defendant‘s speed at impact,
presumably because the greater the speed, the more likely the jury would find
defendant was not merely negligent but grossly so. The prosecutor argued that
because defendant was travelling at more than twice the posted limit, the jury
should infer that he did not care about the consequences of his actions. The
prosecutor then said: ―The next one I think is particularly offensive; he never,
ever asked, hey, how are the people in the other car doing? Not once. . . . Now
you step on somebody‘s toe or you bump into someone accidentally, what is your
first thing out of your mouth? Whoops. I‘m sorry. I‘m not saying that he has to
say sorry as an expression of his guilt or as some kind of confession, but simply as
an expression of his regret. Look, I‘m sorry those people were hurt.
―Not once. Do you know how many officers he had contact with that
evening? Not a single one said that, hey, the defendant asked me how those
people were doing. Why is that? Because he knew he had done a very, very, very
bad thing, and he was scared.‖ Defendant raised no objection to this argument.
II.
As a general rule, a timely and specific objection at trial to the admission of
evidence is a necessary prerequisite before one may challenge on appeal the
admissibility of the evidence. This rule of appellate procedure requiring the
2
preservation of claims is one of both statutory (Evid. Code, § 353)2 and decisional
law (see, e.g., People v. Weaver (2001) 26 Cal. 4th 876, 961). The same rule
applies to appellate claims of prosecutorial misconduct: ― ‗As a general rule a
defendant may not complain on appeal of prosecutorial misconduct unless in a
timely fashion—and on the same ground—the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the
impropriety.‘ ‖ (People v. Hill (1998) 17 Cal. 4th 800, 820; see People v.
Thompson (2010) 49 Cal. 4th 79, 126.)
This forfeiture rule, while subject to some exceptions,3 serves an important
function, for a timely and specific objection ―provide[s] the trial court and any
moving party the opportunity to meet and cure any defect to which an objection
has been made.‖ (People v. Chaney (2007) 148 Cal. App. 4th 772, 779; see People
v. Williams (1997) 16 Cal. 4th 153, 254 [regarding claims of prosecutorial
misconduct, the ―primary purpose of the requirement that a defendant object at
trial . . . is to give the trial court an opportunity, through admonition of the jury, to
correct any error and mitigate any prejudice‖].)
2
Evidence Code section 353 provides: ―A verdict or finding shall not be set
aside, nor shall the judgment or decision based thereon be reversed, by reason of
the erroneous admission of evidence unless:
―(a) There appears of record an objection to or a motion to exclude or to
strike the evidence that was timely made and so stated as to make clear the
specific ground of the objection or motion; and
―(b) The court which passes upon the effect of the error or errors is of the
opinion that the admitted evidence should have been excluded on the ground
stated and that the error or errors complained of resulted in a miscarriage of
justice.‖
3
See, e.g., People v. Hill, supra, 17 Cal.4th at p. 820 (―A defendant will be
excused from the necessity of either a timely objection and/or a request for
admonition if either would be futile.‖).
3
When, as here, we decide a question of constitutional law, the rule
requiring a timely and specific objection is animated by more than mere judicial
efficiency or practicality. ―As the United States Supreme Court reiterated, ‗A
fundamental and longstanding principle of judicial restraint requires that courts
avoid reaching constitutional questions in advance of the necessity of deciding
them.‘ ‖ (Santa Clara County Local Transportation Authority v. Guardino (1995)
11 Cal. 4th 220, 230–231.) Lacking a true controversy before the court,
considerations of judicial restraint direct that we not reach out to decide
gratuitously unsettled questions of constitutional law. ― ‗It is well established that
―we do not reach constitutional questions unless absolutely required to do so to
dispose of the matter before us.‖ ‘ ‖ (People v. Brown (2003) 31 Cal. 4th 518, 534
[unanimous opinion of the court by Werdegar, J.].)
This reasoning gains additional force when, as here, an appellate court
confronts a constitutional question whose answer is both difficult and unsettled.
That the issue before us today has no easy answer is amply illustrated by an
examination of the majority‘s supporting legal authority. It relies on (1) a
hopelessly fractured decision by the United States Supreme Court in which none
of the three legal theories in play obtained the support of a majority of the justices
(Salinas v. Texas (2013) 570 U.S. ___ [186 L. Ed. 2d 376, 133 S. Ct. 2174]); (2) a
lower federal court case in which the evidence of the defendant‘s prearrest silence
was admitted without objection (Abby v. Howe (6th Cir. 2014) 742 F.3d 221); and
(3) an unpublished memorandum opinion by an intermediate state court in Waco,
Texas (Torres v. State (Tex.App. June 12, 2014, No. 10-12-00263-CR) 2014 Tex.
App. Lexis 6354), a state whose own rules provide that unpublished cases have no
precedential value (see Carrillo v. State (Tex.App. 2003) 98 S.W.3d 789, 794; see
Tex. Rules of App. Proc., rule 47.7).
4
Given this uncertainty in the law, considerations of judicial restraint
counsel that we decline to decide the merits of a case in which the aggrieved party
forfeited the claim for appeal, for ―[c]onstitutional analysis should not be
embarked on lightly and never when a case‘s resolution does not demand it.‖
(People v Giles (2007) 40 Cal. 4th 833, 857, conc. opn. of Werdegar, J.) We
recently sounded this precise theme in Robey v. Superior Court (2013) 56 Cal. 4th
1218, a unanimous decision of the court: ―Our admonition is rooted in principles
of judicial restraint, which have particular salience when courts are confronted
with unsettled constitutional issues. ‗ ―In an emerging area of the law, we do well
to tread carefully and exercise judicial restraint, deciding novel issues only when
the circumstances require.‖ ‘ ‖ (Id. at p. 1243, italics added.)
The majority‘s decision to extend this court‘s reach to expound on a
forfeited claim is the antithesis of the light step I find appropriate in this case, and
its explanation for the departure from proper appellate procedure is unpersuasive.
