Combination locks, compelled disclosure, testimonial

[Aimee Farr]

To add to previous case clips/discussions on this topic.

5th Circuit: (see opinion for footnotes)
http://laws.lp.findlaw.com/5th/0051241cr0.htm
	"The Fifth Amendment right to counsel arises when, as here, an individual
is subject to custodial interrogation."(4)  The government does not dispute
that Green was in custody when he
identified the briefcase and safe and unlocked the combination locks on
each, after having been transported by ATF agents to his residence and led
around in the execution of the search
warrant.(5)  The government also does not dispute, although it does not
explicitly concede the point, that the ATF agents' actions in taking Green
to his residence and telling him to assist the agents in executing the
search warrant and show them any firearms in the residence was interrogation
likely to elicit an incriminating response.(6)  Green's actions in
disclosing that
there were firearms in the residence, showing the agents where the firearms
were located, and opening the briefcase and safe were all made in response
to queries from ATF agents after he
had invoked his right to counsel.  This was custodial interrogation.
...
On appeal, the government mentions its argument made before the district
court that, although Green's oral statements may have been elicited during
custodial interrogation in violation
of his Fifth Amendment right to counsel, Green's acts of opening the
combination locks were non-testimonial.  This argument is without merit.
Supreme Court precedent forecloses any argument
that Green's directing the agents to the two cases containing firearms and
opening the combination locks were not testimonial acts.

In Doe v. United States,(9) the majority implicitly held that this precise
behavior was testimonial communication so expressing the defendant's mind as
to constitute compelled self-incriminatory  statements.(10) There is no
serious question but that Green's actions in disclosing the locations and
opening the combination locks of the cases containing firearms were
testimonial and communicative in nature.(11)  These compelled acts disclosed
Green's knowledge of the presence of firearms in these cases and of the
means of opening these cases.(12)  The ATF agents elicited these testimonial
acts in violation of Green's Fifth Amendment right to counsel, and their
admission at trial was reversible error.
[...]

~Aimee