Attilio Agnellino v. State of New Jersey and Howard Yeager, Principal Keeper, New Jersey State Prison

Group Finally, raises the Hack under section defense

limited area claiming least with

1115(b)(5), that at to use areas, be able should in certain hinges However, defense this

the mark. Group upon requirement of the Hack being user.3 prior continuous a valid findings, upon trial court’s Based prior continu Group not a

the Hack Therefore, issue must ous user. Group. against the Hack decided

also

Affirmed. AGNELLINO, Appellant,

Attilio and Howard NEW JERSEY

STATE OF Jersey Keeper, Yeager, Principal New Prison, Appellees. State

No. 73-1134. Appeals,

United States Court

Third Circuit.

Argued Sept. Feb.

Decided hand, adopted other That Callmann is correct if the mark . he means . . was registrant knowledge through registrant’s without lose will prior continuously use nonuse if nonuse and has constitutes used This, course, party abandonment. is of such . no value . from a date registration Group Hack because it has neither the mark proven attempted prove Provided, however, nor that Casual That apply only defense Associates has the mark. or defect abandoned shall for the area in which such continuous use is applies proved 3. The if limited area defense the al- .... leged infringer 1115(b) (5). § can establish: 15U.S.O. alleged oper- and to be owned

lishment by appellant. As a result of the ated Lounge premises, search of the Paddock carpeting two and three rolls stolen among conditioners, air other stolen things, from a shed were seized behind Lounge. During the of the course appellant search, and was arrested1 Miranda, given warnings. police The appellant shortly questioned thereafter carpet and air conditioners. about appellant police A officer testified good buy” on the stated that he “had a carpeting paid “he had about $150,” conditioners. each of the air for reply There was also the air to whether conditioners were Barr, Anschelewitz, Ansell, I. Robert stolen,” appellant stated, “hot or “[f]or J., Park, Bonello, Asbury N. & Ansell Ap- price surprised.” I wouldn’t be appellant. for having pellant, however, flatly denied Pros., MacDuffie, Asst. A. Edward police appear this. It does not said Freehold, J., County, N. Monmouth up by asking appellant followed this Park, Asbury Coleman, Jr., M. James pur- where or from had whom he Kalma, J., J. Old N. and Frederick conditioners and did chased air he J., appellees. Bridge, N. for information. volunteer this Judge, SEITZ, HUNTER Chief Before discussing credibility de- In of the Judges. WEIS, Circuit prosecutor in his fendant, summa- tion said: Judge: III, HUNTER, Circuit JAMES Agnellino’s you “Now, take Mr. May in the Monmouth In of 1970 logic story. you And consider appellant County Jersey, Court of New right story. off the the night Start bat jury and convicted tried before come, raid, police receiving property counts stolen two forget King and I Lieutenant Ap- 2A:139-1. violation N.J.Stat. number, you may it, a number recall unsuccessfully appealed his con- pellant police on the scene. officers are Jersey through courts the New viction go They into shed. of the United Court Appellant then denied certiorari. States coming “[S]ay into this stuff was for a petitioned writ the district court your you air condi- shed and had three corpus pursuant to 28 U.S.C. of habeas rugs. And rolls of tioners six alleging improper com- seq., et looking § they are an indication there’s prosecutor in his ments the state Logically property. what for stolen probable cause summation and lack of being human do would a normal support The district warrant. search you I know what situation? appeal petition and this court denied the you I would do and know what followed. We affirm. minute, say find do. I’d wait a let’s got Gordon, magistrate 30, 1967, that’s where those Bill November On from, in- Jersey, find the City Long Branch, air conditioners let’s New (from Jersey terior decorator Camden” to a New State issued a warrant bought alleged appellant Paddock whom search the Police officer Restaurant, carpeting). Lounge a business estab- receiving search, for for an arrest warrant had obtained Prior stolen television sets. (1970). attorney objected in Harris on the 2d 1 then Appellant’s concluded that once a defendant ground defendant should no taking behalf, con- testifies his own the fifth penalized shelter espe- prosecutor silent, amendment remain does bar stitutional cially introducing impeachment given pur- from poses have where the warnings. evidence of statements in- testimony com- consistent defendant’s at to be “fair ruled the remarks court prosecutor permitted trial. the Harris refused allow the ment” per- provided Miranda” to “shield continue: perjury by into a verted to use “license assessing saying Mr. I in “So was way defense”, of a from the free truth- you Agnellino, I think have a testing device of cross-examination. Well, yourself. say what that Harris, supra, 226, at 91 S.Ct. at 646 being human do when would a normal police raid the are there? There’s a concurring judges rely Both on going property apparently on and the by viewing Harris this as involv- just doesn’t has been stolen ing prosecutorial comment on the de- ring true, man if have he didn’t this fendant’s inconsistent statements. knowledge guilty wouldn’t have some Judge appel- Chief Seitz characterizes you’re done that. And that’s what testimony conveying lant’s trial the 2 looking for in this case.” picture having appellant purchased goods in these a “course of business” transaction and concludes that “dif- argues Appellant that the state markedly impression” fers from the con- infringed trial court his fifth amend veyed by appellant’s police statements to rights by prose permitting ment the “both choice of and in the de- words during to comment cutor appellant’s summation Judge tails offered.” refers to the Weis failure the time of arrest ap- “variations between the tenor” of voluntaily police from inform the pellant’s statements at time of arrest whom from he had where obtained and his trial. I do not goods. the agree analysis. with this Supreme it is Court has held that police A officer that at testified impermissible prosecutor for a to intro- being given time of arrest and after duce as that evidence the fact warnings appellant stated that testify an accused failed to own good buy” had received he “a on the car- behalf or that he remained silent at peting paid and had about for each $150 Arizona, time arrest. Miranda v. See prosecutor air conditioner. The in sum- 1602, 86 L.Ed.2d S.Ct. suggested mation a “normal human be- (1966); California, Griffin ing” said, in that situation would have L.Ed.2d “wait a minute, Gordon, let’s find Bill (1965).3 