That this court can limit its review to one of several issues decided by a lower
court (Cal. Rules of Court, rule 8.516(a)(1) [―the Supreme Court may specify the
issues to be briefed and argued‖]), as the majority observes, does not speak to
whether it is prudent to overlook a party‘s forfeiture to reach out unnecessarily to
decide that issue. That no party sought review of the forfeiture issue is of no
moment; defendant certainly had no incentive to do so, as the Court of Appeal
excused his omission to reverse his conviction. In any event, this court ―may
decide any issues that are raised or fairly included in the petition or answer‖ (Cal.
Rules of Court, rule 8.516(b)(1)), and the question of forfeiture is fairly included
in the Fifth Amendment issue presented in this case. Finally, the cases the
majority cites in support of its choice to address the issue (Southern Cal. Ch. of
Associated Builders etc. Com. v. California Apprenticeship Council (1992) 4
Cal. 4th 422, 431, fn. 3; People v. Weiss (1999) 20 Cal. 4th 1073, 1076–1077) hold
5
merely that this court may choose to decide one of two or more potentially
dispositive issues; significantly, neither case addresses a forfeited issue, the
application of Evidence Code section 353, or the wisdom of overlooking a party‘s
failure to object.
CONCLUSION
Concerning the constitutional question of whether using a defendant‘s
postarrest, pre-Miranda warning silence against him violates his right against
compelled self-incrimination under the Fifth Amendment, the majority makes the
somewhat paradoxical choice to overlook defendant‘s forfeiture of the issue in the
trial court by his failure to object, in order to conclude he may have forfeited his
Fifth Amendment rights at the scene by failing to invoke them. Justice Liu
persuasively explains why the majority misconstrues Salinas v. Texas, supra, 186
L. Ed. 2d 376, and that we should assume a person in that situation was choosing to
remain silent in reliance on his or her rights under the Fifth Amendment. (Dis.
opn., post, at pp. 15–18.) I would join his opinion were the issue properly before
this court. But because I find no plausible justification for overlooking
defendant‘s forfeiture of the issue in the trial court, I conclude we should decline
to reach this difficult constitutional issue and should instead dismiss the case as
improvidently granted. (Cal. Rules of Court, rule 8.528(b).) Because the majority
has chosen to reach out and address an issue not properly before us, I dissent.
WERDEGAR, J.
6
DISSENTING OPINION BY LIU, J.
As anyone who has ever watched a crime drama on television knows, a
suspect who is placed under arrest ―has a right to remain silent,‖ and ―any
statement he does make may be used as evidence against him.‖ (Miranda v.
Arizona (1966) 384 U.S. 436, 444 (Miranda).) The Miranda warnings, which
―have become part of our national culture‖ (Dickerson v. United States (2000) 530
U.S. 428, 443), serve as an essential safeguard to protect the Fifth Amendment
right against self-incrimination in the context of custodial interrogation. But
whether interrogated or not, a suspect in custody has a right under the Fifth
Amendment not to incriminate himself. And often the best way not to incriminate
oneself is to say nothing.
The court today holds, against commonsense expectations, that remaining
silent after being placed under arrest is not enough to exercise one‘s right to
remain silent. If the police have not given Miranda warnings, the court says, a
suspect in custody cannot later claim the protection of the Fifth Amendment unless
he breaks his silence and ―clearly invoke[s]‖ the privilege in a manner that ―a
reasonable police officer in the circumstances would understand.‖ (Maj. opn.,
ante, at p. 21.)
But why? No one disputes that if the police in this case had given Miranda
warnings to defendant Richard Tom immediately upon placing him in custody, the
prosecutor could not have relied on his postarrest silence to show consciousness of
guilt regardless of whether he clearly invoked the Fifth Amendment privilege.
Why should the result be any different simply because the police did not give him
the Miranda warnings until some time later? Whether warned or not, Tom knew
that he had been involved in a serious car crash and that the police had put him in
custody because they suspected he was criminally liable. Indeed, the prosecutor
argued that Tom never asked about the occupants of the other vehicle because ―he
knew he had done a very, very, very bad thing, and he was scared,‖ and because
―he was obsessed with only one thing, that is, saving his own skin.‖ On the
prosecutor‘s own account, Tom‘s foremost concern naturally would have been to
avoid incriminating himself. To hinge the protection of the Fifth Amendment on
whether his silence occurred before or after he was given Miranda warnings
makes no sense. It simply ―create[s] an incentive for arresting officers to delay
interrogation in order to create an intervening ‗silence‘ that could then be used
against the defendant.‖ (United States v. Moore (D.C. Cir. 1997) 104 F.3d 377,
385 (Moore).)
Moreover, the court does not explain how its rule is supposed to work in
practice. As Tom sat in the back seat of the patrol car, he was not being
questioned by the police. To whom and how should he have invoked the Fifth
Amendment privilege? Was he required to approach an officer on his own
initiative and blurt out, ―I don‘t want to talk‖? Would it have been enough for
Tom to say just that, without mentioning the Fifth Amendment or otherwise
indicating he didn‘t want to incriminate himself? And if so, how would that have
been materially different from simply remaining silent? Moreover, why should it
matter whether Tom invoked the privilege to a police officer? What purpose
would that have served, since no police officer was trying to question him?
Today‘s decision conflicts with Ninth Circuit precedent holding that ―the
government may not comment on a defendant‘s post-arrest, pre-Miranda silence
2
in its case-in-chief because such comments would ‗act [] as an impermissible
penalty on the exercise of the . . . right to remain silent.‘ ‖ (United States v.
Velarde-Gomez (9th Cir. 2001) 269 F.3d 1023, 1030 (en banc) (Velarde-Gomez),
quoting United States v. Whitehead (9th Cir. 2000) 200 F.3d 634, 638.) This state
of the law invites forum shopping by law enforcement and causes confusion for
anyone arrested in California on a question that is always important: If I remain
silent, can my silence be used against me or not?
