570 U.S. 178 (2013), 12-246, Salinas v. Texas

Docket Nº:12-246
Citation:570 U.S. 178, 133 S.Ct. 2174, 186 L.Ed.2d 376, 81 U.S.L.W. 4467, 24 Fla.L.Weekly Fed. S 294
Opinion Judge:ALITO, Justice
Party Name:Genovevo SALINAS, Petitioner v. TEXAS.
Attorney: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 & Russel...
Judge Panel:Justice ALITO, joined by THE CHIEF JUSTICE and Justice KENNEDY, concluded that petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question. Pp. 2178 - 2184. ALITO, J., announced the judgment of the Court and delivered an opi...
Case Date:June 17, 2013
Court:United States Supreme Court
 
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Page 178

570 U.S. 178 (2013)

133 S.Ct. 2174, 186 L.Ed.2d 376, 81 U.S.L.W. 4467, 24 Fla.L.Weekly Fed. S 294

Genovevo SALINAS, Petitioner

v.

TEXAS.

No. 12-246

United States Supreme Court

June 17, 2013

Argued April 17, 2013

Page 179

[Copyrighted Material Omitted]

Page 180

[133 S.Ct. 2175] Syllabus [*]

Petitioner, without being placed in custody or receiving Miranda warnings, voluntarily answered some of a police officer’s questions about a murder, but fell [133 S.Ct. 2176] silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitioner’s murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the prosecution’s use of his silence in its case in chief violated the Fifth Amendment.

Held : The judgment is affirmed.

369 S.W.3d 176, affirmed.

Justice ALITO, joined by THE CHIEF JUSTICE and Justice KENNEDY, concluded that petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question. Pp. 2178 - 2184.

(a) To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who " ‘desires the protection of the privilege ... must claim it’ " at the time he relies on it. Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136, 79 L.Ed.2d 409. This Court has recognized two exceptions to that requirement. First, a criminal defendant need not take the stand and assert the privilege at his own trial. Griffin v. California, 380 U.S. 609, 613-615, 85 S.Ct. 1229, 14 L.Ed.2d 106. Petitioner’s silence falls outside this exception because he had no comparable unqualified right not to speak during his police interview. Second, a witness’ failure to invoke the privilege against self-incrimination must be excused where governmental coercion makes his forfeiture of the privilege involuntary. See, e.g., Miranda v. Arizona, 384 U.S. 436, 467-468, and n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694. Petitioner cannot benefit from this principle because it is undisputed that he agreed to accompany the officers to the station and was free to leave at any time. Pp. 2178 - 2181.

(b) Petitioner seeks a third exception to the express invocation requirement for cases where the witness chooses to stand mute rather than give an answer that officials suspect would be incriminating, but this Court’s cases all but foreclose that argument. A defendant normally does not invoke the privilege by remaining silent. See Roberts v. United States, 445 U.S. 552, 560, 100 S.Ct. 1358, 63 L.Ed.2d 622. And the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness. See Murphy, supra, at 427-428, 104 S.Ct. 1136. For the same reasons that neither a witness’ silence nor official suspicion is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, they do not do so together. The proposed exception also would be difficult to reconcile with Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098, where this Court held in the closely related context of post-Miranda silence that a defendant failed to invoke his right to cut off police questioning when he remained silent for 2 hours and 45 minutes. Id., at __, 130 S.Ct. 2250.

Petitioner claims that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case like his, but such silence is "insolubly ambiguous." See Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 49 L.Ed.2d 91. To be sure, petitioner might have declined to answer the officer’s question in reliance on his constitutional privilege. But he also might have done so because he was trying to think of a good lie, because he was embarrassed, or because he was 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 [133 S.Ct. 2177] also suggests 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." But the Fifth Amendment guarantees that no one may be "compelled in any criminal case to be a witness against himself," not an unqualified "right to remain silent." 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, 104 S.Ct. 1136. Pp. 2180 - 2183.

(c) Petitioner’s argument that applying the express invocation requirement in this context will be unworkable is also unpersuasive. The Court has long required defendants to assert the privilege in order to subsequently benefit from it, and this rule has not proved difficult to apply in practice. Pp. 2182 - 2184.

Justice THOMAS, joined by Justice SCALIA, concluded that petitioner’s claim would fail even if he invoked the privilege because the prosecutor’s comments regarding his precustodial silence did not compel him to give self-incriminating testimony. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, in which this Court held that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant’s failure to testify, should not be extended to a defendant’s silence during a precustodial interview because Griffin "lacks foundation in the Constitution’s text, history, or logic." See Mitchell v. United States, 526 U.S. 314, 341, 119 S.Ct. 1307, 143 L.Ed.2d 424 (THOMAS, J., dissenting). P. 2185.

ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C.J., and KENNEDY, J., joined. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

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.

OPINION

ALITO, Justice

Page 181

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 [133 S.Ct. 2178] 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

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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...

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