Recently, however, the Su- got that’s where I “ air those conditioners preme emphasized that does [i]t from, let’s find the interior decorator not follow from Miranda that evidence appellant’s in testimony). (essentially Camden” inadmissible accused prosecution’s case in chief is barred purposes.” York, nothing sug- all Harris New There is in the record to gest 643, 645, appellant’s L.Ed. statements in- Appellant Transcript Proceedings concedes his brief of Trial et prosecutor seq. made these statements credibility appellant. context of the Brief Supreme In Court held that a Griffin Appellant Moreover, at 5. the record prosecutor cannot on the comment accused’s following comments, shows these jury nor can the instruct court prosecutor then con- went to discuss the guilt. such silence is cept guilty knowledge and inferences not take did the stand Griffin which drawn facts. his own behalf. from the not as questions asked at time arrest were responses statements complete complete To appellee never as those made at trial. he police4 ap- inconsistency as “dif- position on this characterize this disputed from not inquired in statements” of course ferences never peal erroneous, go my but in had obtained view does from where whom enough; prose- (information far “differences” derive not goods n appellant suggested have from what said at of ar- appellant time should cutor did, say. rest,5 Moreover, volunteered). view of but what he at- This failure to inform the Court has importance the goods precisely giving warn- source of what of Miranda tached prosecutor upon significant police in- in his focused sum- ings, it is mation; thus, “stop prosecutor attempted he could formed impeach answering appellant’s credibility by questions ... cease silence, by prior inconsistent any time.” statements.6 however, this, I do not be- More than Although may I believe such silence appellant’s were statements lieve that subject prose be the of comment you police that To tell the inconsistent. appellant cutor once paid each air conditioner $150 testify, permit chosen such com bought you jury tell the that then to ment under banner of “inconsistent oper- who a named individual them from statements” does seem consonant conditioning at a business an air ated pronouncement with the in Miranda that specified no inconsist- involves location privilege the fifth is not amendment equally true of utterances. This is ent “waived” if the individual answers some police appellant’s that to the statement gives questions information on or some carpet good buy on the he had a invoking own his his jury subsequent to the statement his interrogated.” remain silent when bought carpet in- from an that he To be These consistent with terior decorator in Camden. Harris, recognize might incon- I believe we must that considered statements exercising appellant validly appellant’s only fifth that his sense sistent problems. my presents In this view several are therefore with the We not concerned seriously First, question confronting I we can Circuit whether situation the Fourth testimony (4th appellant’s Moore, characterize trial as a v. 484 F.2d States United representation bought 1973). that he the air condi- Cir. in a tioners “course transaction. of business” Judge noting quite correct Chief Seitz is Second, accept even if we this char- were to police according testimony of a that to the testimony, I do acterization trial officer, appellant time of arrest stated necessarily believe that is inconsistent paid he had each air condition- $150 price, statement, with the I “[f]or (although police was not sure er officer surprised they wouldn’t be [if hot].” figure). appellant tes- of the exact At trial truly Third, even if the “hot” statement paid air condi- tified he had for each $175 appellant's testimony, inconsistent with trial agree incon- tioner. these are true prosecutor it; did on he not comment statements rationale sistent under only appellant commented did not on what prosecutor did not Harris. But since the say. Fourth, argument any event, this inconsistency, rele- comment on this it is not parallel has no relevance to issue of the decision. vant to our prosecutor’s appellant’s comments on silence Judge testimony respect carpet. Chief Seitz refers to with source of the officer stated 475-476, 7. 384 at 1628. It 86 S.Ct. light price paid, be sur- he would not grand is well settled that a before a witness prised if the air were “hot”. conditioners jury may certain circumstances decide (Appellant this.) denied ever said He he questions, Rogers to answer some suggests then this statement United 71 S.Ct. appellant’s inconsistent with trial (1951), who testi- L.Ed. representations he labels as trial amend- fies at the fifth not claim purchased air privilege against conditioners were in a “course ment cross-examination subject reasonably of business” transaction. matters related to the why gave explanation no privilege Burt when he refrained amendment alleged anyone of the accident volunteering in- never told sought why for the de- prosecutor he never aid suggested formation prosecutor then referred man- cedent. Viewed this in his summation. confronting in his ner, us to this summation. question state- “prior inconsistent per In a curiam decision in which two be ex- rationale Harris should ment” judges by separate opinion, concurred impeachment by permit com- tended to Court held that this rationale time ment Harris extended to the cross-examination Perceiving no difference be- arrest. concerning of Burt silence. two, in United Court held tween opinions in em While the Burt two Jersey, rel. v. New States ex Burt phasize different considerations in ar (3d 1973), that Harris ex- F.2d 234 Cir. riving result, opinions at this both cited impeachment by prior tends to inconsist- approval expressed by with view Burt silence. I believe that ent While applies Fifth Harris im Circuit that by appellant, in controls issue raised peachment by prior silence inconsistent opinion by contrary view of a at least testimony. States concurring judge, analysis one brief (5th Ramirez, Cir.), 441 F.2d cert. necessary. Burt seems den. 404 U.S. L.Ed.2d case, In that defendant Burt testified (1971).8 accidentally at trial that he had shot Notwithstanding this reference uncontradicted, It decedent. was how- Ramirez, language Judge is there in Mc- ever, anyone Burt told neither about Laughlin’s per opinion curiam shooting sought per- the nor aid for the might suggest holding the of Burt son he had shot. Later that same eve- only impeachment by is limited ning shooting, of the Burt was arrested inconsistent silence which does not occur breaking unlawfully entering and police in the accusation. This face of store. It was not until after