The United States Supreme Court has long held that the Fifth Amendment
bars comment on a defendant‘s decision to remain silent at trial. (Griffin v.
California (1965) 380 U.S. 609, 615 (Griffin).) Likewise, in the context of
custodial interrogation, ―[t]he prosecution may not . . . use at trial the fact that he
stood mute or claimed his privilege in the face of accusation.‖ (Miranda, supra,
384 U.S. at p. 468, fn. 37.) The same ―accusation‖ is present here: An arrest
entails an official accusation, supported by probable cause, that the suspect has
committed a crime. Instead of today‘s counterintuitive holding, I would follow the
simple and sensible rule adopted by the Seventh, Ninth, and D.C. Circuits: After
being placed in custody, regardless of whether Miranda warnings have been
given, the fact that the suspect remained silent may not be used as evidence of
guilt in the prosecution‘s case-in-chief. (Accord, Velarde-Gomez, supra, 269 F.3d
at pp. 1028–1030; Moore, supra, 104 F.3d at p. 385; United States v. Hernandez
(7th Cir. 1991) 948 F.2d 316, 322–323 (Hernandez).)
I.
In this case, the prosecutor elicited testimony and made comments during
trial suggesting that Tom‘s silence after the accident showed his consciousness of
guilt. In her direct examination of Sergeant Alan Bailey, the prosecutor asked,
―So, during any of this time [at the accident scene], the defendant ever ask you
about the occupants of the other vehicle?‖ Sergeant Bailey answered, ―No, he did
3
not.‖ When defense counsel objected, the prosecutor said, ―Consciousness of
guilt,‖ and the trial court overruled the objection. In her direct examination of
Officer Josh Price, the prosecutor asked, ―During those three hours [after the
accident], did the defendant ever ask you about the condition of the occupants of
the Nissan?‖ After defense counsel‘s objection was overruled, Officer Price
answered, ―No.‖ In her closing argument, the prosecutor said that ―how [Tom]
acted the night of the collision‖ pointed to ―his consciousness of his own guilt.‖
She said one aspect was ―particularly offensive, he never, ever asked, hey, how are
the people in the other car doing? Not once. . . . [¶] Not once. Do you know how
many officers that he had contact with that evening? Not a single one said that,
hey, the defendant asked me how those people were doing. Why is that? Because
he knew he had done a very, very, very bad thing, and he was scared. [¶] He was
scared or -- either that or too drunk to care. But he was scared. And he was
obsessed with only one thing, that is, saving his own skin.‖
Although Tom was not formally arrested until after he had been taken to
the police station, the trial court ruled that he was under de facto arrest when
Officer Price told him he was not free to leave the accident scene. The Court of
Appeal below found, and this court agrees, that Tom was under de facto arrest
when the police transported him to the station in a patrol vehicle. The police did
not question him about the accident at that point and did not give him Miranda
warnings until several hours later at the station. The issue in dispute is the
prosecution‘s use of Tom‘s silence during the postarrest, pre-Miranda period as
part of its case-in-chief.
Because today‘s opinion holds that Tom did not clearly invoke the right to
remain silent and thus never exercised the right, the court declines to decide
―whether the Fifth Amendment bars use of a defendant‘s postarrest, pre-Miranda
exercise of the privilege against self-incrimination in the absence of custodial
4
interrogation.‖ (Maj. opn., ante, at p. 16; see id. at pp. 14–15 [noting a split of
authority on that question].) I would hold that even in the absence of
interrogation, the Fifth Amendment‘s protections apply at least from the point that
a suspect has been placed under arrest or otherwise taken into custody.
The Fifth Amendment to the United States Constitution provides: ―No
person . . . shall be compelled in any criminal case to be a witness against himself
. . . .‖ The high court has construed this prohibition to mean that a criminal
defendant has a right not to testify at trial. If a defendant chooses to remain silent,
―the Fifth Amendment . . . forbids . . . comment by the prosecution on the
accused‘s silence . . . .‖ (Griffin, supra, 380 U.S. at p. 615.) The high court has
also held that the right to remain silent applies during custodial interrogation. In
that context, too, the prosecution may not use at trial the fact that a defendant
chose to remain silent. (Miranda, supra, 384 U.S. at p. 468, fn. 37.) Miranda
mandated warnings that serve as ―a prophylactic means of safeguarding Fifth
Amendment rights.‖ (Doyle v. Ohio (1976) 426 U.S. 610, 617 (Doyle).) But the
Miranda warnings are not themselves the source of the rights stated in the
warnings. The warnings are a means of giving effect to rights that are already
operative when the police initiate custodial interrogation.
The question is whether the Fifth Amendment privilege against self-
incrimination comes into play even earlier. The high court recently declined to
resolve whether the Fifth Amendment bars a prosecutor from using a defendant‘s
noncustodial silence as evidence of guilt. (Salinas v. Texas (2013) 570 U.S. __, __
[133 S. Ct. 2174, 2179] (Salinas) (plur. opn. of Alito, J.).) But the case before us
involves postarrest or custodial silence. The high court has said, in oft-quoted
language, that Miranda ―require[s] that a person taken into custody be advised
immediately that he has the right to remain silent, that anything he says may be
used against him, and that he has a right to retained or appointed counsel before
5
submitting to interrogation.‖ (Doyle, supra, 426 U.S. at p. 617, italics added.)
The premise of this statement is that a suspect who has been taken into custody
has the right to remain silent, whether or not interrogation ensues. (Hence the
familiar refrain: ―You are under arrest. You have the right to remain silent.
Anything you say may be used against you in a court of law. . . .‖) If the police do
not give Miranda warnings immediately upon taking a suspect into custody, that
does not pretermit or suspend the suspect‘s right to remain silent. Were it
otherwise, the police would have an incentive to delay the warnings so that any
postarrest, pre-Miranda silence could be used against the suspect. (See Moore,
supra, 104 F.3d at p. 385.) And the suspect would face possible incrimination by
anything he says as well as anything he does not say.
