SR Condition Requiring Truthful Answers to PO Questions Didn’t Implicate Fifth Amendment

US v. Linville: In 2013, Linville pleaded guilty to receiving child pornography. As part of his sentence he was sentenced to a term of supervised release that included a condition that he “truthfully answer questions from his probation officer.” During his supervision, Linville’s probation officer required him to take a polygraph examination, during which he admitted having a collection of adult magazines inherited from his father, but denied possessing or viewing pornography. The result “indicated possible deception,” leading Linville’s probation officer to ask him, without Miranda warnings, if he possessed adult and/or child pornography. Linville admitted to both. That led to the execution of a search warrant that uncovered more than 1300 child pornography videos.

In addition to having his supervised release revoked, Linville was newly charged with possessing child pornography. He moved to suppress his statements to his probation officer (and subsequently seized evidence) because the questioning violated his Fifth Amendment rights by presenting Linville with “the classic penalty situation” – either answer truthfully and incriminate himself or lie and violate his condition of supervised release. The district court denied the motion, Linville entered a conditional guilty plea, and was sentenced to 120 months in prison.

On appeal, the Fourth Circuit affirmed the denial of Linville’s motion to suppress. The court noted that generally a person must invoke his Fifth Amendment rights, but one exception is where the Government asserts that invoking the privilege would lead to punishment, such as the revocation of a term of supervised release. Here, however, there was no potential penalty looming. The condition at issue “does not actually require a choice between revocation and asserting the privilege” and “does not expressly state that if he exercised his Fifth Amendment right to remain silent, he risked criminal penalty.” Rather, all the condition required was that if Linville answered his probation officer, he do so truthfully. There was nothing keeping him from asserting his Fifth Amendment rights not to answer at all.