this arrest apparently thought limitation was to be evening and later that same the required by language in Miranda police connected Burt with the shoot- prosecution may that “the not use ing. placed jail appar- He was trial the fact that someone stood mute ently at no time to trial did he tell privilege or claimed his in the face of police anyone allegedly or else ac- accusation.” shooting. cidental nature of the Burt concurring However, interrogated opinion, was never about the shoot- majority opinion which is and its not is discernible hence given any controlling,10 had he Miranda warn- noted that even after Burt ings. trial, When cross-examined at suspected of became the murder he never g., matter of his direct examination. family. See e. him and his The defendant further Walker, 591, 597-598, Brown v. 161 U.S. consequently testified that he desired to be 644, (1896) ; 40 L.Ed. 819 Brown v. longer compelled arrested so he would no States, 148, 622, 356 U.S. 78 S.Ct. to sell heroin. On cross-examination (1958). held, however, L.Ed.2d 589 prosecutor elicited from the defendant principles apply these testimony in- do police that he had never told the terrogation legisla- situation story prior because “[n]o to trial. From this judicial fact-finding authority tive prosecutor or argued is in- on summation possibility volved . . nor is there a lying. appeal On was the Fifth self-serving approved individual make impeachment, Circuit this form statements of which he could make use relying on Harris. refusing incriminating trial while to answer Burt, supra 236, F.2d, citing 9. of 475 Mi- statements.” n. U.S. 476 86 S.Ct. Arizona, randa v. 384 U.S. 468 n. (1966) (Court’s L.Ed.2d emphasis). In Ramirez the defendant testified selling that he had been coerced into heroin Judge concurring opin- ftosenn wrote the by strangers Judge joined. who had threateneed harm ion which Van Dusen (silence) police anyone al- tell the or to police of the failure to else told shooting. (conduct) seek aid both before leged of the nature accidental after police custody suspected of “whether a he was Thus, framed the issue upon police Indeed, comment silence defendant’s murder. face impeach appellant’s at a time when he suspicion silence at trial can used logically voluntarily taken the knew the victim dead13 was he has after him failure to had no relevance to which is offered stand appel- aid silence.” seek but was relevant contradictory earlier with his majority opin- import failure to himself lant’s exonerate of the The clear light Harris, silence, police face of accusation.14 ion is that suspicion, even in the face Burt I thus believe that on its facts purposes impeachment once be used for impeachment by involved stand taken the an accused as im- face of accusation as well aptly stated in his own behalf. As conduct-, peachment by hence Burt con- concurring opinion: present However, trols the situation. panel because this divided a sus- remains “Burt’s silence became after interpreted applicability Burt, pect may forth as an shall set also be fully my on this constitutional incriminate views is- exercise of his however, silence, sue. was himself. testimony at trial inconsistent with his In Raffel v. United shooting accidental. (1926), 70 L.Ed. 1054 inconsistency available Such should be Court held that a defend- prosecutor in his use testimony at ant’s a retrial could be im- process traditional cross-examination peached by cross-examination which dis- system. of the adversarial If incon- defendant, closed that the in the face of cannot be demonstrated to sistencies prosecution testimony, similar had chos- truth-seeking process jury, testify en not to at his first trial. “His straightjacketed. defendant, partial; having waiver once cast course, explain away free to seem- is immunity, aside the cloak of he ” 15 inconsistencies. The adversarial it at resume will . . . system requires jury, that the triers as States, In Grunewald v. United 353 fact, make the final determination L.Ed.2d 77 S.Ct. 1 931 testimony of which and conduct (1957), Supreme Court held that the 12 believe.” permitting trial court erred in the cross- Judge Seitz, suggests however, Chief concerning examination an individual his concurrence that this Court (in statement) his refusal the form of a Burt was not concerned with “defend- questions previously to answer asked exculpatory ant’s failure to offer an grand However, jury. per him statement with rebut accusation but ceiving problem question help.” act, his failure to to summon probative evidence, value of such agree cannot with this distinction Court noted that the determination of repeated view references in the prior “whether a statement is sufficient opinion majority in Burt ly go inconsistent to be allowed to (emphasis Burt, supra 11. F.2d of 475 237 warnings. any Miranda It would indeed be added). an anomalous decision which twists the ra- tionale of Miranda to hold that accused (emphasis added). Burt, supra at 238 given warnings who is and remains 13. Since had been confronted with silent, greater rights who, than one police suspicion he had committed though having informed, remains so murder, it does not seem unwarranted presumably silent ex- reliance to the same conclude that Burt his victim was dead knew rights tent fifth amend- on his under unavailing. and hence that aid would be ment. significant Burt, 14. Nor Ido consider it given appellant, unlike 271 U.S. at 46 S.Ct. not have been credibility question fur- jury he knew would tend to on the Grünewald against incriminating usually of the evidence the discretion trial nish him, within judge.” subsequent and his acquaintance with Grüne- un did not The Court Grünewald of criminal wald was free elements.” el.17 It did dermine the decision Raff el had not hold, however, that es recognized Raff Thus, impliedly the Court prior as a matter of law tablished subject that ambiguous of silence is evidence always be deemed incon silence must may dimin- inferences which of innocence. with later assertions sistent reliability, yet ish its where one’s analyzed peculiar sit The Court then prior clearly quite consistent petitioner in uation Grünewald innocence,20 thus void of with grand jury faced when confronted probative value, did the Court believe inquiry and concluded that his exercise evidentiary question to consti- arises grand privilege jury before Spencer tutional v. Tex- dimensions. Cf. entirely was consistent with later asser as, 648, L.Ed.2d of innocence and tions thus inadmissible (1967) (evidence convictions impeachment purposes because void notwithstanding preju- admissible some any probative value:18 effect); dicial Michelson v. United put questions “Had he answered the grand jury (1948) (impeachment