Some courts have held otherwise, relying on Fletcher v. Weir (1982) 455
U.S. 603 (Fletcher) for the rule that ―the government may comment on a
defendant‘s silence when it occurs after arrest, but before Miranda warnings are
given.‖ (United States v. Rivera (11th Cir. 1991) 944 F.2d 1563, 1568 (Rivera);
see United States v. Love (4th Cir. 1985) 767 F.2d 1052, 1063 (Love).) But
Fletcher adopted that rule specifically for prosecutorial use of a defendant‘s
silence to impeach his own testimony at trial. In Fletcher, the high court
reaffirmed its holding in Doyle that a prosecutor may not comment on a
defendant‘s postarrest silence when Miranda warnings have been given, even for
impeachment, because the warnings may ―induce[] silence by implicitly assuring
the defendant that his silence [will] not be used against him.‖ (Fletcher, at
p. 606.) But ―[i]n the absence of the sort of affirmative assurances embodied in
the Miranda warnings,‖ no similar unfairness occurs (id. at p. 607), and the use of
defendant‘s silence for impeachment ―follows the defendant‘s own decision to cast
aside his cloak of silence and advances the truth-finding function of the criminal
trial‖ (Jenkins v. Anderson (1980) 447 U.S. 231, 238 (Jenkins)).
6
In a nutshell, high court precedent holds that a defendant‘s decision to
testify at trial effectively waives protection of his pretrial silence for impeachment
purposes (per Fletcher and Jenkins) unless the administration of Miranda
warnings has estopped the government from commenting on the defendant‘s
silence altogether (per Doyle and Miranda). Fletcher was simply an application of
the general principle that evidence otherwise off-limits to the prosecution may be
used to impeach a defendant who chooses to testify at trial. (See Harris v. New
York (1971) 401 U.S. 222, 224–226; Walder v. United States (1954) 347 U.S. 62,
65.) Neither Fletcher nor any other high court decision suggests that the Fifth
Amendment right to remain silent does not apply in the postarrest, pre-Miranda
context.
Recognizing that ―the holding in Fletcher is restricted to use of silence for
impeachment purposes,‖ the Eighth Circuit in United States v. Frazier (8th Cir.
2005) 408 F.3d 1102 (Frazier) offered a different rationale for allowing the use of
postarrest, pre-Miranda silence in the government‘s case-in-chief. (Frazier,
supra, 408 F.3d at p. 1110.) Noting that the Fifth Amendment prohibits
―compelled‖ self-incrimination, the Eighth Circuit said the key question was
―whether Frazier was under any compulsion to speak at the time of his silence.‖
(Frazier, at p. 1111.) The court reasoned: ―Although Frazier was under arrest,
there was no governmental action at that point inducing his silence. Thus he was
under no government-imposed compulsion to speak. It is not as if Frazier refused
to answer questions in the face of interrogation. . . . [A]n arrest by itself is not
governmental action that implicitly induces a defendant to remain silent. Fletcher,
455 U.S. at 606.‖ (Ibid.)
It is true that Fletcher rejected the contention that ― ‗an arrest, by itself, is
governmental action which implicitly induces a defendant to remain silent.‘ ‖
(Fletcher, supra, 455 U.S. at p. 606.) But in doing so, the high court merely
7
sought to distinguish an arrest from the administration of Miranda warnings for
the purpose of limiting Doyle‘s prohibition on the use of silence for impeachment
to post-Miranda silence. (Fletcher, at p. 606.) Again, Fletcher nowhere
suggested that the Fifth Amendment does not otherwise protect postarrest, pre-
Miranda silence. Fletcher simply held that any protection is waived by the
defendant‘s decision to testify at trial.
In discussing compulsion, Frazier focused on the compulsion inherent in
custodial interrogation, which triggers an affirmative governmental inducement to
remain silent, namely, the Miranda warnings. But custodial interrogation is not
the only type of compulsion that implicates the Fifth Amendment. Griffin
addressed a different kind of compulsion. A defendant who decides not to testify
at trial does not do so in response to any questioning by the prosecutor or the
judge. His silence is not induced by any governmental assurance like the Miranda
warnings, nor is it a response to any ―government-induced compulsion to speak.‖
(Frazier, supra, 408 F.3d at p. 1111.) Yet Griffin held that such silence is
protected because ―comment on the refusal to testify is a remnant of the
‗inquisitorial system of criminal justice,‘ [citation], which the Fifth Amendment
outlaws. It is a penalty imposed by courts for exercising a constitutional privilege.
It cuts down on the privilege by making its assertion costly.‖ (Griffin, supra, 380
U.S. at p. 614, fn. omitted.) The element of compulsion arises from the fact that
allowing adverse comment on silence puts pressure on the defendant to take the
witness stand, thereby undermining ―the central purpose of the privilege—to
protect a defendant from being the unwilling instrument of his or her own
condemnation.‖ (Mitchell v. United States (1999) 526 U.S. 314, 329 (Mitchell).)
This pressure exists even if ―a guilty defendant would choose to remain silent
despite the adverse inference.‖ (Id. at p. 331 (dis. opn. of Scalia, J.).)
8
The rule recognized in Griffin — that the Fifth Amendment privilege
against compulsory self-incrimination ―prohibit[s] an inference of guilt from a
defendant‘s rightful silence‖ — has found ―general and wide acceptance in the
legal culture‖ and ―has become an essential feature of our legal tradition.‖
(Mitchell, supra, 526 U.S. at p. 330.) This rule properly applies not only at trial or
during custodial interrogation, but at any point after a suspect has been arrested or
otherwise taken into custody. For what is common to all of these contexts is that
the suspect or defendant faces an official accusation that he has committed a
crime. An arrest requires probable cause, and ― ‗[t]he substance of all the
definitions‘ of probable cause ‗is a reasonable ground for belief of guilt.‘
[Citation.] . . . [I]t has come to mean more than bare suspicion: Probable cause
exists where ‗the facts and circumstances with their [the officers‘] knowledge and
of which they had reasonably trustworthy information [are] sufficient in
themselves to warrant a man of reasonable caution in the belief that‘ an offense
has been or is being committed.‖ (Brinegar v. United States (1949) 338 U.S. 160,
175 (Brinegar).)
