Let's Get a General Condition of Probation Declared Unconstitutional
by: Kkreuscher • April 28, 2011 • no comments
tags: 137.540, cutting edge issues, Kreuscher, mpd trainer, oregon criminal defense, probation, Saechao, unconstitutional
Here's a pet issue of mine that I've been chewing on for a while. (I argued this once as unpreserved error in the Court of Appeals but the court was uninterested in an unpreserved argument.) There is a strong argument that one of Oregon's general conditions of probation is unconstitutional. At least, the Ninth Circuit thinks so.
ORS 137.540 provides that all probationers are subject a list of general probation conditions that automatically apply unless the court explicitly indicates that one does not. ORS 137.540(1)(k) provides that all probationers must
"(k) Promptly and truthfully answer all reasonable inquiries by the Department of Corrections or a county community corrections agency."
That condition is unconstitutional, and we should be objecting to its imposition. Here's why it is unconstitutional:
Both the Fifth Amendment and Article I, §12 protect citizens from compelled self-incrimination. In addition to the well-known Miranda jurisprudence, those protections prohibit the state from creating 'penalty situations' in which the state forces a person to choose between incriminating himself or suffering a penalty.
State and federal case law indicate that one impermissible 'penalty situation' is created by probation conditions that order probationers to "answer" questions or else face a penalty. The case law distinguishes conditions that require answers from probation conditions that require truthfulness, because a probationer can "truthfully" invoke their right to remain silent but the invocation of silence would not constitute an "answer."
In fact, a lead Judge Reinhardt (for those criminal defense attorneys/civil libertarians who are unfamiliar with the Hon. Reinhardt, he is your favorite uncle in the Ninth) opinion in the Ninth Circuit has expressly looked at the ORS 137.540(1)(k) condition and has held that it imposes an impermissible 'penalty situation.' That opinion is found at U.S. v. Saechao, 418 F3d 1073 (9th Cir 2005). (It should be noted that Saechao was litigated and won by local AFPD Lisa Hay.)
In Saechao, the defendant previously pleaded guilty to a felony involving domestic violence and was sentenced to probation. 418 F 3d at 1075. His conditions included the same ORS 137.540(1)(k) condition quoted above - i.e., a requirement to "promptly and truthfully answer all reasonable inquiries by the Department of Correction or County Community Correction Agencies." Id. In response to questioning from his probation officer, defendant Saechao admitted to possessing a hunting rifle. Id. at 1076. A month later, federal authorities arrested defendant Saechao and charged him with being a felon in possession of a firearm in violation of 18 USC § 922(g)(1). Id. The federal District Court of Oregon suppressed the defendant's admission, holding that the statements were "compelled" in violation of the Fifth Amendment. Id. The government appealed.
Relying on Minnesota v. Murphy, 465 US 420, 104 S Ct 1136 (1984), and the reasoning in State v. Gaither, 196 Or App 131, 100 P3d 768, rev den, 338 Or 488, 113 P3d 435 (2005), and distinguishing the reasoning in State v. Tenbusch, 131 Or App 634, 886 P2d 1077, rev den, 320 Or 587, 890 P2d 993, cert den, 516 US 991, 116 S Ct 523, 133 L Ed 2d 430 (1995), the Ninth Circuit affirmed the suppression order. Saechao, 418 F3d at 1078, 1079 n 6, 1081-1082.
The Ninth Circuit reasoned that unlike the probation condition of mere truthfulness in Murphy, the Saechao defendant's ORS 137.540(1)(k) condition required him actually to answer all reasonable inquiries. Saechao, 418 F3d at 1079. As such, the Saechao court reasoned that by requiring "answers to all such inquiries, the condition makes no exception for the invocation of the Fifth Amendment and, thus, by implication forecloses a probationer's ability to exercise that right by remaining silent." Id (emphasis in original). Thus, "[i]n light of the particular conditions applicable to Oregon probationers, there is certainly a reasonable basis under Murphy for a probationer to conclude that, although the invocation of the Fifth Amendment is not explicitly prohibited, an exercise of that right by invoking the privilege or simply by remaining silent would constitute grounds for revocation of probation." Id.
Furthermore, the Saechao court dismissed a "creative recasting of [an] argument" that a probationer could simply comply with his requirement to answer all reasonable inquires by "promptly answer[ing] the question by invoking the privilege, or promptly ask[ing] for clarification, or promptly seek[ing] legal advice on whether the privilege applies." Id. at 1080. The Ninth Circuit explained that such an argument ignores the fact that a condition requiring a probationer to promptly and truthfully "answer" all reasonable inquires requires an "answer":
"A verbal invocation of the right to remain silent followed by the act of not responding to incriminating questions is, by definition, not answering a question, let alone providing a prompt and truthful answer. A refusal to answer, even if it could somehow be called an answer, constitutes neither a truthful nor an untruthful response. It is non-substantive in nature. For that reason alone, invoking the privilege, asking for clarification, or seeking legal advice, could not satisfy the requirement for a prompt and truthful answer."
Id.
So, let's use Saechao to get ORS 137.540(1)(k) declared unconstitutional. (If you lose the issue at trial, I call dibs on the direct appeal.)
PLEASE NOTE: Saechao is a suppression case, but the Ninth Circuit has cited it with approval in a case directly challenging the imposition of probation conditions. See United States v. Rodriguez-Rodriguez, 441 F3d 767, 772 (9th Cir 2006) (distinguishing Saechao on other grounds, but noting that probationers may facially challenge the imposition of an overbroad probation condition and need not await a violation). There is no reason why Saechao's reasoning would not also apply in a direct challenge to the imposition of an ORS 137.540(1)(k) condition in a trial court in Oregon.
