By:    Martin J. Mayer, General Counsel – California State Sheriffs’ Association

The California Supreme Court recently issued two significant decisions affecting a person’s right to remain silent pursuant to Miranda v. State of Arizona, (1966) 384 U.S. 436.  The issue in Miranda was whether “statements obtained from an individual who is subjected to custodial police interrogation” are admissible against him in a criminal trial and whether “procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself” are necessary?

As such, and as virtually everyone knows, once a person is a suspect in a criminal investigation, and in custody, law enforcement must advise that person of his or her constitutional rights pursuant to the Miranda decision. The U.S. Supreme Court held in Miranda that  “there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.”

Therefore, “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.  By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

However, in the case of People v. Tom, discussed below, the California Supreme Court ruled that even if there is no interrogation, and no statements are made by the suspect, he must invoke Miranda to prevent his silence from being used against him.

People v. Suff

On April 28, 2014, the California Supreme Court held, in People v. Suff, that continued questioning by law enforcement, of a suspect in custody, did not violate his constitutional rights if his invocation of Miranda was not clear and/or was not unconditional.


A jury convicted William Lester Suff of the first degree murders of twelve women.  Following the penalty phase of the trial, the jury returned verdicts of death with respect to each of the 12 murder convictions and an appeal to the Supreme Court was automatic.

Suff had been arrested on January 9, 1992 for violating his parole and signed a waiver after Detective Christine Keers advised him of his Miranda rights.  As the detective began questioning him about the murders, he asked “Do I need a lawyer?” She responded, “Well, I don’t know. Do you need a lawyer?” He said, “I don’t know. For what I’ve done, I don’t see why I need a lawyer.” Keers then said, “And all I’m doing is asking you to talk to me. Do you want to do that?” He said, “Okay.”

Thereafter, when the Detective asked him to consent to a search of his home, he responded  by stating, “I need to know, am I being charged with this, because if I’m being charged with this I think I need a lawyer.” Keers stated, “Well at this point, no you’re not being charged with this,” and defendant then consented to a search of his apartment.

Suff eventually revealed incriminating information that led to his conviction.  He argued that the evidence obtained during the interview should have been excluded in violation of his privilege against self-incrimination.  The trial court disagreed and the Court of Appeal upheld the trial court’s ruling.


The Court of Appeal stated that “In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously ‘ assert his right to silence or counsel. It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights.  Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda either to ask clarifying questions or to cease questioning altogether.”

“Defendant contends that his statement – “I need to know, am I being charged with this, because if I’m being charged with this I think I need a lawyer” – was an unambiguous invocation of his right to counsel. He asserts that “Keers simply could not have interpreted this as a conditional request because she knew that the condition was virtually certain to manifest itself.”  However, “Defendant acknowledges that in People v. Gonzalez (2005) 34 Cal.4th 1111, we held that a similar statement was not an unambiguous invocation of the right to counsel.”

“The focus of the test, however, is the clarity of the defendant’s request, not the particular officer’s belief, and there is no requirement that an officer ask clarifying questions. As we subsequently confirmed, ‘a defendant does not unambiguously invoke his right to counsel when he makes that request contingent on an event that has not occurred.’”  Additionally, states the court, “defendant did not state that he would speak to the detectives without the assistance of counsel only if he would not be charged with the crimes. As explained above, his statement concerning counsel was ambiguous and conditional, and did not constitute an invocation of his right to counsel.”

People v. Tom

In another, but very different type of Miranda case, the California Supreme Court again ruled, on August 14, 2014 in a 4 -3 decision, that the “invocation [of Miranda’s right to remain silent] must be clear and unambiguous. . . .”

However, in Tom, the issue did not involve questioning by the police but, rather, the Court explains, “(t)he issue before us arises from the People‘s reliance in their case-in-chief on defendant‘s failure to inquire about the occupants of the other vehicle as evidence that he was driving without due regard for their safety. Did it violate the Fifth Amendment privilege against self-incrimination to admit evidence that defendant, following his arrest but before receipt of Miranda warnings, expressed no concern about the well-being of the other people involved in the collision?”  (Emphasis added.)

The Court acknowledged that “(t)he issue is one of first impression for this court.  However, a plurality of the high court recently addressed the closely related issue of pre-arrest silence in Salinas v. Texas, (2013) 133 S.Ct. 2174, and we find that analysis instructive.”

The Court then stated that “we likewise apply the general rule here and conclude that defendant, after his arrest but before he had received hisMiranda warnings, needed to make a timely and unambiguous assertion of the privilege in order to benefit from it. Because the Court of Appeal held that the Fifth Amendment privilege against self-incrimination categorically prohibited any reference to defendant‘s post-arrest failure to inquire about the others involved in the collision without ever considering whether defendant had clearly invoked the privilege, we reverse the judgment of the Court of Appeal and remand for further proceedings.”