The accusatory nature of an arrest is also confirmed by the investigatory
license given to law enforcement after placing a person under arrest. Although
subject to limitations (see, e.g., Riley v. California (2014) 573 U.S. __ [134 S. Ct.
2473] (Riley)), the search incident to arrest doctrine has long authorized police to
search an arrestee‘s person, personal property, or vehicle for evidence of crime in
order to prevent its concealment or destruction. (See Arizona v. Gant (2009) 556
U.S. 332; United States v. Robinson (1973) 414 U.S. 218; Chimel v. California
(1969) 395 U.S. 752.) Further, as pertinent here, California law provides that ―[a]
person who drives a motor vehicle is deemed to have given his or her consent to
chemical testing of his or her blood or breath for the purpose of determining the
alcoholic content of his or her blood, if lawfully arrested‖ for various drunk-
9
driving offenses. (Veh. Code, § 23612, subd. (a)(1)(A).) Failure to comply will
result in a fine, suspension of the suspect‘s driver‘s license, and other serious
consequences. (Id., §§ 13353, 23612, subd. (a)(1)(D).)
In this case, the Court of Appeal below summarized ―the increasingly
coercive circumstances‖ of the police‘s interaction with Tom as follows: ―[T]he
stop in this case was not ‗temporary and brief.‘ [Citation.] Rather, defendant was
held at the scene for approximately an hour and a half before he was placed into a
patrol car and transported to the police station. Moreover, during that time frame
of approximately an hour and a half, the atmosphere surrounding defendant‘s
detention became increasingly coercive. In this regard, after paramedics had
examined defendant and police officers had surveyed the accident scene,
defendant asked Officer Price if he could walk to his home less than a block away.
Price replied, ‗I told him no. That obviously the investigation was still ongoing.
We needed him to remain at the scene.‘ Later, after police denied defendant‘s
request to walk home, Officer Felker removed defendant from the Toyota Camry,
where he was seated with his girlfriend and Gamino, and placed him in the back of
the patrol car at approximately 9:30 p.m. Defendant was held in the patrol car for
another twenty minutes before he was transported from the accident scene at 9:48
p.m. and driven to the police station for further investigation. At no point prior to
defendant‘s transportation from the scene did police tell defendant he was free to
leave the accident scene. To the contrary, defendant‘s request to leave the scene
was denied.‖
In light of the coercive and accusatory setting that confronts a suspect who
is placed under arrest, allowing adverse comment on the fact that the suspect chose
to remain silent ―in the face of accusation‖ (Miranda, supra, 384 U.S. at p. 468,
fn. 37) burdens the suspect with a measure of compulsion to talk. In this case, the
prosecutor said in her closing argument, ―I‘m not saying that he has to say sorry as
10
an expression of his guilt or as some kind of confession, but simply as an
expression of his regret. Look, I‘m sorry those people were hurt.‖ But such fine
parsing seems a bit much to expect from a suspect taken into custody at an
accident scene that Officer Price described as ―fairly chaotic.‖ For a person who
has been arrested, talking often carries a significant risk of self-incrimination.
The issue of postarrest, pre-Miranda silence typically arises in situations
where, as here, the prosecution contends that the defendant, upon being arrested or
confronted with contraband, showed consciousness of guilt by reacting with
silence instead of concern, surprise, or indignation as an innocent person would.
Penalizing silence in this way, thereby pressuring the suspect to speak and
possibly incriminate or perjure himself (or both), imposes the same type of burden
that Griffin found impermissible in the context of trial. If the right to remain silent
did not apply at all in the postarrest, pre-Miranda context, then a suspect would
face ―the ‗cruel trilemma‘ of incriminating himself, lying, or demonstrating his
guilt by silence.‖ (Maj. opn., ante, at p. 24.) Whatever choice the suspect makes,
he becomes ―the unwilling instrument of his or her own condemnation.‖
(Mitchell, supra, 526 U.S. at p. 329.)
In sum, a suspect who has been arrested or otherwise taken into custody has
a right under the Fifth Amendment to remain silent, whether or not Miranda
warnings have been given.
II.
At the same time, the Fifth Amendment ―does not establish an unqualified
‗right to remain silent.‘ ‖ (Salinas, supra, 570 U.S. at p. __ [133 S.Ct. at p. 2183]
(plur. opn. of Alito, J.).) It protects silence that constitutes an exercise of the
privilege against compelled self-incrimination, not silence attributable to other
reasons. In order to trigger the Fifth Amendment‘s protection, the court today
holds, a suspect in custody may not simply remain silent. Instead, the suspect
11
must ―clearly,‖ ―timely,‖ and ―unambiguously‖ invoke the Fifth Amendment
privilege (maj. opn., ante, at pp. 2, 27) so that ―a reasonable police officer in the
circumstances would understand that the defendant had invoked the privilege
either at or prior to the silence at issue‖ (id. at p. 21).
But this invocation rule lacks sound justification. It is derived from case
law addressing what a suspect must do to exercise the Fifth Amendment privilege
in the face of questioning by law enforcement. The issue of whether a suspect‘s
postarrest, pre-Miranda silence may be used at trial as evidence of guilt ordinarily
arises in situations where, as here, the silence did not occur in response to
interrogation. That is because any response to pre-Miranda (i.e., unwarned)
custodial interrogation would be inadmissible under Miranda itself. As explained
below, the concerns that justify a clear invocation rule in the context of police
questioning do not justify application of the same rule here. This case is not about
police interrogation; it is about the prosecution‘s use of a suspect‘s postarrest, pre-
Miranda silence to prove guilt at trial.
