Comment: Disagree. I'm with Breyer,

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Disagree. I'm with Breyer,


I'm with Breyer, who in his dissent writes:

... the need to categorize Salinas’ silence as based on the Fifth Amendment is supported here by the presence, in full force, of the predicament I discussed earlier, namely that of not forcing Salinas to choose between incrimination through speech and incrimination through silence. That need is also supported by the absence of any special reason that the police had to know, with certainty, whether Salinas was, in fact, relying on the Fifth Amendment—such as whether to doubt that there really was a risk of self-incrimination, see Hoffman v. United States, 341 U. S. 479, 486 (1951), or whether to grant immunity, see Kastigar, 406 U. S., at 448. Given these circumstances, Salinas’ silence was “sufficient to put the [government] on notice of an apparent claim of the privilege.” Quinn, supra, at 164. That being so, for reasons similar to those given in Griffin, the Fifth Amendment bars the evidence of silence admitted against Salinas and mentioned by the prosecutor.

The 5th amendment states expressly that no person "shall be compelled in any criminal case to be a witness against himself," and as Breyer points out, that's precisely what this decision is allowing. A person's silence in a non-custody circumstance can now be used against them; that is, a person who chooses to be silent in a non-custody situation, pre-Miranda, is indeed implicitly invoking the protections of the amendment; and this decision now compels that person to be a witness against himself should the prosecution introduce the silence as evidence of guilt.