“Right after the collision, [Defendant’s friend] Gamino parked [his car] and went over to defendant‘s car to see if he was all right. Defendant said, ‘I didn‘t even see it.’ Once the paramedics arrived, Gamino returned to the Camry [Gamino’s car].  Defendant was behind the wheel of the Mercedes when police first arrived. Two paramedics, one in the front seat and one in the back, were attending to defendant. Officer Josh Price had a brief conversation with defendant but did not detect any odor of alcohol.”

“At some point, defendant and his girlfriend walked over and got into Gamino‘s Camry. About 15 minutes later, Officer Price walked over to the Camry to talk to Gamino. Defendant interrupted them to ask whether he could walk home, as he lived only half a block away. Price told him – ‘no, since the investigation obviously was ongoing and he was needed at the scene.’”

“In accordance with the police department‘s general policy to ask for a voluntary blood sample when a major injury collision has occurred (and to obtain a detailed statement from defendant), Sergeant Bailey asked defendant whether he would cooperate. Defendant said he would, although he seemed irritated that his blood could not be drawn at the scene. Defendant and his girlfriend were transported to the police station so that defendant‘s blood could be drawn.”

At the station, Sgt. “Bailey, who was in very close proximity to defendant, for the first time noticed the odor of alcohol on his breath and the bloodshot and glassy appearance of his eyes. Back in the interview room, Officer Price likewise noticed the odor of alcohol on defendant, who had been chewinggum at the crash scene and at the station. Officer Roman Gomez, too, smelled alcohol and noticed that defendant‘s eyes were bloodshot and glassy. Officer Price administered three field sobriety tests (the horizontal gaze nystagmus test, the Romberg test, and the finger-to-nose test), concluded that defendant had been under the influence of alcohol at the time of the collision, and arrested him. During his contact with Officer Price and Sergeant Bailey, defendant never asked them about the welfare of the other people involved in the collision.”

A jury acquitted defendant of the alcohol-related charges but convicted him of vehicular manslaughter with gross negligence and found that he personally inflicted great bodily injury on Kendall Ng. Tom was sentenced to seven years in prison.


At trial, the District Attorney commented on the fact that the defendant never asked about the condition of the people in the car he hit. The Court notes that “(t)he district attorney found it particularly offensive that defendant never, ever asked, hey, how are the people in the other car doing? Not once. . . .  Now, you step on somebody‘s toe or you bump into someone accidentally, what is your first thing out of your mouth? Whoops. I‘m sorry. I‘m not saying that he has to say sorry as an expression of his guilt or as some kind of confession, but simply as an expression of his regret.”  The DA continued to comment on Tom’s failure to inquire as to the condition of the other people.

“Defense counsel argued in response that there was a big point made that Richard Tom didn‘t ask about the condition of the people in the other vehicle. He didn‘t care. He wasn‘t telling the officers – asking the officers, what happened? What‘s going on? How are those other people?  And I ask you: What‘s that go to do with anything? Does that help prove to you any element of the offense? They kind of stuck it there under consciousness of guilt. Does that have anything to do with the way you‘re supposed to look at the evidence in this case? No. It‘s there to make you dislike Mr. Tom, make you think he‘s a bad person, therefore, get you closer to deciding he‘s the one who caused this accident.”

After conviction, the Court of Appeal reviewed the case.  “Although defendant did not object on Fifth Amendment grounds to the evidence that he failed to inquire about the occupants of the other vehicle (nor did he object to the prosecutor‘s argument on that basis), the Court of Appeal addressed the merits of the Fifth Amendment claim and reversed the judgment.”

The Court of Appeal found that Tom was under “de-facto arrest” at the police station and “the trial court therefore erred in admitting evidence in the prosecution‘s case-in-chief of defendant‘s post-arrest, pre-Miranda failure to inquire about the welfare of the occupants of the other vehicle; and that the error was prejudicial . . . .  As to whether defendant ever invoked his privilege against self-incrimination, the court said simply that the defendant who stands silent must be treated as having asserted it.”

The Supreme Court granted the People’s petition for review and stated that the issue to be decided was “whether the trial court violated the Fifth Amendment privilege against self-incrimination by admitting evidence that defendant, during the period following his arrest but prior to receipt ofMiranda warnings, failed to inquire about the welfare of the occupants of the other vehicle.”

The Supreme Court held that “(t)he Fifth Amendment‘s self-incrimination clause states that [n]o person . . . shall be compelled in any criminal case to be a witness against himself.  The clause does not, however, establish an unqualified right to remain silent.  By definition, a necessary element of compulsory self-incrimination is some kind of compulsion.”

