The Sound of Silence Post-Arrest and Pre-'Miranda'

Benjamin E. Rosenberg
New York Law Journal
06-10-2005


That every criminal defendant has the right to remain silent is axiomatic. Everyone who watches television — which is to say, everyone — knows it.

Notwithstanding its iconic status, the right to remain silent has some murky boundaries.

In the recent case of United States v. Frazier , 1 the U.S. Court of Appeals for the Eighth Circuit focused on one open question regarding the right to remain silent: Whether a defendant's silence post-arrest but pre- Miranda could be used against him in the government's case-in-chief. The court's answer was that such evidence could be used, but the court's reasoning raises unsettling questions.

Background

Frazier arose out of a pretextual traffic stop. Nebraska police officers saw appellant, Dante Frazier, fueling a U-Haul truck and washing its front window at a gas station. The officers suspected drug activity "based on their training and experience." In particular, it appeared that the U-Haul was being used for a cross-country trek, yet it was the kind more often used for "local move[s]," and it was not accompanied by another vehicle. The police therefore followed the U-Haul as it left the gas station, driven by Mr. Frazier.

As the police followed the U-Haul their suspicions were heightened by the facts that (1) the U-Haul had a new lock, and "people transporting illegal narcotics are likely to lock the load," (2) "the U-Haul was from Arizona, 'a source area' for controlled substances," and (3) "the investigators noticed a bible on the front dash," which was, the officers believed, "a common method drug couriers use to avoid suspicion."

The officers stopped the U-Haul for failing to maintain a lane of traffic. Mr. Frazier and his passenger were questioned, and gave slightly different accounts of their trip, and the police then searched the U-Haul with Mr. Frazier's permission. They found a "'cover load,'" consisting of a "combination set" of brand-new furniture and an old stove, washer and drier, none of which was tied down. They also found, hidden behind two mattresses in the back of the truck, large plastic bags with white pills, which were determined to be pseudoephedrine, a list I chemical. The officer who found the pills instructed that Mr. Frazier and the passenger be arrested. According to a state trooper who was present and testified at the trial, when Frazier was arrested, his reaction was neither angry, surprised, nor combative. Frazier did not say anything when the officers told him why he was being arrested.

After Mr. Frazier was arrested, he was read his Miranda rights, and he gave a statement to the effect that that he was driving the U-Haul cross-country for money but that he did not know that it contained pseudoephedrine.

Mr. Frazier was indicted for possessing pseudoephedrine knowing or having reasonable cause to know that it would be used to manufacture a controlled substance. His defense was that he had not known of the pills and that he had been, in effect, an innocent dupe of the person who hired him to drive the U-Haul cross-country. The government introduced evidence that when the pills were found and Mr. Frazier was arrested, he said nothing and exhibited neither surprise nor anger. In summation, the government argued that Mr. Frazier's non-reaction was evidence of his guilt. According to the government's summation, "[i]f a person has a friend who betrays them, what's the innocent person going to do when they discover they're going to jail . . . .Are they going to become combative, angry, emotional, demanding? There was none of that from . . . Mr. Frazier."

Mr. Frazier was convicted. On appeal, he argued that his right to silence had been violated by the government's introduction into evidence of his post-arrest, pre- Miranda silence. 2

The Constitutional Terrain

In analyzing the right to silence, it is useful to divide the terrain into three parts: (1) pre-arrest; (2) post-arrest but pre- Miranda ; and (3) post- Miranda . It is also useful to consider two ways that a defendant's silence may be used by the government in a criminal case: (a) as substantive evidence in the government's case in chief, or (b) for impeachment. The Supreme Court has spoken to most of these situations, but not all.

Frazier confronted the Eight Circuit with the use of post-arrest, pre- Miranda silence as substantive evidence. Noting that the circuits were split on the issue, the court held that use of Mr. Frazier's silence did not violate his Fifth Amendment right to remain silent. The court's analysis was succinct:

[T]he . . . precise issue is whether Frazier was under any compulsion to speak at the time of his silence. He was not. 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 [was] not as if Frazier refused to answer questions in the face of interrogation . . . .We do not decide today whether compulsion may exist under any other post-arrest, pre- Miranda circumstances.

Government Compulsion

• Government Compulsion Post-Arrest And Pre-Miranda. The right to remain silent derives from the Fifth Amendment's proviso that "no person . . . shall be compelled in any criminal case to be a witness against himself." 5 Mr. Frazier found that because there was "no governmental action . . . inducing [Mr. Frazier's] silence," there was no compulsion. Common sense strongly suggests, however, that a defendant who has been arrested and is in the custody of numerous police officers would feel some compulsion, even if the officers do not interrogate the defendant directly. Law enforcement officers could place the arrested defendant in circumstances — for example, by confronting him with apparently inculpatory evidence, by displaying sophisticated forensic techniques, by suggesting that other perpetrators are inculpating the defendant — such that the defendant felt that unless he spoke he would be inculpated. That is, he would feel compelled to speak.

The Supreme Court has recognized that law enforcement officers may deliberately elicit information from a defendant under arrest even without directly questioning him. In Fellers v. United States , 6 for example, the Court held that a defendant's Sixth Amendment right to counsel was violated when police arrested the indicted defendant, and, without questioning him directly, presented him with evidence against him in a manner calculated to induce him to speak — which he did, making inculpatory statements. The court observed that, notwithstanding that there was no interrogation, the police officers had deliberately elicited information from the defendant; as a consequence, the court held, the defendant's Sixth Amendment right to counsel was violated, and his conviction was reversed.

