SCOTUS rules that remaining silent is NOT an invocation of the RIGHT to remain silent – and can be used against you a trial!

Today, June 17, the U.S. Supreme Court issued its opinion in Salinas v. Texas.  The gist of the opinion is that not saying anything is not an invocation of the right to remain silent guaranteed under the 5th Amendment.  Yes, you read that correctly.  It says that someone being questioned by police has to say the magic words, and actually take the formal action of invoking the right.  This case says that a prosecutor can then actually comment on the silence in court!!

It is clear that once a person is arrested and the police start an interrogation, the Miranda warnings are (supposed to be) given.  “You have the right to remain silent, right to a lawyer if you cannot afford one and anything you say can be used against you in court . . .  ”  The Supreme Court has previously held that if a defendant elects not to testify at the trial, the prosecutor comment on that silence – the silence at trial, in the courtroom.  This case says that the out-of-court silence can be used against the defendant in trial.

In an opinion by Justices Alito, Scalia, and Thomas, the SCUTOS did not tell us specifically (see below) whether or not the prosecutor can use silence outside the courtroom as evidence of guilt.  The Court said a defendant who remained silent during police questioning and did not “formally” invoke the 5th Amendment right to remain silent, would in turn allow prosecutors to offer commentary to the jury on that silence in court.  This decision now put the burden on the individual to invoke, not the government to not use the silence.  That part of the decision is most troublesome.  As the dissent notes, in the circumstances of the case, it was clear that the defendant was invoking his right to remain silent. . . by being silent.  This is going to be particularly problematic for persons who who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol.  They may be trying to exercise a right, only to have their silence be argued to a jury; I can hear it now:  “this defendant had an opportunity right then and there to tell the officers his side of the story, and didn’t.”  Oh, boy, at the can of worms this is going to open.

As one commentator has said:

Surprisingly, the Court did not answer the primary question court watchers were expecting, which was whether a prosecutor can deride a person’s reliance upon the right against self-incrimination when that person has not been arrested. The Court said it did not have to reach that question because the person here, Salinas, never really properly invoked his constitutional right against self incrimination. And because he didn’t, there was nothing wrong with the prosecutor’s comments at his trial.  This is a lousy ruling. . . . This is a bad day for the Bill of Rights.

What say you: Gov. Rick Scott signs bill to speed up executions in Florida

How do you feel about this?  Doesn’t really shorten the appeal process, or the post-conviction procedure.  Apparently kicks in to speed any clemency review and then sign the death warrant no later than 30 days after, and execute no more than 6 months after that.  So long as the appeal process is complete, I see no legal reason for the delay in carrying out the sentence.

via Gov. Rick Scott signs bill to speed up executions in Florida | Tampa Bay Times.

Officer asking for consent before handing back driver license turns consensual encounter into a “stop” and consent invalid

Horne v. State, 38 Fla. L. Weekly D1155a (Fla. 2d DCA May 24, 2013):  Officer stopped Hornse while she was walking, ostensibly as a consensual encounter.  She gave him her driver’s license, and a computer search returned no active warrants. At some point during the encounter, the deputy asked to conduct a search of Horne that would include reaching into her pockets. Horne consented to the search.  He found controlled substances in her jacket pocket.

She filed a motion to suppress, arguing that the officer’s failure to return her driver’s license after completing the warrants check converted a consensual encounter into a detention and that therefore she could not have freely consented to the search of her person.

The FLorida criminal appeal court noted that there was competent, substantial evidence in the record to support the trial court’s determination that Horne voluntarily gave her license to the officer, and as such, we agree that her initial encounter with the police was consensual.  However,  noting that the nature of an encounter may change at any time during its course, the appeal court  focused on the nature of the encounter at the time of the officer’s request to search.  The Second District Court of Appeal noted that at that time, any basis for the encounter with Horne, consensual or otherwise, had ended at the conclusion of Horne’s clear warrants check.

The criminal appeal court  concluded

[T]the trial court’s factual findings are supported by competent, substantial evidence but that the trial court erred in applying the law to the facts because under our de novo review, it afforded too much weight to the preliminary facts leading up to the warrants check and did not afford enough weight to those additional circumstances central to when the officer was actually requesting Horne’s consent. Under the totality of the instant circumstances, the officer’s asking to search Horne without returning her license outweighs the fact that she initially voluntarily spoke with the officer and consented to the warrants check.  When all of the facts as found by the trial court are considered and afforded the appropriate weight under the applicable case law, it was error to conclude that a reasonable person in Horne’s circumstances would think she was free to leave or that she was not detained as a matter of law. Because the trial court erroneously denied the motion to suppress on that basis, we reverse Horne’s conviction and sentence.

COMMENTARY:  This case presents two common problems, one on the street and one in the courtroom.  First, the line of the Fourth Amendment is blurred on the streets, and law enforcement officers regularly cross it – sometimes inadvertently, sometimes on purpose.  Second, defense attorneys are not always up-to-date on search and seizure law, and can miss issues like this one.  Call New Port Richey Criminal Defense attorney Joe Bodiford at 727-843-4009 or visit

Florida Supreme Court: cops can’t search cell phone without a warrant

Today, the Florida Supreme held that while law enforcement officers properly separated and assumed possession of a cell phone from a defendant’s person during the search incident to arrest, a warrant was required before the information, data, and content of the cell phone could be accessed and searched by law enforcement.

Smallwood v. State, 38 Fla. L. Weekly S271a (Fla. May 2, 2012)