to him in the L.Ed. before of char- way subsequently he acter same answered witness use of defendant’s trial, convictions). them at this nevertheless would provided have with Government Moreover, appellant’s at time situation incriminating own of arrest confronting contrasted should be example, mouth. For had he stated to appellant in Grünewald: grand jury that he knew Grüne- many “For men know innocent who wald, the would have con- admission they are to be indicted will about

stituted link him and a between help refuse to create conspiracy, criminal and thus would under where themselves circumstances though entirely true even lack of counsel’s assistance and lack though innocent and even his friend- opportunity for cross-examination ship with was above re- Grünewald prevent bringing will them from out proach. was, therefore, There as we exculpatory circumstances inconsistency [pe- it, see no between superficially context of which incrimi- grand jury statement to the titioner’s] answering nating question acts occurred.” cy States, requires 16. Grunewald v. the law of evidence which United at their 77 S.Ct. at 983. exclusion.” at S. Ct. at 568. 17. The Grünewald Court stated: suggested The Court then that had defend- may “[W]e assume that under el [the Raff retrial, ant not testified at evidence that he subject defendant] was to cross-examination during remained silent the first trial would impeaching credibility just any like other probative be inadmissible because of no fact witness, plea that his Amendment Fifth (other guilt). in issue than issue of yrand jury carry could not over before any immunity voluntarily 421-422, when he 19. at 353 U.S. at form of took the stand at trial." 353 U.S. at noted, 20. As the Grünewald Court “[r]ecent (emphasis added). 77 S.Ct. at 982 history meaning re-examination of the approached emphasized 18. The Court el the issue Fifth Amendment has Raff in a similar fashion. It noted: anew that one of the basic functions of the “If, therefore, questions asked of de- privilege protect is to innocent men.” Gru logically relevant, fendant were and com- States, U.S., newald at 421 of 353 petent scope within the of the rules of (Court’s emphasis). at 982 of 77 S.Ct. cross-examination, they ques- proper tions, poli- unless there is some reason of 353 U.S. costly.’ precisely Appellant not denied assistance . . . For counsel; guar seek indeed he chose not same reason the constitutional replies appellant’s prosecution re Nor were antee us counsel. forbids the questions by scope impeach stricted of the tainted statement fully asked; explain he was free to who takes the accused stand: initially prosecution’s have answers use state of the tained incriminating. superficially appeared privilege by ment down ‘cuts Lastly, making costly.’ I think that do not its assertion Thus, statements at trial —if in fact made the accused denied an ‘unfet appellant at time of have arrest —could tred’ choice when decision whether erroneously construed to take the stand is burdened appellant. inculpating Thus, do illegally as risk that an obtained Grunewald-type we faced with a believe are statement be introduced im peach testimony denying ion.22 his direct situat complicity charged crime passage do I mere Nor believe that the against him.”25 of time rendered Grüne has Raffel inapplicable. wald I think that Harris suggested Justice Brennan the Mi and other decisions are consistent recent question randa Court had resolved this supportive with and and Grüne when it Raffel had stated in dictum im wald, Harris held that evidence inadmis peachment just evidence was as incrim prosecution’s sible under Miranda in the inatory direct evidence.26 chief is nonetheless admissible majority 1) impeachment purposes provided accept arguments. Harris did not these freely defendant chooses take I therefore can conclude Har- 2) stand, the “trustworthiness policies ris has held that the fifth [impeachment satisfies evidence] against prohibition compel- amendment legal standards.” ling person to be a “witness impaired by subjecting himself” are not Particularly revealing are the dissent ing arguments who has taken Brennan, Justice impeachment by probative stand Douglas evi- whom and Marshall Justices 24 dence otherwise joined: inadmissible as evidence guilt under Miranda and Griffin. by the that comment held “Griffin prosecution upon failure the accused’s apply All that remains then is to these court instruc take the stand principles First, facts hand. tion that such is evidence question appellant it is without vol- impermissible it ‘fet testify; because untarily chose to ters’ that cuts down alleged argued ‘[i]t never nor choice — he was making privilege by its assertion compelled way to take the stand. 22. The Grünewald court reversed 420-421, wald v. United 353 U.S. at court for abuse on the 963; of discretion basis n. 420 States, Raffel v. United supervisory powers its the administra over S.Ct. 566. justice tion criminal federal of courts. separately Justice Black dissented without 24. present by,a ruling Since the involves opinion. court, presented if state even we Grunewald-type situation, 230, (citations 25. 401 it would not be at U.S. 91 S.Ct. at 648 immediately question omitted). clear appropriate raised is resolve. this court impeachment 26. Miranda stated that evidence Spencer Texas, 554, v. 385 U.S. Cf . used [defend- is “to demonstrate untruths 648,17 (1967). 87 S.Ct. L.Ed.2d 606 prove by ant’s statement] and thus to implication. 224, 23. 401 91 at 645. Both U.S. S.Ct. These are incrimi- statements nating impliedly recognized any meaningful Grünewald sense of the word Raffel allowing impeach- 477, this . distinction between ..” 384 U.S. at 86 S.Ct. by prior forbidding ment prior silence use 1629. while guilt. evidence as Grune- 722 silent per that a man remains nificant impeachment evidence Second, the and re- confronted with serious Harris when case satisfies in this

