Your Silence Can Be Used Against You…

Texas law now allows your silence to be used against you whether you testify at your trial or not – another excellent reason to never voluntarily talk to law enforcement officers. In Salinas v. State, No. 14-09-00395-CR, 2011 WL 903984 (Tex.App.-Houston [14 Dist.] Mar 17, 2011) the Court held that the Fifth Amendment to the United States Constitution has no applicability to pre-arrest, pre-Miranda silence used as substantive evidence in cases in which the defendant does not testify. To read the Court’s opinion, click here.

As a result of the Salinas decision, if you voluntarily talk to law enforcement officers and refuse to answer a question or otherwise remain silent when asked a question, your silence can be placed into evidence and the prosecution can argue to the jury that your silence is evidence of guilt.

Since 1980 the law has been clear that if a defendant does testify at his trial, his pre-arrest silence can be used to impeach him. See Jenkins v. Anderson, 447 U.S. 231, 238-240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). The United States Supreme Court held that the use of pre-arrest silence to impeach does not violate the Fifth Amendment because “impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.” Jenkins at 238, 100 S.Ct. 2124.

Although Texas law now allows pre-arrest silence to be used against a non-testifying defendant, the United States Supreme Court has yet to decide what protections, if any, the Fifth Amendment affords to pre-arrest silence when the defendant does not testify and his silence is introduced by the State not for impeachment but in its case-in-chief.

Haas v. Texas

Haas v. Texas, 172 S.W. 3d 42 (Tex.App. – Waco 2005 pet. ref’d.) is a great case to read to better understand search and seizure law that is applicable in my illegal drug and money laundering cases. It is a case that stems from a traffic stop (speeding and following too closely) on Interstate 10 near Vidor, Texas. Vidor is in southeast Texas just east of Beaumont. The facts are strikingly similar to what I routinely see in my practice. To read the Court’s opinion, click here.

Here are a few of the rules of law set out in Haas:

  • To suppress evidence on an alleged violation of Fourth Amendment rights, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct, and defendant satisfies this burden by establishing that a search or seizure occurs without a warrant, and once the defendant makes this showing, the burden shifts to the State, which must then establish that the search or seizure was conducted with a warrant or was reasonable.
  • A law enforcement officer may lawfully stop a motorist who commits a traffic violation.
  • In general, the decision to stop an automobile is reasonable when an officer has probable cause to believe that a traffic violation has occurred.
  • A traffic stop is a “seizure” within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention is quite brief.
  • Officers may stop and briefly detain persons (Terry stops) suspected of criminal activity on less information than is constitutionally required for probable cause to arrest.
  • Because a routine traffic stop is more analogous to an investigative detention than a custodial arrest, such stops are analyzed as Terry stops.
  • An investigative detention, either as a part of, or apart from, a traffic stop, is a “seizure” for Fourth Amendment purposes.
  • A traffic stop and any concomitant investigative detention must be reasonable under the Federal and State Constitutions.
  • The Fourth Amendment protects against only unreasonable searches and seizures.
  • During a routine traffic stop, an officer may detain an individual to check for outstanding warrants, and officer may also request a driver’s license, liability insurance information, vehicle ownership information, the driver’s destination and the purpose of the trip.
  • While an officer is awaiting a computer warrant check, questioning about matters unrelated to the initial traffic stop does not violate the Fourth Amendment because such questioning does not extend the duration of an initial valid seizure; however, in some circumstances, extensive questioning about unrelated matters may exceed the scope of the initial stop.
  • Under Terry, a temporary investigative detention – a Fourth Amendment seizure – is reasonable, and therefore constitutional, if: (1) the officer’s action was justified at the detention’s inception; and (2) the detention was reasonably related in scope to the circumstances that justified the interference in the first place.
  • For the officer’s initial action to be justified at inception of the investigative detention, courts ask whether there existed specific, articulable facts that, taken together with rational inferences from those facts, reasonably warranted that intrusion; specifically, the officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity and some indication that the unusual activity is related to crime.
  • When determining if officer had reasonable suspicion of criminal activity so as to justify investigative detention, courts give due weight, not to the officer’s inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences that he is entitled to draw from the facts in light of his experience.
  • An investigative detention that is not based on reasonable suspicion is unreasonable and thus violates the Fourth Amendment.
  • A seizure that is reasonable at its inception may violate the Fourth Amendment by virtue of its excessive intensity and scope.
  • An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.
  • Once the reason for the traffic stop has been satisfied, the stop may not be used as a fishing expedition for unrelated criminal activity.
  • An investigative detention following a traffic stop may last as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of reasonable suspicion, supported by articulable facts within the officer’s professional judgment, that emerges during the stop.
  • On appeal, appellate courts review the reasonableness of the investigative detention from the same perspective as the officer: using an objective standard, appellate courts ask whether the facts available at the moment of detention would warrant a person of reasonable caution in the belief that the action taken was appropriate, and the determination of reasonable suspicion is made by considering the totality of the circumstances.
  • Once the traffic stop investigation is concluded, the officer must no longer detain the driver, who must be permitted to leave.
  • An officer may request consent to search a vehicle after the purpose of the traffic stop has been accomplished, as long as the request is reasonable under the circumstances and the officer has not conveyed a message that compliance with the officer’s request is required; however, if consent is refused, the officer must have reasonable suspicion to continue to detain the person stopped.
  • If, during a valid traffic stop and detention, the officer develops reasonable suspicion that the detainee is engaged in criminal activity, prolonged or continued detention is justified.
  • Additional facts and information discovered by an officer during a lawful detention may form the basis for a reasonable suspicion that another offense has been or is being committed, and articulable facts coming to the officer’s knowledge during the proper stop or detention may justify further investigation.
  • If the valid traffic stop evolves into an investigative detention of other criminal activity, such as transporting illegal drugs, so that a canine sniff can take place, reasonable suspicion is required to prolong the detention.
  • Once officer’s drug-sniffing dog alerted on defendant’s car following traffic stop, officer had probable cause to search the car without a warrant.

Again, to read the Court’s opinion, click here.