Defendants in all criminal cases have the guaranteed right under the Fifth Amendment to the Constitution to protect themselves against self-incrimination. Immediately following arrest, this is manifested in the right to remain silent. This choice cannot be later used at trial as a means of attempting to prove guilt.
In Shannon, the U.S. Court of Appeals for the Third Circuit vacated a felony drug conviction on grounds prosecutors violated defendant's Fifth Amendment rights by cross-examining him on the stand about his post-arrest silence.
Officials in Pennsylvania were two years into a series of investigations into rampant cocaine sales in an area outside of Pittsburgh, on the Ohio border. Working with wiretaps and a number of confidential informants, local and federal officials identified a distributor of the drug and, found out a large shipment was slated to arrive in the area in late August 2011.
Detectives convinced a judge to issue a “roving wiretap” on one distributor to allow them to gather more evidence about his Texas-based suppliers. (A regular wiretap authorizes officials to tap a certain phone, whereas a roving wiretap involves intercepting any and all communications received by that person.)
The distributor initiated a deal, collecting as much cash in advance as he could in order to bankroll a shipment. The Texas supplier indicated he would fly into Cleveland and the two would meet in between. Detectives followed them, recording each conversation. A cash-drug exchange was completed at a local truck stop. There, authorities observed a trucker, later identified as defendant Shannon, hand a large bag from the Texas supplier. The bag contained hundreds of thousands of dollars in cash.
The trucker testified he was only at the location as a favor to a friend, who asked him to give another friend a ride to Texas. That “other friend” turned out to be the Texas supplier, who reportedly asked if the trucker would hold his bag and wait for an hour while he took care of other business. Defendant agreed, but became suspicious when more than an hour passed. He opened the bag, saw money and tossed it into his truck. He began to make his way inside the truck stop to call his girlfriend to try to figure out what to do when he was arrested.
Authorities found $670,000 in his rig as well as $1,000 in the glove box. There were also three phones inside. The trucker was charged with conspiracy to distribute and possession with intent to distribute more than five kilograms of cocaine.
Defense lawyers argued the trucker was only trying to do a favor for a friend, and was caught in the wrong place at the wrong time. Prosecutors, however, insisted he'd been a drug courier for the Texas supplier for at least the last two years. They argued the $1,000 in his glove box was due to him “skimming” from the Texas supplier for gas money. The use of multiple phones, it was argued, was common among drug dealers.
On the stand, defendant countered the $1,000 was for in case of emergency, which the driver had always kept since breaking down, and the multiple phones were easily explained – one for job purposes, one for every day and one in his girlfriend's name for talking with certain family members on a family plan. He insisted discrepancies in his trucking log book were only because he took detours to visit a secret paramour on occasion.
In the course of cross-examination, prosecutors pressed him on why he had not come forward earlier. Defense counsel objected immediately, citing the Fifth Amendment. The judge overruled. The prosecutor pressed further about why he'd been silent with police officers immediately following his arrest. He was asked to explain. Defendant indicated he had revealed this all early on – to his lawyer.
Jurors initially deadlocked, but later convicted, sentencing him to 20 years in prison, followed by six years of parole.
Defendant appealed on several grounds, but the appellate court noted the main one with merit was the prosecutor's line of questioning regarding his post-arrest silence. This, the court held, was enough to set his conviction aside.
The protections of the Fifth Amendment, which include the right to remain silent, would be stripped if an arrested person's silence could later be used against him at trial, the court held, citing previous case law. For this reason, the conviction was overturned, and the case remanded for retrial.
U.S. v. Shannon , Sept. 8, 2014, U.S. Court of Appeals for Third Circuit
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