Salinas v. Tex.

• Decision Date: 17 June 2013
• Docket Number: No. 12–246.,12–246.
• Citation: 186 L.Ed.2d 376,570 U.S. 178,133 S.Ct. 2174
• Parties: Genovevo SALINAS, Petitioner v. TEXAS.
• Court: U.S. Supreme Court

570 U.S. 178

133 S.Ct. 2174

186 L.Ed.2d 376

Genovevo SALINAS, Petitioner

v.TEXAS.

No. 12–246.

Supreme Court of the United States

Argued April 17, 2013.

Decided June 17, 2013.

Jeffrey L. Fisher, Stanford, CA, for Petitioner.

Alan K. Curry, Houston, TX, for Respondent.

Ginger D. Anders, for the United States as amicus curiae, by special leave of the Court, supporting the Respondent.

Neal Davis, Neal Davis Law Firm, PLLC, Houston, TX, Kevin K. Russell, Goldstein & Russell, P.C., Washington, DC, Jeffrey L. Fisher, Counsel of Record, Pamela S. Karlan, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, Dick DeGuerin, DeGuerin & Dickson, Houston, TX, for Petitioner.

Mike Anderson, District Attorney, Alan Keith Curry, Counsel of Record, Carol M. Cameron, Eric Kugler, David C. Newell, Assistant District Attorneys, Harris County District Attorney's Office, Houston, TX, for Respondent.

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, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (quoting United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943) ). Although "no ritualistic formula is necessary in order to invoke the privilege," Quinn v. United States, 349 U.S. 155, 164, 75 S.Ct. 668, 99 L.Ed. 964 (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.

I

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 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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 petitioner, 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 during 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. ––––, 133 S.Ct. 928, 184 L.Ed.2d 719 (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 (C.A.11 1991), with United States v. Moore, 104 F.3d 377, 386 (C.A.D.C.1997). But because petitioner did not invoke the privilege during his interview, we find it unnecessary to reach that question.

II

A

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, 658, n. 11, 96 S.Ct. 1178, 47 L.Ed.2d 370 (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, 104 S.Ct. 1136 (quoting Monia, 317 U.S., at 427, 63 S.Ct. 409 ). See also United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 71 L.Ed. 560 (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, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), or cure any potential self-incrimination through a grant of immunity, see Kastigar v. United States, 406 U.S. 441, 448, 92 S.Ct. 1653, 32 L.Ed.2d 212 (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, 100 S.Ct. 1358, 63 L.Ed.2d 622 (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, 610–611, 82 S.Ct. 1005, 8 L.Ed.2d 137 (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, 96 S.Ct. 1178.

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, 613–615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (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, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (Black, J., dissenting); see United States v. Patane, 542 U.S. 630, 637, 124 S.Ct. 2620, 159 L.Ed.2d 667 (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 petitioner 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, 86 S.Ct. 1602. 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., 104 S.Ct. 1136

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, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (public employment). See also Lefkowitz v. Cunningham, 431 U.S. 801, 802–804, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) (public office); Lefkowitz v. Turley, 414 U.S. 70, 84–85, 94 S.Ct. 316, 38 L.Ed.2d 274 (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...