Fourth Circuit Denies Defendant Faced ‘Classic Penalty Situation’ During Polygraph Questioning While on Supervised Release
by Anthony W. Accurso
The U.S. Court of Appeals for the Fourth Circuit upheld the denial of a defendant’s suppression motion where he failed to invoke his Fifth Amendment protections while on post-release supervision and instead provided statements which led to a new charge.
Eugene Reid Linville was on supervised release for a child pornography conviction. He had conditions of supervision which included: (1) that he not possess adult or child pornography; (2) that he is subject to warrantless searches of his home upon reasonable suspicion of unlawful conduct; (3) that he truthfully answer questions from his probation officer; and (4) that he participate in a sex offender treatment program, which includes periodic polygraph testing.
After a year on supervision, Linville submitted to a polygraph exam, during which he admitted that he possessed Playboy magazines. During a subsequent interview with his probation officer, James Long, Linville was asked – without being informed of his Miranda rights – whether he possessed adult or child pornography. He admitted he possessed both and, during a trip to his home, surrendered “8 to 10 cardboard boxes containing numerous magazines, photos and video tapes, as well as notebook-type binders containing compact discs and digital video discs.” The North Carolina State Bureau of Investigation later discovered amongst these items “415 images and 1,352 videos depicting children engaged in sexual acts.”
In addition to revoking Linville’s supervision, the court processed a new indictment for possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(b).
Linville moved to suppress his statements made during the polygraph and to his probation officer – which would also have excluded the evidence obtained from his home – on the ground that the questioning placed him in “the classic penalty situation” because it forced him to choose “between refusing to answer the [probation] officer’s question and risk revocation of his supervision, or answering and risk criminal prosecution.”
The U.S. District Court for the Middle District of North Carolina denied Linville’s motion, including a finding that Long did not threaten Linville with a revocation for failing to answer questions. Linville entered a conditional guilty plea, was sentenced, and then proceeded on appeal.
The Fourth Circuit stated that the present case requires it to “consider whether a standard condition of supervised release that requires truthful answers to all questions from probation creates a penalty situation when a probation officer asks a defendant on supervised release questions that, if answered, might incriminate him or lead to incriminating evidence.”
The Court began its analysis by explaining what is known as a “classic penalty situation.” Ordinarily, a suspect seeking the protections of the Fifth Amendment privilege against self-incrimination must invoke his rights and then remain silent, not answer questions that could result in the discovery of incriminating evidence. However, in a “classic penalty situation,” the suspect’s Fifth Amendment rights are self-executing, i.e., they apply regardless of whether the suspect expressly invoked them. Minnesota v. Murphy, 465 U.S. 420 (1984). Such a situation exists when invoking one’s Fifth Amendment rights presents a “nearly certain” risk of criminal penalty. United States v. Lara, 850 F.3d 686 (4th Cir. 2017).
The Murphy Court ruled that the Fifth Amendment right, where no man “shall be compelled in any criminal case to be a witness against himself,” also “privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future proceedings.” It also ruled that, “[a] defendant does not lose this protection by reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time he makes incriminating statements, if those statements are compelled[,] they are inadmissible in a subsequent trial.”
The Court summarized Murphy’s two-step framework for courts faced with classic penalty situation arguments in the context of supervised release conditions as follows: “First, do the conditions actually require a choice between asserting the Fifth Amendment and revocation of supervised release? Second, even if they do not, is there a reasonable basis for a defendant to believe they do?”
Turning to the present case, the Court determined that Linville “had no reasonable basis for believing that he risked revocation of his supervised release if he invoked the Fifth Amendment.” The Court based its conclusion on two reasons.
First, Long never threatened Linville with revocation for failing to answer. See Lara (“There is no evidence that [the probation officer] told [the defendant] that his probation would be revoked if he did not admit to the uncharged [crimes]”).
Second, “the application note to the standard condition requiring those released under supervision to truthfully answer questions from their probation officers provides that despite ‘the condition … to answer truthfully the questions asked by the probation officer, a defendant’s legitimate invocation of the Fifth Amendment privilege against self-incrimination in response to a probation officer’s question shall not be considered a violation of this condition.’” Quoting U.S.S.G. § 5D1.3 cmt. n.
The Court observed that, since the Sentencing Commission promulgated this amendment in 2016, “no supervised releasee who chose or chooses to answer questions after that date could demonstrate that he reasonably believed or believes he was or is faced with the classic penalty situation.” McKathan v. United States, 969 F.3d 1213 (11th Cir 2020).
Consequently, Linville should have invoked his Fifth Amendment privilege every time he was asked a possibly incriminating question while on supervision, according to the Court. Furthermore, the Court concluded that the Government “did not expressly or implicitly assert that it would revoke Linville’s supervised release if he invoked his Fifth Amendment right to remain silent.”
Accordingly, the Court affirmed the denial of Linville’s suppression motion and judgment of the District Court. See: United States v. Linville, 60 F.4th 890 (4th Cir. 2023).
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