mitted sponsible himself evidence when requirement of trustworthiness power to contra- given it within sens is most is its requirement jurors The notion to allow chooses one interpretation. Whether dict. to do ible that which sensible requirement in terms to trustworthiness, view every day do violates minded men reliabil inconsistency, justice’ principles Raffel, as ‘immutable Grüne ity probative value, society consistently a civilized is con conceived wald Harris have proc- importance question. of ‘due evidentiary trivialize it an sidered ” 27 im precedent the ess.’ under this think constitu peachment evidence becomes process these As a matter of obser- due it is so when tionally inadmissible regard weight, re- vations with permit lacking that to probative value probative liability, or value of silence process. I do violate due its use would have discredited evidence not been as subsequent present such situation not consider decisions States, v. United a case. See Grunewald not hold Even did Court. Griffin 391, 963, 1 L.Ed.2d 77 S.Ct. 353 U.S. lacking in evidence of silence was so States, (1957); Raffel 931 v. probative its value that admission into 494, 566, 1054 46 L.Ed. S.Ct. 70 271 U.S. proc- violated due have (1926); California, v. 380 U.S. Griffin merely regardless ess.28 It held that 617-623, 1229, 14 L.Ed.2d 85 S.Ct. 609, probative value, may not be used its dissenting); (1965) J., (Stewart, 106 guilt. as evidence of 46, California, 67 332 U.S. Adamson v. summary then, In once it deter- (1947); 91 L.Ed. 1903 1672, S.Ct. mined the defendant has tak- Twining Jersey, 78, 29 New 211 U.S. v. permits impeach- stand, en the Harris 14, (1908); Lo L.Ed. 53 97 S.Ct. cf. probative ment evidence since it per 473, 485-494, Beto, 92 405 v. jury in “valuable aid to the assess- lends (1972) (Bur 1014, L.Ed.2d 374 S.Ct. credibility.” [a defendant’s] dissenting); Spencer ger, Tex J., C. scope impeachment not confined to 554, as, 648, L.Ed.2d 385 U.S. 87 S.Ct. collateral matters30 but all embraces (1967); Michelson United reasonably matters ject related to the sub- 213, 469, 69 S.Ct. 93 L.Ed. testimony. Thus, of his direct Har- (1948). Admittedly, evidence of ris has affirmed rule in Raffel probative statements more partially a defendant cannot waive his pri- inconsistency show than evidence rights under the fifth amendment. As or silence. This mean that does not Burger recently said, Chief Justice always pro any silence is without “the defendant Fifth Amend- waives supra. As Gruenwald, bative value. privilege ment and all rele- as Justice Frankfurter his concur noted in vant matters when he decides take ring opinion in Adamson: the stand.” just-minded men, “Sensible Appellant argues that the nonetheless sig- important life, affairs deem it adoption of such a rule “fetter” California, 27. Adamson v. 332 U.S. Tennessee, Brooks v. 1672, 1680, (1947). 91 L.Ed. 1903 1891, 1897, (1972) 92 S.Ct. 32 L.Ed.2d 358 (Burger, J., dissenting). C. (Stew- Chief Justice See 380 U.S. Burger art, J., dissenting). purposes referred rule to this analogy only, . petitioner Brooks 29. 401 U.S. at never took the stand his own behalf. (Bren 227, Consequently, See 401 at 91 S.Ct. 643 the referred statement to nan, dissenting) J., ; majori- v. Walder the text was not contradicted the 62, ty Indeed, 74 L.Ed. 347 U.S. 98 in Brooks. the Chief Justice not- (1954). Supr'eme ques- ed that Court has never a tioned such rule. given a at the decision defendant must make warnings his Miranda none- but it time of arrest to an extent such that counsel, theless chose not to his seek pen- complaint an respect constitute unconstitutional in this is without mer- alty. Specifically suggests a Appellant’s that it.34 other concern cannot legal counsel” and quickly defendant “without suggests be as dismissed. He “pressure-packed atmosphere of policies effect that behind fifth an to arrest” is forced decide “whether impaired amendment are when a defend- testify not he will to own want his ant time of arrest must consider vaguely possibility behalf at some defined trial that might testify that he at trial (with looms in the distant future.” consequence that he explain have to jury si- considering In a such one contention, lence). no to better benchmark from which proceed of Justice Harlan: whichever uations to ficult of the pelling preciable defendant stitution threshold L.Ed.2d hind the forbid constitutional “The criminal follow. ^[759] than the judgments’ legal system, requiring requiring ‘the does 763] extent rights course he question McMann election dimensions, have a (1970). Although following process, involved.” him to as to which course [90 S.Ct. impairs that token chooses, replete Richardson, making right, whether com choose. like the rest observation policies to follow subject the Con even of dif always an sit ap be a ter persons resolving an unconstitutional Griffin that not all “burdens” or “fetters” on a defendant’s ably McGautha v. a constitution the exercise of Ohio to have a There the guide Supreme the most extensive judgment and Miranda have made it clear of unconstitutional to decision. Since Griffin may this issue is punishment Court decisions choice did differ, we are not without California, 28 L.Ed.2d 711 bifurcated arise to the privilege appears penalty. which require inevitably would be deter- analysis subsequent held penalties on fair-minded the State Although level on this (1971). a mat- where prob- of to separately. mined The Court concluded Although I has answered believe Harris policies privilege against that “the question” “threshold in favor compelled self-incrimination are of- subjecting defendant who has capital fended when in a any impeachment taken the stand to evi- yields pressure testify probative value, none- dence I will punishment the issue of risk of arguendo theless assume damaging guilt.” Writing his case on question threshold must be considered majority opinion, Justice Harlan anew this situation. made these observations: Initially, quite it is clear re- “It quirements' contended, is not nor could of Miranda were laid down successfully, precisely “pres- the mere to counterbalance the force sure-packed compulsion atmosphere” ap- evidence is the sort privilege. pellant forbidden refers.33 Since California, Yeager, 32. McGautha v. ted. United rel. 402 U.S. at States ex Macon (3d 1973). 476 F.2d are Since we S.Ct. at Cir. prosecutorial not faced with the situation of Arizona, Miranda v. See 384 U.S. at comments defendant’s seq., et 86 S.Ct. 1602. counsel, obtaining leave I would therefore recently open de- possibility 34. This held that a Court has such comment on rights are fendant’s sixth amendment uncon- penalty be an silence would unconstitutional stitutionally penalized prosecutor when important amendment because sixth during jury comments summation rights involved. attorney the defendant had consulted day 91 S.Ct. at 1472. alleged 35. 