Salinas v. Texas, 133 S. Ct. 2174 (2013)

Without being placed in custody or receiving Miranda warnings, Salinas 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.

Salinas was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer’s question suggested that he was guilty. Salinas 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.”

Salinas’ 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) .

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.

Salinas cannot benefit from that principle because it is undisputed that his interview with police was voluntary. As Salinas himself acknowledges, he agreed to accompany the officers to the station and “was free to leave at any time during the interview.” That places Salinas’ 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 critical question is whether, under the “circumstances” of this case, Salinas 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.

Before Salinas 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.

By:  Chicago Federal Criminal Defense Attorney Michael J. Petro

 

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