“The high court has found governmental coercion where, for example, the prosecutor invites the jury to draw adverse inferences from a defendant‘s failure to take the witness stand. (Griffin v. California (1965) 380 U.S. 609) Although Griffin included a general statement that the Fifth Amendment forbids either comment by the prosecution on the accused‘s silence or instructions by the court that such silence is evidence of guilt, the court has since clarified that the broad dicta in Griffin . . . must be taken in the light of the facts of that case – a prosecutor‘s comment on a defendant‘s right not to testify at trial.”  (Emphasis in original)

“The prosecution may . . . use a defendant‘s pre-arrest silence in response to an officer‘s question as substantive evidence of guilt, provided the defendant has not expressly invoked the [Miranda] privilege.”  In reiterating that this issue is one of “first impression,” the California Supreme Court notes that the question of “(w)hether post-arrest, pre-Miranda silence in the absence of custodial interrogation may likewise be admitted as substantive evidence of guilt – and thus render a defendant‘s uncompelled silence admissible as substantive evidence of guilt or impeachment – has not yet been resolved by this court or the United States Supreme Court.”

Nonetheless, the California Supreme Court found that the “defendant had the burden to establish that he clearly invoked the privilege here,” and the Court then referred to numerous cases where the need to clearly articulate the right to remain silent had been upheld (as in the Suff case above).

“Accordingly, the threshold inquiry in assessing the scope of the privilege against self-incrimination in the post-arrest, pre-Miranda context is whether a reasonable police officer in the circumstances would understand that the defendant had invoked the privilege either at or prior to the silence at issue.”

The Court notes that “the general principle that the Government has the right to everyone‘s testimony . . .  unquestionably applies to testimony by silence.”  The Court found that the defendant engaged in conversations with the officers and, therefore, was not invoking his right to remain silent.  “The record here shows that defendant answered Officer Price‘s questions as to what happened when Price first arrived at the scene, that defendant asked the officers whether he could go home, that defendant complained to police about an ankle injury, and that defendant expressed reluctance about going to the police station to have his blood drawn but eventually agreed to go to the station. Following his de facto arrest, defendant continued to speak with the officers. In particular, he asked at the station whether he could refuse to have his blood drawn and he asked for permission to use the bathroom and for an aspirin.”

However, the Court also finds that “(t)he probative value of a defendant‘s silence depends peculiarly on a careful assessment of all of the relevant circumstances.”  Citing to other opinions, the Court states that “(i)n most circumstances silence is so ambiguous that it is of little probative force.”

“Whether and how these factors should weigh in these particular circumstances where the defendant spoke freely about the circumstances of the collision and his own needs but never inquired about the status of the others involved in the collision, despite the extensive damage to their vehicle is beyond the scope of our grant of review, but they remain available for the Court of Appeal to consider on remand if presented with a claim of error on those grounds.”


It appears to be fairly clear that, following a custodial arrest, a defendant must make an unequivocal invocation of his or her right to remain silent when being interrogated, in order to benefit from the protections of Miranda.  As in the Suff case, continued questioning by the police did not violate his Fifth Amendment right to remain silent since his request for an attorney was conditional and based on whether he would be charged with a crime.

However, in the Tom case, the facts were significantly different and had nothing to do with remaining silent while being interrogated.  Instead, the Court ruled that prior to Miranda warnings being administered, but following arrest, the fact that the defendant did not ask about the condition of the people in the car he hit was considered an admission of guilt and the prosecutor was allowed to refer to it in its case in chief.

In a dissenting opinion, Justice Liu stated, “whether interrogated or not, a suspect in custody has a right under the Fifth Amendment not to incriminate himself. And often the best way not to incriminate oneself is to say nothing. The court today holds, against commonsense expectations, that remaining silent after being placed under arrest is not enough to exercise one‘s right to remain silent.”

“No one disputes that if the police in this case had given Mirandawarnings to defendant Richard Tom immediately upon placing him in custody, the prosecutor could not have relied on his postarrest silence to show consciousness of guilt regardless of whether he clearly invoked the Fifth Amendment privilege. Why should the result be any different simply because the police did not give him the Miranda warnings until sometime later?”

In conclusion, Justice Liu stated that, “(i)nstead of today‘s counterintuitive holding, I would follow the simple and sensible rule adopted by the Seventh, Ninth, and D.C. Circuits: After being placed in custody, regardless of whether Miranda warnings have been given, the fact that the suspect remained silent may not be used as evidence of guilt in the prosecution‘s case-in-chief.”

This, as the Supreme Court stated, is a matter of “first impression,” meaning it hasn’t been ruled on prior to this case.  As such, it appears to be very fact specific and might not arise in most situations confronting law enforcement.  Since the Tom case has been remanded to the Court of Appeal, a final decision regarding the use of his “silence” has not yet be made. Therefore, the need to confer with legal counsel is, again, most important when deciding how to proceed.

 Martin J. Mayer is a name partner in the public sector law firm of Jones & Mayer and has served as General Counsel for the California State Sheriffs’ Association for more than 30 years.