402 U.S. commit- after crime was inadmissible It aging to his case. weigh fendant behalf against cross-examination which reasonably a ter of mination It examination. the stand enlightened administration of crim- whether tions or ognized situations is inal behalf impeached ilege person’s choice to X- “It n “Further, a defendant whose motion does is justice take his direct may such cannot then no violence to thought who ^[*] to the like. thought whether in his own behalf to long related open to testify. into account pros be takes a require that require ^[*] It is proof brought inconsistent examination. defendant the door and cons overly the stand to to waive the claim the . also testify -X- the defendant held . which is harsh in such generally rec- out privilege that subject mat- to otherwise U.S. the matters . ^[*] on matters in his own who takes the deter- Again, on cross- with the privilege deciding his may be . convic- ^[*] a dam- priv- own . de- to . who sible for Brooks had been Court decided tify liance on the least two ute for pellant closure defense is versary Brooks, consequence of imposed Crucial to see ditional severe than that (1972), main cause Subsequent to McGautha Brooks is statute right heavy penalty imposed before desires silent; was remaining wherein however, truth-testing Tennessee to process.”38 defendant reasons. imposed on in Brooks. Instead of merely subjected testify inapposite heard. The to take the lesser testifying fact that a difficult choice Brooks v. majority’s other imposed by it penalty did silent— to at “penalty” was First, took force devices not testimony for a future to our later. was much less Second, unlike held Tennessee, 406 complete fore- arose stand, decision to re- place decision was the majority in a by L.Ed.2d 358 defendant.37 the Tennes- to stand. case for at defendant, impermis- “penalty” time, ap- Supreme only sole re- to losing “tra- stat- tes- ad- be- a confront- choices “burdens” acquittal the close the Gov- ing appellant were much more similar case denied must decide ernment’s to those involved el wherein the put stand on his motion to Raff rejected argument defense, on a doing the risk that in so permitted that a defendant should to he will the Government bolster testify requirement enough free of that he support ver- for it to explain his silence only his first trial: guilty. Finally, dict of . . . Florida, last Term in Williams suggested “The qualifictaion for such a basis 26 L.Ed.2d [90 U.S. adoption (1970), had occasion con- we to 446] the rule contended for the Govern- sider Florida rule might ‘notice-of-alibi’ operate bring pressure ment put petitioner which that case on the accused to the stand take abandoning the choice of either trial, the quences first fear conse- giving alibi defense or both State his silence the event of opportunity prepare a rebuttal trial; might second influence and leads from start. We continue his silence rejected the contention that the un- rule on the second trial because his first constitutionally compelled the defend- may there silence against made to count ant to incriminate himself.” him. 213, 215-216, 36. 402 91 S.Ct. at 1470 613-617, mentions. 406 U.S. at (citations omitted) (emphasis added). (Burger, J., joined dissenting, O. Rehnquist, Blackmun & JJ. Recognizing making choice take the stand in some cases York, be easier 38. Harris v. New later, unwilling if made the dissent was S.Ct. at 645. view this as a matter of constitutional di- imposed by adoption den” plete without of a refinements are com- “But these rejected need close our waiver rule and not con- real substance. We every eyes person tention that it amounts to ac- an unconstitu- to the fact that pressure penalty tional under crime is under some cused of Griffin: jury, despite testify, care- to lest the “Compulsion on would have existed instructions, fully an un- framed draw ly might if defendant realized that he from his silence. inference favorable explain be to asked trial his silence trial, if, on Even his first testimony prove should in his weigh consequences of he were to consistent with silence while incar light testify then, in the his to failure ceration. The coercive effect of such trial, of occur a second what although realization, real, perhaps a require to it would balances delicate I do not find it minimal. substan par- say to that the rule of enable him enough tial to raise the defendant’s immunity make his burden tial right against self-incrimination over may he less than the rule that onerous society’s using interest silent, or, testify option, remain his process methods of to adversarial fully, explaining previous his silence. protected discover truth. Griffin We rule are unable to see that the Burt from adverse comment if re he testifies, testify fully, if he he must to fused the stand. take Once any adds in substantial manner however, testify, elected to his inescapable embarrassment which the society uncoerced and experience accused must in determin- paramount ascertaining had a stake in testify whether he shall or not. situation, the truth. In such a against safeguards inapplicable.” “The self-in- limitations of are Griffin crimination are for the benefit of 4 do those who not to become wit- wish fully I concur. behalf, nesses in their own and not for foregoing for of Thus, each rea- policy those who do. There is a sound constitutionality uphold sons I would requiring the accused who'-offers prosecutor’s of in this remarks himself as a witness do so without case.41 reservation, as does other wit- II ness.” Finally, Appellant I note also contends that this Court has al- ready perceptively constitutionally in- analyzed search warrant was the “bur- may 498-499, 39. 271 time never lence at of arrest be used S.Ct. at 568. guilt im- of used be for Burt, supra, at 239 of 475 F.2d. peachment only subsequently de- when he might argue Thus, permitting 41. One cides to take the stand. the custom- im- peachment warning by ary you right silence, ought to re- have the also change customary anything you say warnings. main silent and be Miranda can involving against you In a situation does not misstate the law. use of silence as used evi- guilt, complete dence re- A more of the this Court referred a statement law contingent flecting the nature statement and collateral Sixth Circuit warning consequences remaining un- would have silent modified as fol- you say doubtedly anything, lows : “If could be formulated. a that will Such against you you; simplicity say any- warning, however, used if do defies thing, engender against you.” likely ambiguity that will be more than used clari- Unit- ty suspect. possibility Brierly, ed ex a States rel. mind Smith 384 F.2d (3d (held suspect’s police might 1967) Cir. a statement that use of si- resignation lence as evidence denial arise from an or misun- was a act derstanding confusing process, dkie caused view of the facts unusual my consequence quoting warning greater case), McCarthy is of suspect (6th 1928). possibility 25 F.2d view than the Cir. might erroneously equate “right warning Not do I re- believe such a is er- roneous, to have si- main” silent with but also believe a modification against purposes warning unnecessary him im- used would be lence peachment. as well as A undesirable. defendant’s si- penal who tions the informant officer state valid.42 The only di- the search war declarations applied interest. received rectly implicated appellant but be- Pad we 1967 for the rant November prudent ob- Lounge lieve disinterested Restaurant submitted dock have credited state- magistrate affidavit, forth would these set server v. fol reliable. States margin,43 the as United ments in which contained the 29 Harris, 573, 1) 2075, the lowing pertinent S.Ct. between facts: (1971). November, 1967, cer L.Ed.2d 723 of 18th and 20th a from stolen