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Court: No means no even if it's just indicated by a head shake
By adamg on Fri, 01/13/2012 - 11:03am
The Supreme Judicial Court ruled today an alleged Red Line groper's admission to police can't be used against him because he gave it after shaking his head no after his arrest when asked if he wanted to talk to police.
Brandon Clarke was arrested by MBTA Transit Police in 2008 on charges he groped a man on an outbound Braintree train. After he "shook his head back and forth in a negative fashion," an MBTA detective kept asking him if he was sure and, eventually, he gave an incriminating statement.
The judge in his trial at Boston Municipal Court ruled the statement inadmissible, saying questioning should have stopped once Clarke shook his head no. The Suffolk County District Attorney's office appealed, arguing his right to stop talking would only come if he uttered the word "no" or some variant, under a 2010 US Supreme Court ruling that requires a negative answer to be given "unambiguously" and that a head shake was not good enough.
The state's highest court basically countered with: Nope. Clarke's head shaking was pretty unambiguous, and the Supreme Court ruling involved a man who had sat silent for three hours, rather than somebody who established from the outset he did not want to continue.
Moreover, given the nature of the right at issue--the right to remain silent-- it seems sensible to recognize that a suspect may well communicate through conduct other than speech.
The court added:
In response to the defendant's invocation of his right to cut off questioning, [a detective] immediately began describing what the defendant could expect would follow. Although the motion judge found, and we agree, that the detectives were "very patient with the defendant in explaining his rights," they did not immediately cease questioning in the face of the defendant's unambiguous invocation of his right not to speak with them, there was no pause in the interrogation, and the questioning that did ensue concerned the crimes for which the defendant had been arrested. Because the detectives did not scrupulously honor the defendant's right to remain silent and thereby elicited the incriminating response that is the subject of the defendant's motion to suppress, the motion judge was correct in concluding that the defendant's statements must be suppressed.
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Comments
Wasn't there a Supreme Court
Wasn't there a Supreme Court case a year or so ago (possibly the 2010 one mentioned in the article) where they decided that if a police officer is reading your Miranda Rights and you choose to remain silent, you have to actually say "I'm going to remain silent" or some variation thereof? You can't just NOT say anything, you have to first verbally tell them "I will be exercising my right to remain silent as soon as I finish this sentence".
Yep, read the article.
From the post:
"a 2010 US Supreme Court ruling that requires a negative answer to be given 'unambiguously'"
Which is exactly what you're talking about.
Yep, but this is Massachusetts
The justices said a couple of things about that:
First, that this guy was not "silent," both because he shook his head and because throughout the questioning he kept hesitating and saying he didn't understand what was going on.
So that's the Fifth Amendment.
But also, Article 12 of the Massachusetts Constitution gives people an even stronger right to silence:
Thomkins is the case from 2010 you were referring to.
Also, even under that Supreme
Also, even under that Supreme Court decision, you CAN still remain silent. You aren't obligated to speak or make any statement of any kind. The police will keep asking you questions, though, as opposed to if you affirm your right to remain silent, in which case they will stop.
I have issues with the way
I have issues with the way these ruling have played out. You do have an absolute right to remain silent, and you can literally do so - not respond. But if you refuse to affirmatively demand your right after you've been told you have it, then to you get the right to be free from any questioning? No means no, but what does a refusal to say no mean? When a person deliberately blurs the line, and then later chooses to speak, how do you know they didn't voluntarily change their minds? All this guy had to do was keep his mouth shut.
It should be noted that there
It should be noted that there was more to this exchange than contained in the decision. The detectives gave him the Miranda form and read him his rights. Before he signed it, though, he asked:
DEFENDANT : . . . [inaudible] . . . speak with you, or?
DETECTIVE AHLBORG: Nope, you don’t have to speak with me at all if you don’t want to. It’s completely up to you.
DEFENDANT : What happens if I don't speak with you?
DETECTIVE AHLBORG: Nothing.
DEFENDANT : I just want to go home.
DETECTIVE AHLBORG: You just want to go home? So you don't want to speak?
[Defendant shakes head]
DETECTIVE LYLES: But that nothing does not exclude you still being charged as us detaining you here. You'll either be bailed, or you'll have to go to court in the morning to answer to what you're being charged with. So it doesn't mean you'll get to walk up out of here and go home right now.
[At this point, he starts asking questions of the detectives.]
DETECTIVE LYLES: Well, we can't talk to you about anything until you make a decision.
DEFENDANT : Like yeah, I want to talk about it, but I'm just not sure what it is about.
DETECTIVE AHLBORG: Ok, so you want to talk to us?
DEFENDANT : Yeah.
DETECTIVE AHLBORG: You do. Ok . If you want to talk to us, sign the paper and indicate that you do want to talk to us.
[Which he did.]
Wow. That definitely paints a
Wow. That definitely paints a different sort of picture.