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Gregory J. Kuykendall, Bar # 012508

Amy P. Knight, Bar # 031374

KUYKENDALL & ASSOCIATES

531 S Convent Avenue

Tucson, AZ 85701

(520) 792-8033

greg@kuykendall-law.com

amyknight@kuykendall-law.com

Attorneys for Defendant Scott Daniel Warren

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

SCOTT DANIEL WARREN,

Defendant.

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No. 18-CR-00223-RCC(DTF)

DEFENDANT’S REPLY IN SUPPORT 

OF MOTION IN LIMINE TO 

PRECLUDE EVIDENCE OR 

ARGUMENT ABOUT THINGS HE 

DID NOT SAY 

The government resists this motion on two bases: continuing to insist that United 

States v. Beckman, 298 F.3d 788 (9th Cir. 2002) and United States v. Oplinger, 150 F.3d 

1061 (9th Cir. 1998), guarantee the government the right to introduce particular evidence, 

and denying that declining to voluntarily interact with law enforcement implicates the Fourth 

Amendment. Neither basis has merit.

Fourth Amendment

The government takes an illogically restricted view of the Fourth Amendment, 

focusing only on when Fourth Amendment rights are infringed (which requires a search or 

seizure), ignoring its function to limit the powers of law enforcement and protect citizens’ 

refusal to interact. Response (Doc. 338) at 4. That is not how constitutional protections work; 

although their violation does give rise to legal claims, they also substantively limit the 

government’s actions and protect certain citizen’s actions, and can be affirmatively asserted

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ex ante. See, e.g., United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978) (recognizing

that an occupant admitting officers who arrive without a warrant would constitute 

“surrender[ing] his Fourth Amendment protection”). It is that affirmative assertion that is at 

issue here. 

Under the government’s view, no one could ever “invoke” a constitutional right, 

because the right has no application unless it has been infringed. See Response at 4 (“The 

Fourth Amendment is not implicated in this situation unless the individual is detained 

without ‘reasonable, objective grounds’ consisting of something more than refusal to answer 

questions.”). If this were the case, then a defendant could not invoke a Fifth Amendment 

right when in custody, because he has not actually been compelled to speak. That is 

obviously not the case; rather, the Fifth Amendment gives him the right to say nothing to 

begin with—and not to be penalized for that. Likewise, while the Fourth Amendment is 

violated by an unreasonable search or seizure, it can also be asserted by refusing to consent 

to a voluntary police encounter. 

If the government’s view were correct, individuals would have no right to decline to 

answer questions prior to arrest, but then that right would materialize once they were in 

custody. That obviously isn’t so. Rather, the Fourth Amendment protects refusal to answer 

officers’ questions voluntarily, when the person could walk away; the Fifth Amendment 

protects refusal to answer when officers could otherwise compel speech, because the person 

is in custody.

The government asserts that it must prevail because “the Fourth Amendment does 

not create a right to remain silent independent of the Fifth Amendment.” Response at 4. 

Although that is an unusual way of framing the Fourth Amendment protection, it absolutely 

does create a right, among other things, not to answer any questions posed by law 

enforcement when the individual has not been detained. Indeed, the government itself cites 

Florida v. Royer, 460 U.S. 491, 498 (1983), as holding, in part, that when law enforcement 

officers approach individuals, “the individual may walk away and refuse to answer those 

questions.” Response at 4. That right, as the Royer Court recognized, is inherent in the Fourth 

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Amendment; the reason a person is free “to refuse to answer those questions” is that the 

Fourth Amendment does not permit law enforcement officers to detain him for so refusing. 

Royer, 460 U.S. at 498. Likewise, it is the Fourth Amendment that forbids law enforcement 

officers to detain anyone, however briefly, unless they have reasonable suspicion based on 

articulable facts, and thus permits them to walk away rather than respond. Terry v. Ohio, 

392 U.S. 1, 27 (1968). And the reason that, when police knock, an occupant “has no 

obligation to open the door or to speak,” and “need not allow the officers to enter the 

premises and may refuse to answer any questions at any time,” is that the Fourth Amendment 

does not permit them to enter against the occupant’s will absent a warrant. Kentucky v. King, 

563 U.S. 452, 470 (2011). It is precisely because of this Fourth Amendment right that the 

Supreme Court ruled that police could avail themselves of the exigent circumstances rule 

even when their presence created the exigency: “Occupants who choose not to stand on their 

constitutional rights but instead elect to attempt to destroy evidence have only themselves to 

blame for the warrantless exigent-circumstances search that may ensue.” Id. It is those very 

constitutional rights, explicitly relied on by the government in successfully defending police 

conduct in the Supreme Court, that the government is now claiming do not exist.