sets were tain television remaining us issue The central before freight 2) car; Pennsylvania Railroad probable cause then is whether there was receiving person stolen for a arrested support of search to the issuance the sto property (one sets of television the pre- trial court in a warrant. The state freight car) the had told len from hearing suppression there was held the televi had obtained affiant that reasoning probable cause, as follows: appellant in another and sion from two be- “There were links established Long gas station in a named dividual at premises and the tween the defendant (which Branch, Jersey few was a New of the informer’s admission searched: es away from where the business blocks receipt of the television from set located); appellant of was tablishment proximity of the defendant and the operated 3) appellant owned and [gas es- station] the [business Lounge; 4) affiant Paddock and It follows that defend- tablishment]. good and reason believe therefore had property ant would have stolen concealing appellant did believe was that size and in rea- bulk television sets property Paddock the stolen sonably proximity point close a Lounge. goods. De- distribution of the stolen ownership building] of fendant’s a to the information obtained [of As urges large objects appellant informant, us sufficient size hide from strengthen suspicion would unreliable under tend rule that that Aguilar-Spinelli infor similar sets be found standard.45 premises. suspect mation, however, no of declara- There is consisted magistrate ‘Nunzio’, who issued stolen Silvertone color television 42. The state sets, Station, Lounge is- lo- for the Morris Ave. Esso search the Paddock warrant agree Long Aves., cated sued a search warrant. We at Morris and Chelsea second Branch, since no incrimi- N. with the court that J. district nating during was the search “C. The stolen television sets des- seized validity ignated shipment premises, that for Sears second various Jersey us. search Roebuck New and New not before Stores warrant as York. are The television sets described support search 43. The affidavit being All Televi- Silvertone Channel Color inter alia: warrant stated Sets, 8181, sion Model number console tending establishing the “3. The facts for models, each, stolen retail value $581.95 probable grounds application and this during breaking entering larce- and deponents [police belief officer] cause of the ny Pennsylvania freight of a car SSW grounds that exist are as follows: such 40, Pennsylvania 47143 at Station Sub by Detec- “A. received Information was J., Newark, PM N. between 9 :00 sometime Jersey King tive the New State Walter Novem- November 1967 and 10:00 AM buildings Police, known ber 1967.” Lounge Restaurant, 46 Chel- Paddock Long Branch, J., Ave., N. are owned sea as to exact 44. The is not record clear Agnellino, 48 Larchwood Attilio distance, appellant in his brief asserts but Branch, J., Ave., Long N. West gas least blocks station five was Lounge operated Restaurant are away business establish- same. ment. “B. received from Information was Texas, Aguilar Receiving person arrested Stolen ; Spinelli (1964) 12 L.Ed.2d Property (one col- Silvertone of the stolen sets) he did receive television (1969). Agnellino person L.Ed.2d 637 called and a from Atillio ing issuing judge requirement a “man of affidavit, certainty to moral reasonable caution” be- must satisfied be warranted lieving appellant at a found conceal- that contraband can be was specific stolen television sets the Paddock location.” Lounge. agreement in substantial we are While analysis, we rec- the state court’s Since the television informant set the brings sharp ognize ease into received from was one sev- admittedly diffi- narrow focus the eral which had been stolen from the this court must draw line which cult freight car, think man we of reason- probable determining ex- cause appel- able caution would believe ists. possession lant other stolen Burger in by As noted Chief Justice sets. And in view of the fact that one supra, “is- Harris, United States v. previously of stolen sets had proceedings in is sue warrant transferred place a the informant at probable cause for be- is] there proximity48 [whether within close to a business lieving of crime and a occurrence op- establishment which was owned and specific secreting in by appellant erated of and of was suf- probable premises.”47 cause While conveniently ficient size and character to clearly concept, is some- an elusive conceal the televisions, we are unable “certainty” thing “evidence say less than a man of reasonable caution doubt,” yet beyond a reasonable would not believe that the televisions “suspicion.” Stated more than mere premises. would be found on the See probable ex- think cause we differently, Scolnick, United States v. 392 F.2d 320 if the “facts and circumstances (3d isted Cir.), 931, cert. 392 den. U.S. 88 knowledge, within and [the affiant’s] 2283, S.Ct. (1968); 20. L.Ed.2d 1389 trustworthy reasonably which has [he] Myers, United States ex rel. Stoner v. in them- information sufficient [are] (3d 1964); 329 F.2d 280 Cir. v. Weller man selves to warrant a of reasonable Russell, (3d 1963); 321 F.2d 848 Cir. appellant pos- caution believe” Brinegar States, cf. v. United 338 U.S. they stolen television sets and that sessed 160, 69 1302, (1949). S.Ct. 93 L.Ed. 1879 Lounge. were concealed Paddock finding probable In cause, we are 132, States, U.S. Carroll 267 mindful that re 162, 280, 288, 45 69 L.Ed.2d 543 S.Ct. peatedly prob concluded that decisions of (1925). by able cause made a neutral de and stress, however, magistrate greater We that we are tached are entitled to weight not a informant probable confronted with faceless than decisions cause stating police or with officer conclu made hurried officers who have setting probable sought sions prior judicial approval. cause without not Unit underlying forth facts and circum ed Ventresca, 102, 106, States v. stances which those conclusions 741, 85 S.Ct. (1965); 13 L.Ed.2d 684 not drawn. We are thus faced with 257, Jones v. United Aguilar-Spinelli problem. ques 270-271, 725, 4 L.Ed.2d confronting accepting (1959); tion us is whether Lefkowitz, United States v. appear- underlying 452, facts 465, 420, reliable 76 L.Ed. 877 Opinion County Court, Although of Monmouth June the distance between the Pad- Lounge gas The court a sec- also referred to dock and the station does not proximi- appear ond establishment affidavit, business close addresses ty gas station a second both were stated the affidavit and it validity of magistrate search warrant was issued. The reasonable to assume local enough this second warrant is not before this court. would be familiar with the area to 42, supra. recognize proximity. See note the close (empha- 47. 403 U.S. at added). sis prosecutor’s re- encourages make the not to held (1932). rule not Such “in Burt’s silence judicial comment on marks advance to seek officers recognizes not im- was of accusation” —Burt face plicated approval also but searches shooting time of at the commands amendment’s the fourth rather “non-action” abstract,” requir and his silence, “practical are subject “non-speech” than interpretation of af testing ex rel. Burt United States magistrates courts alike comment. fidavits (3d Jersey, F.2d 236-237 fashi New realistic “commonsense 1973). supra Cir. Ventresca, on.”49

