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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 MOTION IN LIMINE 

TO PRECLUDE EVIDENCE OR 

ARGUMENT ABOUT THINGS HE 

DID NOT SAY 

Defendant Dr. Scott Warren moves this Court to preclude the government from 

introducing evidence of particular things Dr. Warren did not say to Border Patrol agents on 

January 17, 2018 when he was exercising his Fourth Amendment right to decline any 

consensual or voluntary interaction with law enforcement, and from arguing or otherwise 

implying that his failure to say particular things constitutes evidence of guilt. This motion is 

based on the Fourth and Fifth Amendments to the U.S. Constitution.

1. Background

When Border Patrol agents came onto the property at the Barn on January 17, 2018, they 

sought to establish consensual, voluntary contact. RT 5/30/19 at 40, 67; RT 7/13/18 at 57 

(Agent Burns’ suppression hearing testimony that he intended to “try to gain consensual 

entry into the building. . .”). The Fourth Amendment guarantees the right to refuse any 

voluntary interaction with law enforcement. See, e.g., Florida v. Royer, 460 U.S. 491, 497-
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98 (1983) (right to “decline to listen to the questions at all and [] go on his way”); United 

States v. Woods, 720 F.2d 1022, 1026 (9th Cir. 1983) (in analyzing whether a statement 

violated the Fourth Amendment, “[t]he person so questioned need not answer any questions 

and is legally free to ignore the officer, or to walk away.”). 

Dr. Warren availed himself of this Fourth Amendment right to decline to voluntarily 

engage with the agents. He did not consent to allow the agents onto the property and 

explicitly stated that “he did not wish to answer any questions,” RT 7/13/18 at 49, precisely 

as Royer and Wood say he could. Subsequently, the agents came onto the property anyway; 

the parties litigated the legality of this non-consensual entry pretrial, and the Court ultimately 

ruled that the evidence obtained from the agents’ entry onto the property was admissible. 

See Doc. 110 (Report and Recommendation on Defendant’s Motion to Suppress). 

On May 23, 2019, Dr. Warren filed a Motion in Limine to Exclude Evidence or 

Argument About Assertion of Constitutional Rights as Evidence of Criminal Activity. Doc. 

225. The motion addressed two categories of evidence: Dr. Warren’s request that the Border 

Patrol agents leave the property, and a Know-Your-Rights type sign that was posted inside 

the Barn. The government never filed a response. The parties discussed the motion with the 

Court on May 28, 2019, and the Court took it under advisement. Doc. 231. At the hearing, 

the government indicated that it did not intend to elicit evidence that Dr. Warren had invoked 

his constitutional rights.1

At trial, although the government did not ask Dr. Warren what he said to the agents 

who came onto the property, it did seek to ask him about certain things he did not say. 

Because the government had agreed that the rights invocation was properly precluded, the 

jury was not, and could not be, told what Dr. Warren did say to the agents, i.e., that he did 

not consent to their entry on the property and would not answer questions. In that context, 

1 The defense also filed a Motion in Limine to Preclude Government from Arguing that Not 

Calling the Border Patrol Constitutes Concealment on May 31, 2019, Doc. 235, which 

addressed the decision not to affirmatively contact law enforcement, rather than what was 

or was not said when agents had already arrived. The government never responded to this 

motion, either. Ultimately, on June 6, 2019, the Court issued a minute entry stating that both 

motions were granted in part and denied in part. Doc. 250. The government was precluded from introducing evidence of the sign, and the jury was instructed that ordinary citizens have 

no obligation to report violations of law. 
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by identifying specific things he did not say, the government was allowed to convey the false 

impression that Dr. Warren had consented to voluntarily engage with law enforcement, but 

simply chose not to alert the agents to the presence of the migrants, which, it argued, was 

evidence of guilt. In other words, the government apparently interpreted its obligation as 

only refraining from eliciting Dr. Warren’s explicit statements of invocation of rights, not 

from introducing the conduct of not speaking to the agents) that constituted the exercise of 

those rights. 

The parties brought this dispute to the Court’s attention, and the government for the 

first time raised the concept of “prearrest, pre-Miranda silence.” RT 6/6/19 at 128. At 

sidebar, the prosecutor mentioned two cases, which he identified only as U.S. v. Beckman 

and U.S. v. Oplinger, without citations, which he claimed supported his position that while 

the explicit invocation of rights may have been off limits, the subsequent silence itself was 

admissible. Id. at 128-29 (“No, no. I’m asking him about what he didn’t say. That’s it. I’m 

not going to say that he invoked any right.”). The Court permitted the government to 

question Dr. Warren about a series of things he did not say to the agents.

