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7.6: Salinas v. Texas 570 US____ (2013)

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    NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.



    No. 12–246



    on writ of certiorari to the court of criminal appeals of texas

    [June 17, 2013]

    Justice Alito announced the judgment of the Court and delivered an opinion in which The Chief Justice and Justice Kennedy join.

    Without being placed in custody or receiving Miranda warnings, petitioner voluntarily answered the questions of a police officer who was investigating a murder. But petitioner balked when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match petitioner’s shotgun. Petitioner was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer’s question suggested that he was guilty. Petitioner claims that this argument violated the Fifth Amendment, which guarantees that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”

    Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self-executing” and that a witness who desires its protection “ ‘must claim it.’ ” Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 U. S. 424, 427 (1943) ). Although “no ritualistic formula is necessary in order to invoke the privilege,” Quinn v. United States, 349 U. S. 155, 164 (1955) , a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed.


    On the morning of December 18, 1992, two brothers were shot and killed in their Houston home. There were no witnesses to the murders, but a neighbor who heard gunshots saw someone run out of the house and speed away in a dark-colored car. Police recovered six shotgun shell casings at the scene. The investigation led police to petitioner, who had been a guest at a party the victims hosted the night before they were killed. Police visited petitioner at his home, where they saw a dark blue car in the driveway. He agreed to hand over his shotgun for ballistics testing and to accompany police to the station for questioning.

    Petitioner’s interview with the police lasted approximately one hour. All agree that the interview was noncustodial, and the parties litigated this case on the assumption that he was not read Miranda warnings. See Mi- randa v. Arizona, 384 U. S. 436 (1966) . For most of the interview, petitioner answered the officer’s questions. But when asked whether his shotgun “would match the shells recovered at the scene of the murder,” App. 17, petitioner declined to answer. Instead, petitioner “[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.” Id., at 18. After a few moments of silence, the officer asked additional questions, which petitioner answered. Ibid.

    Following the interview, police arrested petitioner on outstanding traffic warrants. Prosecutors soon concluded that there was insufficient evidence to charge him with the murders, and he was released. A few days later, police obtained a statement from a man who said he had heard petitioner confess to the killings. On the strength of that additional evidence, prosecutors decided to charge peti- tioner, but by this time he had absconded. In 2007, police discovered petitioner living in the Houston area under an assumed name.

    Petitioner did not testify at trial. Over his objection, prosecutors used his reaction to the officer’s question dur- ing the 1993 interview as evidence of his guilt. The jury found petitioner guilty, and he received a 20-year sentence. On direct appeal to the Court of Appeals of Texas, petitioner argued that prosecutors’ use of his silence as part of their case in chief violated the Fifth Amendment. The Court of Appeals rejected that argument, reasoning that petitioner’s prearrest, pre-Miranda silence was not “compelled” within the meaning of the Fifth Amendment. 368 S. W. 3d 550, 557–559 (2011). The Texas Court of Criminal Appeals took up this case and affirmed on the same ground. 369 S. W. 3d 176 (2012).

    We granted certiorari, 568 U. S. ___ (2013), to resolve a division of authority in the lower courts over 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. Compare, e.g., United States v. Rivera, 944 F. 2d 1563, 1568 (CA11 1991), with United States v. Moore, 104 F. 3d 377, 386 (CADC 1997). But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that question.



    The privilege against self-incrimination “is an exception to the general principle that the Government has the right to everyone’s testimony.” Garner v. United States, 424 U. S. 648 , n. 11 (1976). 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. Murphy, 465 U. S., at 427 (quoting Monia, 317 U. S., at 427). See also United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113 (1927) .

    That 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, 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 , n. 7 (1980) (“A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give”); Hutcheson v. United States, 369 U. S. 599 –611 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege “assures that the Government obtains all the information to which it is entitled.” Garner, supra, at 658, n. 11.

    We have previously recognized two exceptions to the requirement that witnesses invoke the privilege, but neither applies here. First, we held in Griffin v. California, 380 U. S. 609 –615 (1965), that a criminal defendant need not take the stand and assert the privilege at his own trial. That exception reflects the fact that a criminal defendant has an “absolute right not to testify.” Turner v. United States, 396 U. S. 398, 433 (1970) (Black, J., dissenting); see United States v. Patane, 542 U. S. 630, 637 (2004) (plurality opinion). Since a defendant’s reasons for remaining silent at trial are irrelevant to his constitutional right to do so, requiring that he expressly invoke the privilege 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. Because pe- titioner had no comparable unqualified right during his interview with police, his silence falls outside the Griffin exception.

    Second, we have held that a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary. Thus, in Miranda, we said that a suspect who is subjected to the “inherently compelling pressures” of an unwarned custodial interrogation need not invoke the privilege. 384 U. S., at 467–468, and n. 37. 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.” Murphy, supra, at 429–430.