U.S., 85 S.Ct. 741. view of Judge Under Hunter’s of Oc- court the district The order of Agnellino's case, silence facts affirmed. tober will markedly different from Burt’s. would be Judge Agnellino’s under Hunt- Judge (concurring). SEITZ, Chief conception “non-ac- er’s inconsistent tion”, that was id. Judge II of in Part I concur testimony and that occurred with trial reach opinion and in the result Hunter’s at a time when the defendant did disagree, how ed him Part I. with which stand accused the crime analysis ever, in Part I. Were Agnellino’s Instead, arewe concerned. prosecutorial re we faced here with product con- of a silence would toe the the jury from quest infer that the divulge information choice not to scious ar the time of his defendant’s silence the with which we relevant crime to given, warnings rest, were Miranda after Agnellino very are concerned at the time Judge agree Hunter with I could commis- was arrested and accused with proper, if even comment was that such only sion of that I do not believe that crime. purposes. impeachment for prosecutorial comment on such silence by heavily relied case, The Burt proper. would be Judge Hunter silence was involved although, essentially conduct, found to be The Fifth Amend- and Fourteenth conduct, value its with evidence of being as protect ments the individual from implicit lay in its testimo- as evidence against compelled him- witness bear in Burt was content. The defendant nial by prohibitions: self of related series charged testified at He speaks murder. if the defendant the of as result shooting the the from which coercion, speech actual his excluded charge This had accidental. arose been purposes; from evidence for all if he prosecutor’s proper com- the Court found speak, prosecution chooses not testimony in- was ment that Burt’s trial urge jury cannot from that to draw any- notify failure to consistent with his guilt; speaks an inference of if he with- victim. The one or to aid for the seek knowledge out coercion but without of among people Burt failed fact that speech rights, from his is excluded arresting notify police officer, awas direct, use not impeachment, as but evi- charge, another, was Burt on unrelated protec- The last of these three dence. validity pected See, g., of the search warrant Given contraband. e. Marron v. proba- sets, States, there was television United 48 S.Ct. carpet (1927) ; States, air ble cause to seize the condi- L.Ed. 231 Harris v. United appeal (10th 1945), aff’d, 151 F.2d tioners not raised on this was Cir. 331 U. (1947) ; the record is not S. district court. While 91 L.Ed. 1399 conditioners, Yeager, concerning ex clear air States rel. DiRienzo v. tags, perforated (3d 1971). does reveal that warehouse F.2d Cir. More over, through appear in- halves since it does not the middle but with both question tact, carpet. pro raised this the state were attached to the seized court ceedings, jurisdiction Thus, police if the were not aware at we would be without even carpet entertain such a § time contention. search U.S.C. stolen, previously nature had been similar reasonably carpet have sus- could rule, compel respondent testify; dif- tions, is to the Miranda embodied warning customary formula type should the first two. fers changed, respondent be and the should warnings requirement of Miranda told, you anything, say ‘If be it will prohibits prophylactic It is a measure. against you you; used if do not made direct evidence use of statements say anything, that will be used voluntarily by defendant who ” you.’ McCarthy v. United rights advised (6th 1928). 298, 299 F.2d Cir. I believe counsel, recognizing that such statements regarding the admonition is as peachment im true testimony. may be as direct as reliable in as where direct use is sweep rule The broad guards against volved. possibility not, however, defendant, I do police that “si- face of believe innocent by subject rights, lence” this defendant was the accusation and unaware of his might prosecutor’s challenged voluntary remarks. make an honest being given defendant, subject after nonetheless, the re- is, statement that quired warnings, Cognizant, inculpatory all answered construction. questions brings put police. to him the however, Ac- that the Miranda rule cording voluntary exclusionary sweep of one within its officer, guilty defendants, who time of his statements may legal gotten good arrest buy” fully stated that he had “a aware their even be carpeting, paid rights given though that he about have per- conditioner, warnings, each air required $150.00 courts have light price voluntary paid impeachment he would not use of mitted of. surprised if the air without Miranda warn- conditioners statements made ings stolen. trial, in- At the defendant as an deterrent testified essential picked up had dishonesty the air condition- tentional defendants. Such ers for holding his one business from Bill in Harris. Gor- is the don, specified who did a business at lo- protection against use of silence cation “Metropolitan under the name Air protection guilt, infer to like the paid Conditioning”, and that he $175.00 given statements, use coerced has not testimony essentially for each. His trial any prophylactic to rule as rise such attempts represent purchase to his say lays a de down. To these items aas “course of business” fendant’s silence the face accusa picture transaction. This differs mark- testimony impeach tion can to be used his edly impression conveyed by from the allowing would have as the same effect statements officer testified impeachment use coerced confessions. night that defendant made the of his recognized The law no testi arrest both in choice of words monial statement drawn from prosecutor’s the details offered. The accusation, the face of unambiguous appear remarks me to duress, nor made under statement upon to comment the differences in the sufficiently to be admit reliable statements made defendant at trial any purpose ted for in a trial. criminal and those made at the time of arrest. are, course, peculiar There circum upon Comment those differences, rather stances such as found in Burt we where upon than silence, per- defendant’s are concerned not with a defendant’s credibility missible where is in issue. exculpatory failure to offer statement reason, For I concur result to rebut but accusation with his failure by Judge reached Hunter Part I as act, help But, to summon in that case. opinion. well as in Part II of his approvingly as this noted and WEIS, Judge (concurring). Circuit quoted in rel. States ex Smith v. Brierly, (3d 1967), 384 F.2d Cir. I concur in Part II of the Court’s “[ljacking opinion such circumstances, to draw and in the result reached derogatory inference from mere I. silence Part as a where the I not see this do unfavorably upon prosecutor commented district “silence.” defendant’s upon

attorney’s focused remarks were credibility, of the defendant’s issue on variations between

and the comments at time of

the tenor of statements at trial were arrest and

proper. to answer

A chooses defendant who

questions claim with truths cannot half protection silent remain

constitutional complete answer other A

as half. question may inconsistent partial reply completely as one differ- Agnellino

ent chose to in detail. When

respond police interrogation, he effec- silent,

tively waived remain very least, topics

at the covered questioning. go no further decid- think we need

ing this case.

UNITED STATES America Jr., WILFORD, Lamott

Claude Appellant.

No. 73-1637. Appeals,

United States Court of

Third Circuit.

Argued Nov.

Decided March

Case Details

Case Name: Attilio Agnellino v. State of New Jersey and Howard Yeager, Principal Keeper, New Jersey State Prison

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 13, 1974

Citation: 493 F.2d 714

Docket Number: 73-1134

Court Abbreviation: 3rd Cir.