The question came up again at the end of that same day after the settling of final jury 

instructions, when the defense asked the Court for a ruling on the May 31 motion, in 

anticipation of closing arguments. RT 6/6/2019 at 229-230. The prosecutor stated: “We 

talked about this earlier. United States vs. Beckman, United States vs. Oplinger, clearly state 

that pre-Miranda, prearrest silence can be used as evidence of guilt. . .” Id. He later reiterated, 

“Ninth Circuit case law is absolutely clear. We can use that silence as evidence of guilt. It’s 

clear as day.” Id. at 232. The Court did not explicitly rule, but told the government, “If you 

think the Ninth Circuit supports that argument, go ahead.” The Court then asked whether the 

prosecutor had the cases he was talking about with him—he did not—and, failing that, did 

he have citations for them, which he could not find. Id. at 233-34. He eventually produced 

the citations, and the Court stepped out of the room for just ten minutes. Id. at 236. Upon 

return, the Court stated: “I’ve looked at both Beckman and Oplinger. Oplinger was reversed 

on other grounds Beckman has not been reversed. Beckman still says you can use prearrest 
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silence.” Id. at 237.

Because the government never filed responses to the defense motions, and all of this 

occurred during the heat of trial, neither the defense nor the Court that the opportunity to 

conduct legal research to determine whether any additional authorities might bear on this 

question, nor how to reconcile the line of cases clearly forbidding the use of the exercise of 

rights as evidence of guilt with the cases allowing the introduction of prearrest, pre-Miranda 

silence. Now, with the benefit of research, it is readily apparent that the two lines of authority 

are not in conflict at all. While, as the government’s cases say, the Fifth Amendment’s

protection against compelled self-incrimination has no application to voluntary, 

noncustodial, pre-arrest statements or silence, and thus does not preclude the introduction of 

such evidence, the government may not introduce a defendant’s proper exercise of his 

Fourth Amendment right not to engage in a voluntary or consensual encounter with law 

enforcement. Accordingly, regardless of what the Fifth Amendment allows, the Court should 

preclude the government from eliciting or commenting on things Dr. Warren did not say to 

Border Patrol agents when he was exercising his constitutional right not to engage with them 

voluntarily under the Fourth Amendment.

2. Refusal of Consent to a Voluntary Encounter With Police Is Not Admissible as 

Evidence of Guilt. 

The purpose of the Fourth Amendment is “to prevent arbitrary and oppressive 

interference by enforcement officials with the privacy and personal security of individuals.” 

United States v. Martienz-Fuerte, 428 U.S. 543, 554 (1976). It reflects “the concern of our 

society for the right of each individual to be let alone.” Tehan v. United States ex rel. Shott, 

382 U.S. 406, 416 (1966). 

This does not mean that law enforcement officers may not engage with ordinary citizens 

who are willing; [p]olice officers enjoy ‘the liberty (again, possessed by every citizen) to 

address questions to other persons.’” United States v. Mendenhall, 446 U.S. 544, 553 (1980) 

(citing Terry v. Ohio, 392 U.S. 1, 31 (1968)). They “do not violate the Fourth Amendment 
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by merely approaching an individual on the street or in another public place, by asking him 

if he is willing to answer some questions, by putting questions to him if the person is willing 

to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such 

questions.” Florida v. Royer, 460 U.S. 491, 497 (1983). 

But crucially, the Fourth Amendment guarantees that interactions like these—initiated 

without any particular legal authority—are entirely voluntary. While officers are free to ask 

individuals if they will voluntarily answer questions, “[t]he person approached. . . need not 

answer any question put to him; indeed, he may decline to listen to the questions at all and 

may go on his way.” Royer, 460 U.S. at 497-98 (citing Terry, 392 U.S. at 32-33); see also 

Mendenahall, 446 U.S. at 554 (recognizing that absent a seizure, “the person to whom 

questions are put remains free to disregard the questions and walk away.”); Kentucky v. King, 

563 U.S. 452, 470 (2011) (Fourth Amendment rights adequately protected because “the 

occupant need not allow the officers to enter the premises and may refuse to answer any 

questions at any time.”). The Fourth Amendment thus gives individuals the absolute right to 

ignore or decline requests from law enforcement officers for their voluntary cooperation—

including requests for information and requests for permission to conduct a search. 