    For similar reasons, we have held that threats to withdraw a governmental benefit such as public employment sometimes make exercise of the privilege so costly that it need not be affirmatively asserted. Garrity v. New Jersey, 385 U. S. 493, 497 (1967) (public employment). See also Lefkowitz v. Cunningham, 431 U. S. 801 –804 (1977) (public office); Lefkowitz v. Turley, 414 U. S. 70 –85 (1973) (public contracts). And where assertion of the privilege would itself tend to incriminate, we have allowed witnesses to exercise the privilege through silence. See, e.g., Leary v. United States, 395 U. S. 6 –29 (1969) (no requirement that taxpayer complete tax form where doing so would have revealed income from illegal activities); Albertson v. Subversive Activities Control Bd., 382 U. S. 70 –79 (1965) (members of the Communist Party not required to complete registration form “where response to any of the form’s questions . . . might involve [them] in the admission of a crucial element of a crime”). The principle that unites all of those cases is that a witness need not expressly invoke the privilege where some form of official compulsion denies him “a ‘free choice to admit, to deny, or to refuse to answer.’ ” Garner, 424 U. S., at 656–657 (quoting Lisenba v. California, 314 U. S. 219, 241 (1941) ).

    Petitioner cannot benefit from that principle because it is undisputed that his interview with police was voluntary. As petitioner himself acknowledges, he agreed to accompany the officers to the station and “was free to leave at any time during the interview.” Brief for Petitioner 2–3 (internal quotation marks omitted). That places petitioner’s situation outside the scope of Miranda and other cases in which we have held that various forms of governmental coercion prevented defendants from voluntarily invoking the privilege. The dissent elides this point when it cites our precedents in this area for the proposition that “[c]ircumstances, rather than explicit invocation, trigger the protection of the Fifth Amendment.” Post, at 7–8 (opinion of Breyer, J.). The critical question is whether, under the “circumstances” of this case, petitioner was deprived of the ability to voluntarily invoke the Fifth Amendment. He was not. We have before us no allegation that petitioner’s failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds. Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment.


    Petitioner urges us to adopt a third exception to the in- vocation requirement for cases in which a witness stands mute and thereby declines to give an answer that of- ficials suspect would be incriminating. Our cases all but foreclose such an exception, which would needlessly burden the Government’s interests in obtaining testimony and prosecuting criminal activity. We therefore decline petitioner’s invitation to craft a new exception to the “general rule” that a witness must assert the privilege to subsequently benefit from it. Murphy, 465 U. S., at 429.

    Our cases establish that a defendant normally does not invoke the privilege by remaining silent. In Roberts v. United States, 445 U. S. 552 , for example, we rejected the Fifth Amendment claim of a defendant who remained silent throughout a police investigation and received a harsher sentence for his failure to cooperate. In so ruling, we explained that “if [the defendant] believed that his failure to cooperate was privileged, he should have said so at a time when the sentencing court could have determined whether his claim was legitimate.” Id., at 560. See also United States v. Sullivan, 274 U. S. 259 –264 (1927); Vajtauer, 273 U. S., at 113. [ 1 ] A witness does not expressly invoke the privilege by standing mute.

    We have also repeatedly held that the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incrim- inate the witness. Thus, in Murphy we held that the defendant’s self-incriminating answers to his probation of- ficer were properly admitted at trial because he failed to invoke the privilege. 465 U. S., at 427–428. In reaching that conclusion, we rejected the notion “that a witness must ‘put the Government on notice by formally availing himself of the privilege’ only when he alone ‘is reasonably aware of the incriminating tendency of the questions.’ ” Id., at 428 (quoting Roberts, supra, at 562, n.* (Brennan, J., concurring)). See also United States v. Kordel, 397 U. S. 1, 7 (1970) . [ 2 ]

    Petitioner does not dispute the vitality of either of those lines of precedent but instead argues that we should adopt an exception for cases at their intersection. Thus, petitioner would have us hold that although neither a wit- ness’ silence nor official suspicions are enough to excuse the express invocation requirement, the invocation requirement does not apply where a witness is silent in the face of official suspicions. For the same reasons that neither of those factors is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, we conclude that they do not do so together. A contrary result would do little to protect those genuinely relying on the Fifth Amendment privilege while placing a needless new burden on society’s interest in the admission of evidence that is probative of a criminal defendant’s guilt.

    Petitioner’s proposed exception would also be very difficult to reconcile with Berghuis v. Thompkins, 560 U. S. 370 (2010) . There, we held in the closely related context of post-Miranda silence that a defendant failed to invoke the privilege when he refused to respond to police questioning for 2 hours and 45 minutes. 560 U. S., at ___ (slip op., at 3, 8–10). If the extended custodial silence in that case did not invoke the privilege, then surely the momentary silence in this case did not do so either.

    Petitioner and the dissent attempt to distinguish Berg- huis by observing that it did not concern the admissi- bility of the defendant’s silence but instead involved the admissibility of his subsequent statements. Post, at 8–9 (opinion of Breyer, J.). But regardless of whether prosecutors seek to use silence or a confession that follows, the logic of Berghuis applies with equal force: A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment privilege. [ 3 ]

    In support of their proposed exception to the invocation requirement, petitioner and the dissent argue that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case such as this one. Reply Brief 17; see post, at 9–10 (Breyer, J., dissenting). But whatever the most probable explanation, such silence is “insolubly ambiguous.” See Doyle, v. Ohio, 426 U. S. 610, 617 (1976) . To be sure, someone might decline to answer a 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. Petitioner alone knew why he did not answer the officer’s question, and it was therefore his “burden . . . to make a timely assertion of the privilege.” Garner, 424 U. S., at 655.