Although Fellers involved the Sixth Amendment right to counsel rather than Fifth Amendment right against self-incrimination (and indeed, the court noted that the "deliberate elicitation" standard relevant to the Sixth Amendment analysis was different from the "custodial interrogation" standard relevant to analysis under the Fifth Amendment). Fellers demonstrates at the very least that being in custody and the focus of the attentions of law enforcement officers is a vulnerable position for a criminal defendant, even absent formal interrogation.

Certainly, if, as Frazier suggests, the rule were that there was no right to remain silent post-arrest but pre- Miranda , then police would have an incentive to delay giving Miranda warnings, and to arrange situations in which the defendant would be forced into the awkward position of either speaking or remaining silent — in either case, possibly inculpating themselves. As explained by the U.S. Court of Appeals for the District of Columbia Circuit in United States v. Moore :

Although in the present case, interrogation per se had not begun, 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 . . . .[T]he defendant who stands silent must be treated as having asserted [the right to remain silent]. Prosecutorial comment upon that assertion would unduly burden the Fifth Amendment privilege . . . .We therefore think it evident that custody and not interrogation is the triggering mechanism for the right of pretrial silence under Miranda. Any other holding 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. 7

Furthermore, allowing post-arrest, pre- Miranda silence to be admitted into evidence would potentially significantly undermine the defendant's right not to testify. If Frazier were followed, then arresting officers would testify about the defendant's inculpatory silence. Depending on the circumstances, the defendant's silence may be quite ambiguous 8 and, thus, the officers' description of those circumstances may be extremely important to the jury. Inasmuch as there would often be no witnesses present other than the defendant himself and the officers, the defendant would effectively be required to testify in order to rebut the officers' version of events, and to explain why his silence was not inculpatory.

'Totality of Circumstances'

• The Undesirability of a Totality of the Circumstances Test. Although Frazier 's strong implication is that there is no compulsion (and thus no right to remain silent) prior to interrogation, the final sentence from Frazier quoted above — "We do not decide today whether compulsion may exist under any other post-arrest, pre- Miranda circumstances" — left the door slightly open to the argument that there is no per se rule, and the right to silence may precede interrogation, depending on the particular circumstances post-arrest, pre- Miranda . Frazier may mean that there is no bright-line rule, and whether a defendant's silence is admissible could be decided only upon an analysis of the particular circumstances of the arrest.

Conclusion

Such a rule would be far from ideal, because it would be very difficult to administer and would not provide guidance to either law enforcement officers or citizens who are arrested. Clear rules are preferable to govern activity at so anxious a time as arrest. A per se rule that compulsion begins with custody is the best rule for protecting the defendant's right to remain silent, and for guiding the actions of law enforcement officers.

Benjamin E. Rosenberg is a partner at Dechert LLP where he practices white-collar criminal defense litigation.

Endnotes:

1. 2005 U.S. App. LEXIS 226 (8th Circuit, Jan. 7, 2005)

2. Mr. Frazier also asserted that he was the subject of racial discrimination because he was targeted for investigation on account of his race; that there was insufficient evidence to sustain his conviction; and that there were certain sentencing errors. The Eighth Circuit rejected all of Mr. Frazier's arguments.

3. Compare Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000) ("[T]he use of a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment's privilege against self-incrimination."), United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987) ("The right to remain silent, unlike the right to counsel, attaches before the institution of formal adversary proceedings."), and United States v. Burson, 952 F.2d 1196, 1201 (10th Cir. 1991) (holding that, under the circumstances, the court erred in admitting an IRS agent's testimony regarding defendant's refusal to answer any questions during a non-custodial interrogation), with United States v. Oplinger, 150 F.3d 1061, 1067 (9th Cir. 1998) ("[W]e respectfully disagree with the First, Seventh, and Tenth Circuits, which have all held that pre-arrest silence comes within the proscription against commenting on a defendant's privilege against self incrimination[;] [i]n our view, the position those courts have endorsed is simply contrary to the unambiguous text of the Fifth Amendment . . . .") (internal citations omitted), and United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991) ("The government may comment on a defendant's silence if it occurred prior to the time he was arrested and given his Miranda warnings.") (citation omitted). See also United States v. McCann, 366 F.3d 46, 56-57 (1st Cir. 2004) (noting but not resolving issue), rev'd and remanded on other grounds, No. 04-5632, 2005 U.S. LEXIS 1122 (U.S. Jan. 24, 2005) (reversing and remanding in light of Booker).

4. Compare United States v. Velarde-Gomez, 269 F.3d 1023, 1029 (9th Cir. 2001) ("post-arrest, pre-Miranda silence cannot be admitted into evidence in the government's case in chief); (en banc) and United States v. Moore, 104 F.3d 377, 386 (D.C. Cir. 1997) (same: "It simply cannot be the case that a citizen's protection against self-incrimination only attaches when officers recite a certain litany of his rights.") and United States v. Hernandez, 948 F.2d 316, 322-23 (7th Cir. 1991) (silence pre-Miranda cannot be used in the government's case in chief) with United States v. Rivera, supra, 944 F.2d at 1568 and United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (admission of testimony on defendant's pre-Miranda silence is not error).

5. U.S. Const. amend. V; see also Griffin v. California, 380 US 609, 615 (1965) ("the Fifth Amendment . . . forbids . . . comments by the prosecution on the accused's silence").

6. 540 US 519 (2004).

7. 104 F.3d at 385.

8. See, e.g., United States v. Hale, 422 U.S. 171, 176 (1975) ("In most circumstances silence is so ambiguous that it is of little probative force.").