## Facts

- Brandon M. Clarke was arrested by MBTA transit police for alleged indecent assault and battery on the subway and was held in custody.
- Officers advised Clarke of his Miranda rights and presented a written waiver form before questioning.
- When asked if he wanted to speak, Clarke asked what would happen if he did not speak.
- An officer responded that nothing would happen and asked, “So you don’t want to speak?”; Clarke shook his head side-to-side in a negative response.
- Officers did not end the interaction; they continued talking about the process (including that he would be held until bail or arraignment) and stated they could not talk to him unless he decided to talk.
- Clarke repeatedly said he was “confused” and “scared,” then ultimately agreed to speak, signed the waiver form, and made inculpatory statements, including that he brushed his hand against the alleged victim.
- A Boston Municipal Court judge allowed Clarke’s motion to suppress, finding he invoked his right to remain silent and police failed to honor that invocation.
- The Commonwealth pursued an interlocutory appeal to the Supreme Judicial Court of Massachusetts.

## Issues

1. Whether a suspect’s pre-waiver headshake “no” in response to “So you don’t want to speak?” constitutes an invocation of the right to remain silent under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights.
2. If the right was invoked, whether police “scrupulously honored” the invocation such that later statements could be admitted.
3. Whether, in the pre-waiver context, art. 12 requires invocation with the same “unambiguous” or “utmost clarity” standard applied under federal law.

## Decision

- The Supreme Judicial Court affirmed the suppression order.
- The court held that Clarke’s headshake was an invocation of the right to remain silent under the Fifth Amendment and art. 12.
- The court held police did not “scrupulously honor” the invocation because they continued engagement aimed at securing a waiver and statements.
- The court held that, in the pre-waiver context, art. 12 does not require a suspect to invoke the right to remain silent with “utmost clarity” as under the federal standard.

## Legal Principles

- A suspect may invoke the right to remain silent through nonverbal conduct when the gesture, in context, is a clear negative response to whether the suspect wishes to speak.
- Once the right to remain silent is invoked, police must cease interrogation and must “scrupulously honor” the decision to remain silent; continued efforts to obtain statements violate that obligation.
- A later signed Miranda waiver does not cure a failure to respect an earlier invocation where police conduct improperly presses the suspect to talk.
- Under art. 12, Massachusetts may apply greater protection than federal law; in the pre-waiver setting, invocation need not satisfy an “utmost clarity” requirement.

## Conclusion

A suspect’s pre-waiver headshake “no” can invoke the right to remain silent, and when police continue discussion designed to obtain a waiver and confession, they fail to scrupulously honor that invocation, requiring suppression of subsequent statements under both the Fifth Amendment and Massachusetts art. 12.


Commonwealth v. Clarke, 960 N.E.2d 306 (Mass. 2012)