    At oral argument, counsel for petitioner suggested that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his “right to remain silent.” Tr. of Oral Arg. 26–27; see post, at 10 (Breyer, J., dissenting); Michigan v. Tucker, 417 U. S. 433, 439 (1974) (observing that “virtually every schoolboy is familiar with the concept, if not the language” of the Fifth Amendment). But popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself”; it does not establish an unqualified “right to remain silent.” A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim. See Hoffman, 341 U. S., at 486–487. [ 4 ]

    In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing. Murphy, 465 U. S., at 427–428; Garner, supra, at 654, n. 9. Statements against interest are regularly admitted into evidence at criminal trials, see Fed. Rule of Evid. 804(b)(3), and there is no good reason to approach a defendant’s silence any differently.


    Finally, we are not persuaded by petitioner’s arguments that applying the usual express invocation requirement where a witness is silent during a noncustodial police interview will prove unworkable in practice. Petitioner and the dissent suggest that our approach will “unleash complicated and persistent litigation” over what a suspect must say to invoke the privilege, Reply Brief 18; see post, at 11–12 (opinion of Breyer, J.), but our cases have long required that a witness assert the privilege to subsequently benefit from it. That rule has not proved difficult to apply. Nor did the potential for close cases dissuade us from adopting similar invocation requirements for suspects who wish to assert their rights and cut off police questioning during custodial interviews. Berghuis, 560 U. S., at ___ (slip op., at 8–10) (requiring suspect to unambiguously assert privilege against self-incrimination to cut off custodial questioning); Davis v. United States, 512 U. S. 452, 459 (1994) (same standard for assertions of the right to counsel).

    Notably, petitioner’s approach would produce its own line-drawing problems, as this case vividly illustrates. When the interviewing officer asked petitioner if his shotgun would match the shell casings found at the crime scene, petitioner did not merely remain silent; he made movements that suggested surprise and anxiety. At precisely what point such reactions transform “silence” into expressive conduct would be a difficult and recurring question that our decision allows us to avoid.

    We also reject petitioner’s argument that an express invocation requirement will encourage police officers to “ ‘unfairly “tric[k]” ’ ” suspects into cooperating. Reply Brief 21 (quoting South Dakota v. Neville, 459 U. S. 553, 566 (1983) ). Petitioner worries that officers could unduly pressure suspects into talking by telling them that their silence could be used in a future prosecution. But as petitioner himself concedes, police officers “have done nothing wrong” when they “accurately stat[e] the law.” Brief for Petitioner 32. We found no constitutional infirmity in government officials telling the defendant in Murphy that he was required to speak truthfully to his parole officer, 465 U. S., at 436–438, and we see no greater danger in the interview tactics petitioner identifies. So long as police do not deprive a witness of the ability to voluntarily invoke the privilege, there is no Fifth Amendment violation.

    *  *  *

    Before petitioner could rely on the privilege against self-incrimination, he was required to invoke it. Because he failed to do so, the judgment of the Texas Court of Criminal Appeals is affirmed.

    It is so ordered.


    1   The dissent argues that in these cases “neither the nature of the questions nor the circumstances of the refusal to answer them provided any basis to infer a tie between the silence and the .” Post, at 5–6 (opinion of Breyer, J.). But none of our precedents suggests that governmental officials are obliged to guess at the meaning of a witness’ unexplained silence when implicit reliance on the seems probable. Roberts does not say as much, despite its holding that the defendant in that case was required to explain the basis for his failure to cooperate with an investigation that led to his prosecution. 445 U. S., at 559.
    2   Our cases do not support the distinction the dissent draws between silence and the failure to invoke the privilege before making incriminating statements. See post, at 7 (Breyer, J., dissenting). For example, Murphy, a case in which the witness made incriminating statements after failing to invoke the privilege, repeatedly relied on Robertsand Vajtauer—two cases in which witnesses remained silent and did not make incriminating statements. 465 U. S., at 427, 429, 455–456, n. 20. Similarly, Kordel cited Vajtauer, among other cases, for the proposition that the defendant’s “failure at any time to assert the constitutional privilege leaves him in no position to complain now that he was compelled to give testimony against himself.” 397 U. S., at 10, and n. 18.
    3   Petitioner is correct that due process prohibits prosecutors from pointing to the fact that a defendant was silent after he heard Miranda warnings, Doyle v. Ohio, –618 (1976), but that rule does not apply where a suspect has not received the warnings’ implicit promise that any silence will not be used against him, Jenkins v. Anderson, .
    4   The dissent suggests that officials in this case had no “special need to know whether the defendant sought to rely on the protections of the .” Post, at 4 (opinion of Breyer, J.). But we have never said that the government must demonstrate such a need on a case-by-case basis for the invocation requirement to apply. Any such rule would require judicial hypothesizing about the probable strategic choices of prosecutors, who often use immunity to compel testimony from witnesses who invoke the .

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