First, it is settled that ―a witness confronted with questions that the
government should reasonably expect to elicit incriminating evidence ordinarily
must assert the privilege rather than answer if he desires not to incriminate
himself.‖ (Minnesota v. Murphy (1984) 465 U.S. 420, 429, italics added.) As the
italicized words show, this rule applies when the prosecution seeks to incriminate
a defendant not on the basis of silence, but on the basis of what the defendant said
in response to government questioning. The reason is that ―if he chooses to
answer, his choice is considered to be voluntary‖ and thus waives any privilege he
might have exercised. (Ibid.) The right to remain silent may be waived by a
defendant‘s voluntary answers during a noncustodial interview (see id. at pp. 429–
434) or during custodial interrogation, even when the answers follow a prolonged
silence (see Berghuis v. Thompkins (2010) 560 U.S. 370, 382–387 (Berghuis)).
12
But these cases, which involve a decision to speak in response to questioning, do
not stand for the odd proposition that a decision to remain silent in the absence of
questioning likewise waives the right to remain silent unless the defendant has
clearly invoked it.
Second, the high court has adopted a clear invocation rule in order to guide
police conduct in the specific context of custodial interrogation. In Davis v.
United States (1994) 512 U.S. 452, the high court held that a suspect who wants to
invoke the right to counsel during custodial interrogation must do so
―unambiguously,‖ that is, ―sufficiently clearly that a reasonable police officer in
the circumstances would understand the statement to be a request for an attorney.‖
(Id. at p. 459.) In Berghuis, the high court applied the same rule to invoking the
right to remain silent during custodial interrogation. (Berghuis, supra, 560 U.S. at
p. 381.) The rationale for this rule — in particular, its ―objective inquiry‖ into
what ―a reasonable police officer in the circumstances would understand‖ — is
―[t]o avoid difficulties of proof and to provide guidance to officers conducting
interrogations.‖ (Davis, at pp. 458–459; see Berghuis, at p. 382 [―If an ambiguous
act, omission, or statement could require police to end the interrogation, police
would be required to make difficult decisions about an accused‘s unclear intent
and face the consequence of suppression ‗if they guess wrong.‘ [Davis, at
p. 461.]‖].) But the need to give clear guidance to police officers so they do not
have to guess whether to stop questioning a suspect has nothing to do with the
issue in this case. The issue here is not whether the police overstepped in
questioning Tom about the circumstances of the accident against his wishes. The
issue is whether the prosecution overstepped in using Tom‘s silence in the absence
of questioning as part of its case-in-chief.
Third, in the context of noncustodial police questioning, as in Salinas, there
are additional reasons for a clear invocation rule: ―That requirement ensures that
13
the Government is put on notice when a witness intends to rely on the privilege so
that it may either argue that the testimony sought could not be self-incriminating,
see Hoffman v. United States, 341 U.S. 479, 486 (1951), or cure any potential self-
incrimination through a grant of immunity, see Kastigar v. United States, 406 U.S.
441, 448 (1972). The express invocation requirement also gives courts tasked
with evaluating a Fifth Amendment claim a contemporaneous record establishing
the witness‘ reasons for refusing to answer. See Roberts v. United States, 445
U.S. 552, 560, n. 7 (1980) (‗A witness may not employ the privilege to avoid
giving testimony that he simply would prefer not to give‘); [citation]. In these
ways, insisting that witnesses expressly invoke the privilege ‗assures that the
Government obtains all the information to which it is entitled.‘ [Citation.]‖
(Salinas, supra, 570 U.S. at p. __ [133 S.Ct. at p. 2179] (plur. opn. of Alito, J.).)
These concerns are also far afield from the issue here, which does not
involve an attempt by the government to obtain incriminating information from
Tom. When a witness is being questioned by a government officer, a clear
invocation rule gives the government an opportunity to dispel any real or
perceived risk of self-incrimination and, in turn, to lawfully insist that the witness
provide the information sought. Absent a risk of self-incrimination, the witness
cannot rely on the Fifth Amendment in refusing to answer. That explains why
Roberts v. United States (1980) 445 U.S. 552 (Roberts) held that the defendant‘s
refusal, before and after his arrest, to name the suppliers of illegal drugs could be
used against him at trial. The information sought by the government would have
incriminated others; there was no reason to think it would have (further)
incriminated Roberts. In that context, Roberts‘s failure to invoke the privilege
precluded his reliance on it. The precise holding of Roberts is: ―At least where
the Government has no substantial reason to believe that the requested disclosures
are likely to be incriminating, the privilege may not be relied upon unless it is
14
invoked in a timely fashion.‖ (Id. at p. 559, italics added; see id. at p. 562 (conc.
opn. of Brennan, J.) [―[B]ecause the Government questioning to which he failed to
respond was not directed at incriminating him, petitioner may not stand upon a
Fifth Amendment privilege that he never invoked at the time of his silence.‖].)
Thus, a clear invocation is required when it is necessary to put the
government on notice that a defendant‘s refusal to answer questions is based on
fear of self-incrimination. In this case, Tom‘s silence about the crash victims did
not occur in response to police questioning. The dispute does not involve an effort
by the government to obtain incriminating information from a suspect, and there is
no similar problem of notice. Indeed, the state can hardly suggest it had ―no
substantial reason to believe‖ Tom remained silent for fear of self-incrimination
(Roberts, supra, 445 U.S. at p. 559) when the prosecution‘s whole point was that
Tom said nothing about the accident victims because he was consumed by
consciousness of his own guilt.
