United States v. Freddie McKinley Smith

Smith was convicted of violating 18 U.S.C. § 2312 . He urges reversal on two grounds.

Smith first argues that certain statements which he made to a highway patrol officer should have been excluded because he was not given Miranda warnings prior to his interrogation. The officer stopped the car in which Smith was a passenger for a traffic violation. The officer first questioned the driver, then checked his story with Smith. We stated in Lowe v. United States, 407 F.2d 1391, 1394 (9th Cir. 1969):

The rule applies equally to questioning of a passenger of the nature and scope involved here.

The unexpressed intent of the officer to detain Smith had he attempted to leave does not create a custodial interrogation. Lowe, supra, 407 F.2d at 1397 .

Smith next argues that reversal is required because the prosecution commented during closing argument on Smith’s failure to testify. Taken in context and fairly construed, the comments refer to a statement made by Smith to an FBI agent which was properly in evidence. But at most they are ambiguous, and, considering the record as a whole, any error remaining after the trial court properly instructed the jury that no inference could be drawn…