NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
OPINION
Defendant argues that a probation condition requiring him to "cooperate" with field interrogations by peace officers is unconstitutional because it threatens probation revocation if he asserts his Fifth Amendment privilege against self-incrimination. 1 Such a threat would raise constitutional concerns because the government may not foreclose a probationer from asserting his Fifth Amendment privilege by threatening to revoke probation. (Minnesota v. Murphy (1984) 465 U.S. 420, 434.) If the government attempts to do so, it will be constitutionally prohibited from "mak[ing] good" on the threat and any statements will be deemed compelled and inadmissible. (Ibid.)
However, defendant's probation condition contains no such threat. It would not be inherently uncooperative for defendant to assert the Fifth Amendment; defendant could still follow instructions and answer nonincriminating questions. (See U.S. v. Davis (1st Cir. 2001) 242 F.3d 49, 52 [finding no realistic threat in a requirement to "cooperate" with the probation officer].) Therefore, although defendant must generally cooperate with the police, he retains the right to assert the Fifth Amendment and his probation cannot be revoked based on a valid exercise of that right.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur:
Ward, J.
Gaut, J.
1. Defendant also claims that this violates his Sixth Amendment right to counsel, but fails to separately argue that issue.