Finally, the government represents to this Court that “the defendant’s encounter with 

Agent Burns was consensual. The defendant even volunteered to accompany Agent Burns 

to the Barn.” Response at 4. That is a badly distorted version of the events; Agent Burns 

himself testified that what Warren said to him, after asking him what basis he had for 

entering private property, was that “he did not wish to answer any questions,” and then 

“stated that he wanted us to leave.” RT 7/13/18 at 49-50. That is not a consensual encounter; 

that is constitutionally-protected refusal to consent. Only after Agent Burns told Dr. Warren 

that he was going to approach the Barn anyway did Warren say he would accompany him—

presumably to observe and document the agent’s actions that were being taken without his 

consent. The government then tries to use this mischaracterization to establish that “no 

Fourth Amendment violation occurred.” But that is not the question; the question is whether 

Dr. Warren’s failure to voluntarily provide the agent with information constituted an 

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exercise of his Fourth Amendment rights. It obviously did; asking an agent to leave and 

refusing to answer questions is the prototypical Fourth Amendment assertion. And the 

violation comes in using that—the actual assertion and the associated silence that put that 

assertion into practice—against the defendant.

Beckman and Oplinger

The government has entirely missed the actual holdings of Beckman and Oplinger. 

In both cases, the Court held that the Fifth Amendment did not apply because the defendant 

was not under any threat of official compulsion to speak—either because the agents 

questioning him had not detained him (Beckman), or because they were not agents at all, and 

had no conceivable power to compel him to speak (Oplinger). The case Oplinger relies on, 

United States v. Giese, 597 F.2d 1170, 1196-97 (9th Cir. 1979), also involved evidence of 

accusations by private individuals, not government agents, but the defendant still attempted, 

unsuccessfully, to claim Fifth Amendment protection. In other words, these cases merely 

recognize that the risk of official compulsion against which the Fifth Amendment protects 

does not generally arise absent arrest.

The government misapprehends defendant’s argument. These cases are inapplicable 

not because Beckman took place at a port of entry, which is a different “location” from the 

Barn, Response at 5, but rather because those cases resolved the attempted assertion of an 

entirely different constitutional right than the one at issue here. The Fourth Amendment right 

defendant asserts here was not an option for the defendants in those cases, because of the 

contexts of those encounters; neither involved government agents approaching a defendant 

on private property or even in public. Thus, none of those cases had occasion to consider 

whether the Fourth Amendment might exclude evidence of silence.

Finally, the government cites Jenkins v. Anderson, 447 U.S. 231 (1980), for its 

insistence that “a defendant may be impeached with his pre-arrest, non-custodial silence if 

he chooses to testify at trial.” Response at 2. But the Jenkins Court made no such guarantee.

For one thing, the claim presented, and resolved, was that the evidence must be excluded by

“the fundamental fairness guaranteed by the Fourteenth Amendment.” 447 U.S. at 238. The 

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Fourth Amendment question was not presented. The Court also took great care also to 

specify that courts should allow such evidence only “when prior silence is so inconsistent 

with present statements that impeachment by reference to such silence is probative,” and 

cited with approval its previous holdings “that prior silence cannot be used for impeachment 

where silence is not probative of a defendant’s credibility and where prejudice to the 

defendant might result.” 447 U.S. at 239. Indeed, the Supreme Court has repeatedly reversed 

convictions where the government was permitted to cross-examine a defendant about prior 

silence. See, e.g., Grunewald v. United States, 353 U.S. 391, 423 (1957) (reversing 

conviction where government cross-examined defendant regarding prior assertion of right 

to silence in light of the “grave constitutional overtones”); United States v. Hale, 422 U.S. 

171, 178-181 (1975) (“prejudicial error for the trial court to permit cross-examination of 

respondent concerning his silence during police interrogation,” recognizing that “the jury is 

likely to assign much more weight to the defendant’s previous silence than is warranted” 

given the “many alternative explanations for his pretrial silence” and the risk of “intolerably 

prejudicial impact”). This Court, too, should recognize the significant risks presented by 

such questioning, and should forbid the government from introducing evidence of Dr. 

Warren’s silence in exercise of his Fourth Amendment rights.

As in Hale, there are many alternative explanations for Dr. Warren’s silence, 

including his wish to assert and preserve his constitutional rights; the No More Deaths 

protocol directing volunteers that they should not answer Border Patrol questions, but rather 

should walk away; and his understanding that Border Patrol agents might treat certain things 

as criminal even when they were not in fact ultimately unlawful. Indeed, the state of the law 

on harboring has continued to evolve; United States v. Tydingco, 909 F.3d 297 (9th Cir. 

2018), the case clarifying the required elements, was not decided until ten months after this 

encounter. Accordingly, even if evidence of silence and argument regarding it were not 

constitutionally prohibited, they would create an intolerable risk of serious prejudice for no 

significant evidentiary value, and at the very least, this Court should exclude them as an 

evidentiary matter in its discretion.

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Dated this 9th day of October, 2019

KUYKENDALL & ASSOCIATES

By /s/ Amy P. Knight________

Gregory J. Kuykendall

Amy P. Knight

531 S Convent Avenue

Tucson, AZ 85701

Attorneys for Defendant Scott 

Daniel Warren

CERTIFICATE OF SERVICE

I certify that on October 9, 2019, I electronically transmitted a PDF version of this 

document to the Clerk of Court using the CM/ECF System for filing and for transmittal of 

a Notice of Electronic Filing to the following CM/ECF registrants: 

Nathaniel J. Walters, Esq. (email: Nathaniel.walters@usdoj.gov) 

Anna R. Wright, Esq. (email: anna.wright@usdoj.gov) 

United States Attorney’s Office 

405 W. Congress, Suite 4800 

Tucson, AZ 85701

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