Adams v. State

BRETT, Presiding Judge,

dissenting:

I am compelled to dissent for two reasons: first, the use of the appellant’s post-arrest silence as impeachment ammunition was a violation of his constitutional right to remain silent; and second, the appellant’s sister did not have the authority to consent to the search of the garage apartment.

During the presentation of the defense, the appellant was asked, on cross-examination, whether he had told the police officers that the contraband either didn’t belong to him or that it belonged to Donald Roberts after he had been advised of his right to remain silent. Later, on rebuttal, the State was permitted to ask Deputy Breshears whether the appellant had stated that he was innocent or that the marijuana belonged to someone else. This evidence falls squarely within the rule of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In that opinion, the Supreme Court held that silence, in the wake of the Miranda warnings “... may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to’ advise the person arrested.” 426 U.S. at 617, 96 S.Ct. at 2244, 49 L.Ed.2d at 97. The Supreme Court has clearly established a distinction between post-arrest and pre-arrest silence. In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Court held that the use of a pre-arrest silence to impeach the defendant’s credibility does not violate the Fifth Amendment. I believe that this is a violation of a fundamental right and that the appellant’s failure to object did not operate as a waiver.

Neither do I believe that, under the facts of this case, the search was properly conducted. See my dissent to Nelson v. State, 564 P.2d 254 (Okl.Cr.1977). Furthermore, in the State’s own case, there was evidence of a possible subterfuge. Witness Sears, whose gun was missing, testified that the presence of marijuana may have been mentioned in his first meeting with Officer Breshears, then he testified, “I believe he mentioned it.” The search warrant was issued for the witness’s pistol, and yet conversations leading up to the issuance of that warrant included discussion of the contraband not mentioned but actually seized.

I would reverse.