{"id":1794,"date":"2008-02-21T08:03:29","date_gmt":"2008-02-16T11:07:30","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-02-16T11:07:30","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1794","title":{"rendered":"“I plead the Fifth” an unequivocal invocation of right to remain silent; habeas writ granted"},"content":{"rendered":"

CA9 en banc: “I plead the Fifth” is an unequivocal invocation of the right to remain silent, and the habeas writ is granted. Anderson v. Terhune<\/a>, — F.3d —-, 2008 WL 399199 (9th Cir. February 15, 2008):<\/p>\n

It is likely that few Americans can profess fluency in the Bill of Rights, but the Fifth Amendment is surely an exception. From television shows like \u201cLaw & Order\u201d to movies such as \u201cGuys and Dolls,\u201d we are steeped in the culture that knows a person in custody has \u201cthe right to remain silent.\u201d Miranda is practically a household word. And surely, when a criminal defendant says, \u201cI plead the Fifth,\u201d it doesn’t take a trained linguist, a Ph.D, or a lawyer to know what he means. Indeed, as early as 1955, the Supreme Court recognized that \u201cin popular parlance and even in legal literature, the term \u2018Fifth Amendment\u2019 in the context of our time is commonly regarded as being synonymous with the privilege against self-incrimination.\u201d Quinn v. United States<\/em>, 349 U.S. 155, 163 (1955); accord In re Johnny V.<\/em>, 149 Cal.Rptr. 180, 184, 188 (Cal.Ct.App.1978) (holding that the statement \u201cI’ll take the fifth\u201d was an assertion of the Fifth Amendment privilege). More recently, the Court highlighted that \u201cMiranda<\/em> has become embedded in routine police practice to the point where the warnings have become part of our national culture.\u201d Dickerson v. United States<\/em>, 530 U.S. 428, 443 (2000).<\/p>\n

. . .<\/p>\n

Instead of scrupulously honoring the request, the interrogating officer decided to \u201cplay dumb,\u201d hoping to keep Anderson talking by inquiring, \u201cPlead the Fifth. What’s that?\u201d This effort to keep the conversation going was almost comical. At best, the officer was mocking and provoking Anderson. The officer knew what \u201cI plead the Fifth\u201d meant. It is thus baffling that the state court determined that “[b]y asking defendant what he meant by pleading the Fifth, the officers asked a legitimate clarifying question.\u201d The need for clarification presumes some ambiguity or uncertainty. Nothing needed clarification.<\/p>\n

This situation brings to mind the phrase attributed to a Canadian judge–\u201cwon’t take no for an answer\u201d–and later popularized in country music as \u201cWhat part of \u2018no\u2019 don’t you understand?\u201d What about the words \u201cI plead the Fifth\u201d is unclear, ambiguous, or confusing to a reasonable officer? Nothing. See Connecticut v. Barrett<\/em>, 479 U.S. 523, 529 (1987) (holding in the context of the invocation of the right to counsel that \u201c[i]nterpretation is only required where the defendant’s words, understood as ordinary people would understand them, are ambiguous\u201d). Rather, the officer hoped Anderson would explain more about the murder, the exact topic Anderson did not want to talk about. The officer thought that continuing the interrogation was \u201creasonably likely to elicit an incriminating response\u201d from Anderson. Rhode Island v. Innis<\/em>, 446 U.S. 291, 303 (1980). And he was right.<\/p>\n

In the right-to-counsel context, the Supreme Court has countenanced clarifying questions only to ascertain whether a suspect’s ambiguous or equivocal statement is actually an invocation of his Fifth Amendment right. See Davis<\/em>, 512 U.S. at 461; Miranda<\/em>, 384 U.S. at 445 (focusing only on the threshold question of whether the accused \u201cindicate[d] in any manner that he d[id] not wish to be interrogated\u201d when deciding whether police had honored the accused’s Fifth Amendment rights); cf. Smith v. Illinois<\/em>, 469 U.S. 91, 95 (1984) (holding that \u201c[t]his case concerns the threshold inquiry: whether Smith invoked his right to counsel in the first instance\u201d). Ignoring this principle, the state court found that the comments were ambiguous \u201cbecause they could have been interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to continue the questioning at all.\u201d<\/p>\n

The state court’s rationale collapses beneath its own weight, because the officer’s comment showed that the interrogating officers did not believe that Anderson’s statement was ambiguous. The officer did not ask Anderson what subject he did not want to discuss; nor did any of his follow-up questioning address this topic. Similarly, the officer did not ask him if he wished to remain silent or whether he simply did not want to talk about the drug issue. The officer did not even ask Anderson what he meant. No reasonable officer could legitimately be in doubt about the meaning of \u201cI plead the Fifth.\u201d The state court’s characterization is a fanciful re-imagining of the colloquy between Anderson and the officer, and under AEDPA, an unreasonable determination of the facts.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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