As Dr. Warren explained in his motion in limine (Doc. 225), the Ninth Circuit forbids 

prosecutors from using as evidence of guilt a defendant’s exercise of his Fourth Amendment 

right not to consent to a voluntary interaction with law enforcement:

The Ninth Circuit has repeatedly recognized that this principle forbids the 

government from using the assertion of a constitutional right to refuse to 

consent to a search as evidence of wrongdoing. See, e.g., Gasho v. United 

States, 39 F.3d 1420, 1439 (9th Cir. 1994) (“clearly established” for purposes 

of § 1983 action that officer may not arrest subject based on “his challenge to 

the officer’s authority absent a warrant”); Graves v. City of Coeur D’Alene, 

339 F.3d 828, 841-42 (9th Cir. 2003) (refusal to consent to a search may not 

be considered as a factor in support of probable cause). 

This absolute protection inheres even if the defendant’s intention was in fact 

to conceal evidence of wrongdoing (a situation of which there is no evidence 

here). See United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978) 

(drawing parallel, in a prosecution for “harboring or concealing” a criminal, 
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between invocation of Fourth Amendment right to refuse consent to search 

and invocation of Fifth Amendment privilege, from which government is 

absolutely forbidden to argue any implication of guilt). 

Doc. 225 at 2-3. The government has never argued that it may introduce evidence of Dr. 

Warren’s refusal to consent to the agents’ entry onto the property, and it obviously may not.

Instead, the government has argued that while it cannot introduce Dr. Warren’s 

explicit assertion of rights, it can elicit and comment on the conduct that constituted the 

exercise of the right to “refuse to answer questions at any time,” King, 563 U.S. at 470. See 

RT 6/6/19 at 128-29 (“I’m asking him about what he didn’t say. That’s it. I’m not going to 

say that he invoked any right.”). But the invocation and the exercise of a right cannot be 

separated like that. The purpose of the rule espoused in Prescott is to “protect the exercise 

of a constitutional right,” not simply to protect the act of explicitly invoking it. 581 F.2d at 

1351. And here, that right includes the well-recognized right not only to refuse to let the 

officers inside, but to refuse to engage in any voluntary exchange with them at all. 

Indeed, properly precluding reference to the invocation of rights while allowing 

evidence and comment on the conduct constituting the exercise of rights would have the 

perverse effect of allowing the government to badly mislead the jury. As happened in the 

first trial, the government could insinuate that Dr. Warren’s reason for not saying particular 

things was that he knew his conduct was illegal, when in fact his reason was that he was 

exercising his constitutional rights. Dr. Warren could not correct this misinformation 

without sacrificing the protection he is entitled to under Gasho and Prescott. The 

government could thus use his assertion of constitutional rights against him, which is 

precisely what the law forbids. 

In short, Dr. Warren’s non-engagement with the Border Patrol agents was a 

straightforward and intentional exercise of his Fourth Amendment rights. The government 

may not use that exercise against him, either directly by introducing evidence of his assertion 

or indirectly by introducing evidence of his conduct and suggesting that it constituted 

something other than a proper exercise of rights. 
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3. Beckman and Oplinger Do Not Entitle the Government to Introduce Evidence of 

Dr. Warren’s Exercise of his Fourth Amendment Rights. 

At trial, the government relied exclusively on two Ninth Circuit cases to justify its use 

of things Dr. Warren did not say to agents as evidence of guilt. It treated them as creating a 

right or entitlement in the government to introduce pre-arrest, pre-Miranda silence as 

evidence of guilt. But those cases do no such thing. They hold only that such evidence is not 

precluded by the defendant’s Fifth Amendment’s protection against self-incrimination, 

which was the only basis either defendant had presented for precluding it. They have no 

bearing on other possible bases for excluding similar evidence.

In United States v. Beckman, 298 F.3d 788, border agents inspected a trailer that was 

crossing the U.S. Mexico borer at a port of entry and discovered over 1500 pounds of 

marijuana. When the truck entered the primary inspection area, Beckman, who was driving, 

“identified his citizenship and stated he had nothing to declare to customs.” Id. at 791. The 

agent then asked for permission to search the locked trailer, and Beckman “claimed that a 

friend had the keys, and had already crossed over.” The agent found an unlocked door and 

discovered the drugs; Beckman was convicted of importation of marijuana and possession 

of marijuana with intent to distribute. His defense was that he had been set up, and had no 

idea that the trailer attached to the truck he was driving contained marijuana. Id. at 791-92. 

In closing argument, the government “suggested that if Beckman’s courtroom testimony 

about being tricked was actually true he would have offered it at primary inspection. The 

government also argued that Beckman could have told inspectors that he thought Gregg was 

behind him in the third truck.” Id. at 895. 