Nor does the three-justice plurality opinion in Salinas, on which today‘s
opinion heavily relies, support a clear invocation rule here. (See Salinas, supra,
570 U.S. at p. __ [133 S.Ct. at p. 2177] (plur. opn. of Alito, J., joined by Roberts,
C.J., and Kennedy, J.).) The plurality concluded that the Fifth Amendment did not
bar the prosecution from using Salinas‘s precustodial, pre-Miranda silence in
response to police questioning as evidence of his guilt because ―he did not
expressly invoke the privilege against self-incrimination in response to the
officer‘s question.‖ (Salinas, at p. __ [133 S.Ct. at p. 2178].) The plurality‘s
rationale is inapplicable to postarrest, pre-Miranda silence for two reasons.
First, Salinas, like the other cases above, involved police questioning. As
its dominant theme, the plurality emphasized ― ‗the general principle that the
Government has the right to everyone‘s testimony.‘ ‖ (Salinas, supra, 570 U.S. at
p. __ [133 S.Ct. at p. 2179] (plur. opn. of Alito, J.); see id. at p. __ [133 S.Ct. at
15
p. 2181] [adopting an exception to invocation requirement ―would needlessly
burden the Government‘s interests in obtaining testimony‖].) The plurality
reasoned that limiting the protection of silence by means of an invocation rule
properly ―pressure[s] suspects‖ into answering the government‘s questions (id. at
p. __ [133 S.Ct. at p. 2183]) and thereby ― ‗assures that the Government obtains all
the information to which it is entitled‘ ‖ (id. at p. __ [133 S.Ct. at p. 2179]). As
noted, postarrest, pre-Miranda silence typically (as in this case) does not involve a
refusal to answer questions posed by law enforcement, since unwarned
questioning of a suspect in custody generally does not yield admissible evidence.
(See Velarde-Gomez, supra, 269 F.3d at pp. 1026–1028 [silence upon police
discovery of contraband]; Moore, supra, 104 F.3d at p. 384 [same]; Frazier,
supra, 408 F.3d at p. 1109 [silence upon being arrested]; Hernandez, supra, 948
F.2d at p. 322 [same]; Rivera, supra, 944 F.2d at pp. 1567–1568 [silence during
police inspection of luggage for contraband]; Love, supra, 767 F.2d at p. 1063 [no
police questioning; defendants ―made no effort to explain their presence at the Lee
farm on the night of their arrest‖].)
Second, although the Salinas plurality went beyond Roberts in applying the
invocation rule ―even when an official has reason to suspect that the answer to his
question would incriminate the witness‖ (Salinas, supra, 570 U.S. at p. __ [133
S.Ct. at p. 2181] (plur. opn. of Alito, J.)), the opening words of the plurality
opinion remain significant: ―Without being placed into custody or receiving
Miranda warnings, petitioner voluntarily answered the questions of a police
officer who was investigating a murder.‖ (Id. at p. __ [133 S.Ct. at p. 2177],
italics added.) Despite ―official suspicions,‖ the plurality reasoned, the fact that a
person voluntarily agreed to a noncustodial interview with the police renders his
silence in response to questioning ― ‗insolubly ambiguous.‘ ‖ (Id. at p. __ [133
S.Ct. at p. 2182].) In such circumstances, ―someone might decline to answer a
16
police officer‘s question in reliance on his constitutional privilege. But he also
might do so because he is trying to think of a good lie, because he is embarrassed,
or because he is protecting someone else. Not every such possible explanation for
silence is probative of guilt, but neither is every possible explanation protected by
the Fifth Amendment.‖ (Ibid.) In saying this, the Salinas plurality was treating
noncustodial silence as a broad category. Given the range of possible reasons for
silence in cases where a witness voluntarily submits to a noncustodial police
interview, the plurality thought it best to adopt an express invocation requirement
for the entire category, even if ―reliance on the Fifth Amendment privilege is the
most likely explanation for silence in a case such as [Salinas‘s].‖ (Ibid.)
After a person has been arrested, however, the context is different. As
discussed earlier, an arrest entails a formal accusation based on probable cause,
and ―probable cause means ‗a fair probability that contraband or evidence of a
crime will be found.‘ ‖ (United States v. Sokolow (1989) 490 U.S. 1, 7.) Probable
cause is a higher standard than ―a reasonable suspicion supported by articulable
facts that criminal activity ‗may be afoot.‘ ‖ (Ibid.; see Brinegar, supra, 338 U.S.
at p. 175.) Accordingly, a suspect‘s silence after being arrested gives rise to a
much stronger inference of reliance on the Fifth Amendment privilege than a
witness‘s noncustodial silence even ―in the face of official suspicions.‖ (Salinas,
supra, 570 U.S. at p. __ [133 S.Ct. at p. 2182] (plur. opn. of Alito, J.).) When
―official suspicions‖ have ripened into probable cause for arrest, a suspect‘s
silence correspondingly becomes more suggestive of fear of self-incrimination.
Just as the Salinas plurality‘s invocation rule is premised on the relatively
uncertain reasons for silence in the noncustodial context, a rule that bars use of a
suspect‘s postarrest, pre-Miranda silence as evidence of guilt is premised on the
relatively predictable reason for silence in the custodial context.
