Criminal Practice – Constitutional – Self-Incrimination – Supervised Release – Child Pornography Possession

Defendant’s supervised release could not have been revoked if he invoked his Fifth Amendment right against self-incrimination, so defendant was not excused from invoking his right to remain silent by the “classic penalty situation” when his probation officer asked if he was in possession of child pornography.

We affirm the trial court’s denial of defendant’s motion to suppress.

After serving a sentence for possessing child pornography, defendant was placed on supervised release. The conditions of defendant’s supervised release required him to be truthful with his probation officer (PO). When defendant’s PO asked, defendant truthfully admitted to possessing child pornography, leading not only to the revocation of defendant’s supervised release, but also a new charge of possessing child pornography.

In response to the new charge, defendant unsuccessfully sought to suppress his answer to the PO’s question.

Normally, one seeking the Fifth Amendment’s protection against self-incrimination must invoke the right and remain silent rather than answering questions that might lead to incriminating evidence. But when a criminal defendant faces what the law calls a “classic penalty situation,” the Fifth Amendment’s rights are self-executing—meaning they apply whether or not expressly invoked. Minnesota v. Murphy, 465 U.S. 420 (1984). A classic penalty situation exists when invoking the Fifth Amendment presents a “nearly certain” risk of criminal penalty.

The “classic penalty situation” exception does not apply here.

First, defendant’s PO never threatened defendant with a loss of his liberty if he invoked his right to remain silent. While the conditions of defendant’s probation required truthfulness, they did not suggest that his probation would be revoked if he invoked his Fifth Amendment right. Moreover, clear federal law provides that invoking the Fifth Amendment could not constitutionally be grounds for revoking supervised release.

Affirmed.

United States v. Linville (Lawyers Weekly No. 001-030-23, 15 pp.) (Marvin Quattlebaum, J.) No. 21-4559. Appealed from USDC at Greensboro, N.C. (William Osteen, J.) Kathleen Ann Gleason and Louis Allen for appellant; Julie Carol Niemeier and Sandra Hairston for appellee. 4^th Cir.