On appeal, Beckman argued “that opposing counsel’s comments during summation 

violated his Fifth Amendment right to silence.” Id. at 795. The Ninth Circuit issued a onesentence denial of that claim: “The use of a defendant’s pre-arrest, pre-Miranda silence is 

permissible as impeachment evidence and as evidence of substantive guilt.” Id. (citing 

United States v. Oplinger, 150 F.3d 1061, 1067-68 (9th Cir. 1998). 

Beckman, then, contains no analysis, but simply relies on Oplinger. It addresses only 
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a claim that the comment on a defendant’s failure to say certain things in a pre-arrest setting 

would, like a comment on failure to testify, violate his Fifth Amendment right not to “be 

compelled in any criminal case to be a witness against himself.” Beckman did not contend 

that he had asserted or exercised any Fourth Amendment rights. Nor could he; he was 

searched at the border, where the strictures of the Fourth Amendment have limited 

application. See, e.g., United States v. Ramsey, 431 U.S. 606, 619 (1977). 

Oplinger was also a Fifth Amendment ruling. The court defined the question before 

it as “whether the privilege against self-incrimination extends to out-of-court pre-arrest 

statements made to private individuals.” 150 F.3d at 1063.2 Oplinger was a bank employee 

who was stealing from his employer by purchasing office supplies with the bank’s funds and 

then returning them for cash refunds. His supervisor and another bank officer “met with” 

him about the returns and “confronted” him, at which point he “placed his hands over his 

eyes and said he did not know.” Id. at 1064. At trial, the government elicited testimony from 

the supervisor that Oplinger did not offer any explanation for what had happened to the 

money, even when told his conduct would be reported to authorities, did not request an 

opportunity to put together a response, and did not suggest that he talk to anyone else. Id. at 

1065 n.3. The prosecutor argued during closing that his failure to offer an explanation or 

assert at the time that he was wrongly accused did not “sound like the conduct of an innocent 

person.” Id. at 1065 n.4.

On appeal, Oplinger argued that this was error “because ‘non-custodial, pre-arrest, 

and investigatory assertions’ of the right to remain silent are protected by the Fifth 

Amendment privilege against self-incrimination and the right to due process.” Id. at 1066. 

The Ninth Circuit disagreed, holding that “the admission of testimony regarding the. . . 

meeting did not offend Oplinger’s privilege against self-incrimination under the Fifth 

Amendment or his right to due process under the Fourteenth Amendment.” Id. at 1067. It 

grounded this holding in its observation that “[t]he Supreme Court has ‘never on any ground. 

2 Oplinger was overruled in 2010 on a different point, regarding interpretation of a provision in the United States Sentencing Guidelines. See United States v. Contreras, 593 F.3d 1135 

(9th Cir. en banc 2010). 
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. . applied the Fifth Amendment to prevent the otherwise proper acquisition or use of 

evidence which. . . did not involve compelled testimonial self-incrimination of some sort.’” 

Id. (citing Fisher v. United States, 425 US. 391, 399 (1975)). As with Beckman, the 

defendant never claimed he was exercising his rights under the Fourth Amendment, and he 

could not, if for no other reason than that the government was not involved at all in the 

challenged encounter.

In other words, the court in these cases was absolutely not saying that the government 

could introduce evidence of defendants’ exercise of their Fifth Amendment rights as 

evidence of guilt. It was saying that in neither case did the defendant’s silence constitute an 

exercise of Fifth Amendment rights. A person cannot exercise his right not to be officially 

compelled to speak when no one is attempting to officially compel him. Beckman and 

Oplinger, then, leave undisturbed the foundational principle that the government may not 

burden a defendant’s exercise of a constitutional right by using it as evidence of guilt. See, 

e.g., Griffin v. California, 380 U.S. 609, 614 (1965) (prosecutor may not comment on 

defendant’s failure to testify at trial because would “cut[] down on the privilege by making 

its assertion costly.”). 

Here, the issue is not whether the Fifth Amendment applied to Dr. Warren’s 

interaction with the agents. In the period prior to his arrest and detention, it clearly did not, 

and accordingly, as in Beckman and Oplinger, the Fifth Amendment does not preclude that 

evidence. But in this case, the Fourth Amendment does preclude the evidence, for the 

reasons explained above. Accordingly, this Court must preclude the government from 

eliciting testimony about, or commenting on, things Dr. Warren did not say to the agents 

during the January 17, 2018 encounter. 

Dated this 19th day of September, 2019

KUYKENDALL & ASSOCIATES

By /s/ Amy P. Knight________

Gregory J. Kuykendall

Amy P. Knight
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531 S Convent Avenue

Tucson, AZ 85701

Attorneys for Defendant Scott 

Daniel Warren

CERTIFICATE OF SERVICE

I certify that on September 19, 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