17
In reality, neither rule is perfect. There will be cases where the true reason
for a suspect‘s custodial silence is something other than fear of self-incrimination,
just as there will be cases where the true reason for a witness‘s noncustodial
silence is fear of self-incrimination even though the witness failed to expressly
invoke the Fifth Amendment. But the different rules are intended to govern two
broad categories of cases — custodial and noncustodial — in light of a general
feature that differentiates them, i.e., the accusatory nature of an arrest. No general
rule can perfectly capture the true reason for silence in every case; Salinas, for
example, may well have remained silent for fear of self-incrimination. (See
Salinas, supra, 570 U.S. at p. __ [133 S.Ct. at p. 2182] (plur. opn. of Alito, J.); id.
at p. __ [133 S.Ct. at pp. 2189–2190] (dis. opn. of Breyer, J.).) Nevertheless, the
generality of the rules in this context, as in others, is designed to yield fair results
in the mine run of cases to which they apply and, equally important, to set
expectations and guide future conduct by law enforcement and the citizenry. (Id.
at p. __ [133 S.Ct. at p. 2183] (plur. opn. of Alito, J.); cf. Riley, supra, 573 U.S. at
p. __ [134 S.Ct. at p. 2495] [rejecting various fact-based limitations on the warrant
requirement in favor of a ―simple‖ rule for searching cell phones incident to
arrest—―get a warrant‖].) Today‘s decision seems unlikely to yield fair results in
most cases because it is so counterintuitive. Here, as in Riley, it is better to adopt a
simple rule consistent with ordinary expectations: Upon being arrested, you have
a right to remain silent in order to avoid self-incrimination, and if you remain
silent, your silence may not be used against you as evidence of guilt.
Today‘s decision gives rise to two additional concerns. First, in rejecting
the contention that the invocation rule will give law enforcement an incentive to
delay Miranda warnings after an arrest, the court says ―the same incentive to delay
Miranda warnings already exists by virtue of the high court‘s decision in Fletcher
v. Weir . . . .‖ (Maj. opn., ante, at p. 29.) But this concern surely has ―greater
18
force here‖ (id. at p. 30) because Fletcher involved only the use of silence to
impeach the defendant at trial if he chooses to testify, whereas the issue here is the
use of silence to prove guilt in the prosecution‘s case-in-chief. Whatever incentive
police officers may have to delay Miranda warnings when they do not know
whether a suspect will end up testifying at trial, they certainly have a greater
incentive to delay Miranda warnings when any postarrest silence may be used to
prove the suspect‘s guilt unless he clearly invokes the Fifth Amendment privilege.
Second, how is the invocation rule supposed to work in practice? Because
pre-Miranda silence ordinarily does not occur in response to police questioning,
the court must envision that a suspect, immediately after being arrested, will take
the initiative to get a police officer‘s attention and declare his desire to invoke the
Fifth Amendment privilege. Assuming the suspect has the awareness and
presence of mind to do that (even in a ―fairly chaotic‖ situation like the car
accident here), what exactly must he say? Crucially, is it enough for a suspect to
say, ―I don‘t want to talk‖? Or must the suspect mention the Fifth Amendment or
otherwise indicate that the reason he doesn‘t want to talk is to avoid self-
incrimination? (See Quinn v. United States (1955) 349 U.S. 155, 164 [―no
ritualistic formula is necessary in order to invoke the privilege‖].)
The rationale for the invocation rule would suggest that a suspect must
make clear ―his reasons‖ for wanting to remain silent. (Salinas, supra, 570 U.S. at
p. __ [133 S.Ct. at p. 2183] (plur. opn. of Alito, J.).) Yet this court, perhaps
sensing how unrealistic this is, cannot bring itself to say that this is required.
Instead, among the examples it gives of situations where ―the defendant actually
invoked his rights‖ (maj. opn., ante, at p. 27), the court cites United States ex rel.
Savory v. Lane (7th Cir. 1987) 832 F.3d 1011, where the defendant told police
―that ‗he didn‘t want to talk about it, he didn‘t want to make any statements.‘ ‖
(Id. at p. 1015.) If saying that is enough for a suspect to put the police on notice
19
that his reason for remaining silent is to avoid self-incrimination, then I do not see
how simply remaining silent is materially different. The statement ―I don‘t want
to talk‖ is no more suggestive of a suspect‘s reason for silence than the act of
remaining silent itself. In either case, the desire to avoid self-incrimination is a
natural inference from the fact that the suspect faces an official accusation of
crime supported by probable cause. We should not ―exalt form over substance‖ in
recognizing the exercise of constitutional rights by ordinary people. (Escobedo v.
Illinois (1964) 378 U.S. 478, 486.)
III.
For reasons persuasively set forth by the Court of Appeal below, the
prosecution‘s use of Tom‘s silence about the crash victims in its case-in-chief
cannot be deemed harmless error. The jury was instructed that ―[g]ross negligence
is the exercise of so slight a degree of care as to exhibit a conscious indifference or
‗I don‘t care‘ attitude concerning the ultimate consequences of one‘s conduct.‖
Relying on testimony of an accident reconstruction expert, the prosecutor argued
that Tom‘s pre-impact speed was at least 67 miles per hour, demonstrating gross
negligence. But this testimony was disputed by a defense expert who estimated
Tom‘s speed to be around 50 miles per hour, a speed that police deemed safe for
that road under certain conditions. Given this conflicting expert testimony, the
prosecutor‘s emphasis on Tom‘s failure to ask about the crash victims was a
significant aspect of her claim that Tom ―was driving down that night . . . without
a care of what was going to happen. I don‘t care is the attitude that he had.‖ The
improper use of Tom‘s postarrest, pre-Miranda silence was not harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
20
For the reasons above, I would affirm the judgment of the Court of Appeal.
LIU, J.
I CONCUR: RYLAARSDAM, J.*
*
Associate Justice of the Court of Appeal, Fourth Appellate District, Division
Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
21
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Tom
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 204 Cal. App. 4th 480
Rehearing Granted
__________________________________________________________________________________
Opinion No. S202107
Date Filed: August 14, 2014
__________________________________________________________________________________
Court: Superior
County: San Mateo
Judge: H. James Ellis
__________________________________________________________________________________
Counsel:
Marc J. Zilversmit for Defendant and Appellant.
Michael T. Risher for American Civil Liberties Union of Northern California as Amicus Curiae on behalf
of Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Mark S. Howell, Laurence
K. Sullivan, Seth K. Schalit and Jeffrey M. Laurence, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Marc J. Zilversmit
523 Octavia Street
San Francisco, CA 94102
(415) 431-3472
Jeffrey M. Laurence
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5897
2