U.S. v. Saechao, 04-30156.

Citation418 F.3d 1073
Decision Date12 August 2005
Docket NumberNo. 04-30156.,04-30156.
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Phata SAECHAO, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Richard A. Friedman, United States Department of Justice, Washington, DC (Argued); Karen J. Immergut, Frederic N. Weinhouse, United States Attorney's Office, Portland, OR, (On the Briefs), for the plaintiff-appellant.

Lisa Hay, Office of the Federal Public Defender, Portland, OR, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon; James A. Redden, District Judge, Presiding. D.C. No. CR-03-00447-RAE.

Before REINHARDT, BERZON, and BYBEE, Circuit Judges.

REINHARDT, Circuit Judge.


The issue on this appeal is whether a probationer who provides incriminating information to his probation officer in response to questions from that officer, and does so pursuant to a probation condition that requires him to "promptly and truthfully answer all reasonable inquiries" from the officer or face revocation of his probation, is "compelled" to give incriminating evidence within the meaning of the Fifth Amendment. Because we conclude that the state took the "impermissible step" of requiring the probationer "to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent," Minnesota v. Murphy, 465 U.S. 420, 436, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), we hold that his admission of criminal conduct was compelled by a "classic penalty situation" and the evidence obtained by the probation officer may not be used against him in a criminal proceeding. We therefore affirm the district court's order suppressing the fruits of the state's unlawful conduct.


Phata Saechao pled guilty to a state felony offense and was sentenced to state probation. The felony, which involved an act of domestic violence, was his first. The day after his plea, Saechao met with his intake officer, Heather Fowler, to review the conditions of his probation. Condition number 11 required Saechao to "promptly and truthfully answer all reasonable inquiries by the Department of Correction or County Community Correction Agencies," and condition number 12 prohibited him from possessing "weapons, firearms, or dangerous animals." The terms of his probation also provided that failure to comply with any of the conditions was grounds for arrest, revocation of probation, or modification of conditions. Saechao signed the probation form, but was not asked by Fowler at the time whether he possessed a firearm. After the intake meeting, Saechao was told to call the domestic violence unit to report to his assigned probation officer within a week's time.

After the intake meeting, Saechao was assigned to Probation Officer Andrew Altman of the domestic violence unit for the supervision of his probation. Saechao attempted to contact Altman several times over the next month and finally had his first meeting with Altman over a month after his initial intake interview with Fowler. According to Altman's testimony, the meeting was designed to "figure out the personal needs of [the probationer] . . ., [to] try and assess the compliance with the conditions of supervision, [to] make sure [the probationer is] very clear about what the conditions are, [to] review them again, . . . [and to] get [his] expectations to them."

Altman began the meeting by reviewing once again the conditions of Saechao's probation, including the requirement that Saechao "promptly and truthfully answer" Altman's inquiries. Altman then began the interview, during which he repeatedly asked whether Saechao possessed a firearm. As a result of Altman's questioning, Saechao eventually acknowledged that there was a 30.06 hunting rifle that he used for deer hunting in the apartment that he shared with his parents, a rifle that he possessed legally prior to the time of his conviction. Possession of the firearm became illegal under the felon-in-possession statute upon Saechao's felony conviction. See 18 U.S.C. § 922(g)(1). Altman later testified that it was clear from the interview that Saechao had been concerned about the rifle even before the meeting, but that he "didn't know what to do with the firearm. He had paid money for the firearm. It was worth money, and he hadn't made a decision what to do with it at [that] point."

After Saechao's admission of "possession," Altman explained the seriousness of his conduct and convinced Saechao to accompany him and Probation Officer Matthew Ferguson back to the apartment Saechao shared with his parents so that the officers could remove the rifle. After speaking with his parents, Saechao directed the officers to a room where Altman and Ferguson confiscated an unloaded 30.06 hunting rifle from underneath the mattress. Altman and Ferguson then left. Saechao was not arrested at the time.

Altman later discussed the case with his supervisor and decided that instead of excusing Saechao's violation, or even pursuing a revocation of probation, they would turn the evidence over to the federal authorities so that they could initiate a federal prosecution against him for possession of a firearm by a convicted felon. Altman acknowledged that the referral to federal authorities was not routine.1 A month later, the federal authorities arrested Saechao and charged him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

The district court granted Saechao's motion to suppress his statements to Altman. It found that Saechao "did not have free choice to refuse to answer questions about firearms precisely because those questions related to a specific condition of his probation." United States v. Saechao, No. CR 03-447-RE (D.Or. Mar. 5, 2004) (opinion and order granting the defendant's motion to suppress statements). Thus, the district court concluded, the statements were "compelled," in violation of the Fifth Amendment to the United States Constitution. The United States appeals the suppression order.


We must determine whether Saechao was compelled by threat of penalty to answer his probation officer's questions regarding his possession of firearms. In Murphy, the Supreme Court explained that if a state attaches "[t]he threat of punishment for reliance on the privilege" against self-incrimination by asserting either "expressly or by implication. . . that invocation of the privilege would lead to revocation of probation . . . the probationer's answers would be deemed compelled and inadmissible in a criminal prosecution." Id. at 435, 104 S.Ct. 1136 (emphasis added). Because the state of Oregon took the "impermissible step" of "requir[ing] [Saechao] to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent," we hold that Saechao's statements were compelled and therefore inadmissible in the ensuing criminal prosecution. Id. at 436, 104 S.Ct. 1136.

As a general rule, "the [Fifth] Amendment speaks of compulsion. . . . If [an individual] desires the protection of the privilege, he must claim it or he will not be considered to have been `compelled' within the meaning of the Amendment." Id. at 427, 104 S.Ct. 1136 (quoting United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943) (first alteration in original) (internal quotation marks omitted)). There are, however, exceptions to this rule. The Court has held that if an individual is subjected to a practice that "den[ies him] . . . a `free choice to admit, to deny, or to refuse to answer,'" then any statement he makes is considered involuntary and cannot be used in a criminal proceeding. Garner v. United States, 424 U.S. 648, 657, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976) (quoting Lisenba v. California, 314 U.S. 219, 241, 62 S.Ct. 280, 86 L.Ed. 166 (1941)). In these cases, the Fifth Amendment is considered "self-executing," and an individual does not need to invoke it in order to have his admissions suppressed in an ensuing criminal prosecution. Murphy, 465 U.S. at 435, 104 S.Ct. 1136.

One instance in which an individual is held to have been denied the free choice to admit, to deny, or to refuse to answer is what the Court refers to as a "penalty situation."2 Id. If an individual's refusal to answer incriminating questions subjects him to a penalty, then the Fifth Amendment is self-executing and any statements made under threat of such penalty are inadmissible.3 In the probationary context, this means that although the state is permitted to require a probationer to "appear and discuss matters affecting his probationary status," the probationer may not be required under threat of revocation of probation to respond to "questions put to[him], however relevant to his probationary status, [that] call for answers that would incriminate him in a pending or later criminal proceeding." Id. The key to whether the Fifth Amendment is self-executing in probation cases lies in the following statement by the Court: "[I]f the State, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer's answers would be deemed compelled and inadmissible in a criminal prosecution." Id. (emphasis added). As the Supreme Court explained, in order for a court to determine whether a probationer is subject to a penalty situation, it "must inquire whether [his] probation conditions merely required him to appear and give testimony about matters relevant to his probationary status or whether they went further" by taking "the extra, impermissible step" of requiring him "to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent." Id. at 436, 104 S.Ct. 1136.

Although the Supreme Court in Murphy set forth the governing legal standard...

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