The Silence of Salinas put to rest the chorus of “just stop talking” advice when a person is questioned by law enforcement, prior to arrest and custodial interrogation. It left an open question of whether there was anything a person could do to enjoy his Fifth Amendment rights. or was he just caught in a judicial Catch-22.

The Second Circuit answered the question in its opinion in United States v. Okatan.  In Salinas v. Texas, the Supreme Court held that the act of going silent, after having answered questions, was not an invocation of the right to remain silent, and therefore could be used as direct evidence against a defendant. Salinas voluntarily appeared for questioning, was not under arrest or subject to a custodial interrogation (and therefore wasn’t due a Miranda warning). But when the question asked wasn’t one he wanted to answer, he just stopped. Not good enough, the Court said.

For the crowd who sees the whole silence thing under the Constitution as neat, clean and obvious, it proved to be anything but. It’s a rat’s nest, filled with tiny nuanced twists and turns upon which constitutional rights rose and fell, and with them, convictions.  The question Salinas left behind was how, in a pre-arrest, non-custodial interrogation, a person could invoke the right to remain silent or the right to counsel without the invocation itself being admissible against him.

Much as these may be our constitutional rights, the perception remains deeply embedded in the American psyche that no one invokes rights except the guilty. As soon as the prosecution gets the invocation of rights in front of a jury, the defendant’s goose is cooked.

In Okatan, the defendant was questioned by a border patrol agent after he made an odd U-turn. The agent had been following him for a while, and picked his moment to pounce.

Boucher walked over to Okatan’s car, identified himself as a border patrol agent and asked Okatan if he was a United States citizen. Okatan said that he was and handed over his passport. Boucher then asked why Okatan had passed the rest area on the east side of the highway and made a U-turn to enter the Beekmantown rest area. Okatan replied that he had to use the bathroom. Boucher warned Okatan that lying to a federal officer is a criminal act and asked whether he was there to pick someone up. Okatan said that he wanted a lawyer. At that point, Boucher placed Okatan under arrest and transported him to the Champlain border patrol station.

Okatan’s lawyer moved to suppress, which was granted as to statements following the request for a lawyer, but not the request itself. The lawyer objected in every possible way throughout the trial, including reference to the invocation in summation, covering every possible angle of preservation, because it may not have been overwhelmingly clear to the trial judge that the defense took issue with the use of an invocation of a constitutional right as affirmative evidence against the defendant. The trial judge, Mae A. D’Agostino in the Northern District of New York, responded with the legal version of “meh.”

On appeal, Judge Lynch wrote that Okatan did what he was entitled to do under the Constitution by adequately conveying to the agent that he wanted to speak with a lawyer. The right existed despite his not being under arrest, but because the questioning raised an issue of potential jeopardy.

“To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman v. United States, 341 U.S. 479, 486-87 (1951).

This is a critical detail, distinguishing the exercise of the right to remain silent or seek advice of counsel from innocuous questions where no “injurious disclosure” would follow.  In other words, the privilege won’t be sustained if invoked when a cop asks your name and you simply prefer not to engage.

Second, unlike Salinas, who simply stopped talking during the course of an interrogation, Okatan affirmatively claimed the privilege before he fell silent.

While Okatan didn’t use any fancy language, which courts describe as “ritualistic formula” when they approve of the invocation and equivocal when they don’t, his affirmative request to speak to a lawyer was held sufficiently clear to put the agent on notice that he was invoking his rights.

Then, the Second Circuit got to the heart of the matter:

A prosecutor may not comment on a defendant’s failure to testify at trial. Griffin, 380 U.S. at 614. As the Supreme Court has explained, such comment would be “a penalty imposed by courts for exercising a constitutional privilege,” which “cuts down on the privilege by making its assertion costly.” Id. The same logic governs our decision today. Use of a defendant’s invocation of the privilege imposes the same cost no matter the context in which that invocation is made.

Provided there has been an otherwise valid invocation of rights, under circumstances where the privilege will be sustained, the invocation cannot be used against a defendant even pre-arrest, pre-custodial interrogation.

Clearly, this is a minefield for the person who wishes to rely on his right to remain silent and right to counsel.  While the Second Circuit came out the right way here, it nonetheless ignores the level of sophistication demanded of a regular guy to recognize the myriad details necessary to effectively exercise his constitutional right not to be interrogated. While it’s facile to say “ignorance of the law is no excuse,” it’s reached the level of requiring a Juris Doctor to know and appreciate the rules imposed for the exercise of rights under the Fifth Amendment.

That said, at least the court held that the defendant would not be placed in that Catch-22 of either responding the police interrogation, whether truthfully or falsely (and thereby committing a violation of 18 U.S.C. §1001), or having his attempt to invoke his rights used against him.

So back to the bottom line of what to do when the cops ask questions nicely, the answer for now appears to be await a substantive question, the answer to which might create a risk of jeopardy, and then clearly say “I want to speak with my lawyer.”  Sorry that this has become so prolix, but it’s better than getting it wrong.

Also: See Gideon’s take on Okatan as well.

H/T Kathleen Casey