Email or Call (215) 564-0644

    Post-Arrest Silence in Pennsylvania Criminal Drug Cases – U.S. v. Shannon

    U.S. v. Shannon is a recent federal case (Pennsylvania, 3rd Circuit Court of Appeals) which discusses post-arrest silence in a drug possession/distribution trial. This court decision serves as a warning to prosecutors about over-reaching when a defendant takes the witness stand. Post-arrest silence is a constitutional right, which applies even if the defendant takes the stand.

    Why Federal Law Applies to Both State and Federal Criminal Cases

    Why are Federal Constitutional Cases Important in State Criminal Cases?

    Under the U.S. criminal justice system, both state and federal agencies have the ability to prosecute individuals for crimes like possession of drugs or drug dealing. While the actual criminal statutes are different in state and federal criminal cases, the underlying principles of constitutional law are the same. Federal constitutional protections/laws are like minimum requirements and must be followed in all federal and state criminal cases. State constitutional law may differ from federal law, but only insofar as state law provides greater protections.

    Post-Arrest Silence

    Under constitutional law applicable in criminal cases, an individual arrested and charged with a crime has the right to remain silent. If you’ve been arrested and charged with a crime in this country, you don’t have to profess that you’re innocent. You can say and do nothing in your defense. That’s because the burden of proving guilt belongs solely to the government.

    Therefore, it’s quite clear that at trial, a defendant’s post-arrest silence cannot be used to argue guilt. In other words, the prosecuting attorney cannot tell the jury that the defendant said nothing after being arrested, i.e., “You know he’s guilty because after he was arrested, he didn’t tell the police officers that he was innocent.”

    What if the Defendant Testifies at Trial?

    The constitutional protection applies even if the defendant takes the witness stand at trial. However, if the defendant testifies at trial that he is innocent and testifies that he had told police officers about his innocence when he was arrested, the prosecutor may then ask about his post-arrest silence.

    In the Shannon case, the defendant was charged with conspiracy to distribute drugs and possession with intent to distribute drugs (cocaine). Shannon was a truck driver who was arrested after an extensive drug investigation by federal drug agents in western Pennsylvania. Inside his truck, officers found a large bag with over half a million dollars and several cell phones.

    Shannon testified at trial and had explanations for having multiple cell phones. He also testified that he did not know about the bag of cash and instead had only tried to help a stranger. On cross-examination, the assistant U.S. attorney questioned him about why he didn’t tell officers his version of events or otherwise say anything before the trial. The prosecutor asked the following questions:

    • Did you ever direct anyone to come to the authorities and say, listen, you need to know about [a witness]?
    • Did you ever direct anyone to bring that information to law enforcement?
    • You waited until you took the stand and then you told us about [other witnesses] right?

    The trial court allowed this line of questioning even though the defendant’s attorney objected based on the 5th Amendment. On appeal, the court agreed with the defendant and held that the government attorney had violated the defendant’s constitutional rights.

    Related: Auto Stop Yielding Large Amounts of Cocaine, Suppression Granted by Philadelphia Trial Judge

    Philadelphia Criminal Law Firm – FREE CONSULTATIONS

    Our lawyers focus on criminal cases in Philadelphia. Firm partner David Nenner has decades of experience handling drug and gun cases. He offers a free consultation. Please call (215) 564-0644.

    Disclaimer: This website does not create any attorney-client relationship or provide legal advice. Our lawyers provide legal advice only after accepting a case. It is imperative that any action taken is done on advice of counsel. Read full disclaimer below.

    David S. Nenner

    "Top Rated Criminal Defense Lawyer"

    Not guilty on 1st Degree MURDER CHARGE (dec. 2022, Pottsville, Pa)

    Mr. Nenner's client faced first degree murder, third degree murder and various other charges. The Commonwealth alleged that Mr. Whitted stabbed and killed a driver after an incident at a red light in West Brunswick Township. Throughout the trial, Mr. Nenner argued...

    MURDER, Att. Murder CHARGES – Negotiated Significantly Lower prison sentence (Feb. 2022, PHILA)

    Mr. Anderson faced murder and attempted murder charges after an incident in Northeast Philadelphia involving the shooting death of Anderson’s sister’s boyfriend and the boyfriend’s roommate who was shot 5 times and survived. The decedent had previously beaten the...


    The Commonwealth alleged that Mr. Shelton shot and seriously injured a male in a bar in North Philadelphia called Circles. There was video of the shooting which happened outside the bar. However, Mr. Nenner presented witnesses who testified that the person in the bar...


    Mr. Nenner's client was charged with multiple crimes (murder, conspiracy, aggravated assault, robbery, etc.) after a shooting death occurred at a gambling house in North Philadelphia. At trial, Mr. Nenner successfully presented a self-defense argument and convinced...


    Mr. Nenner’s client was charged with murder and gun charges in Philadelphia. The client was accused of shooting and killing another male on Arch Street near the 5600 block of Ithan Street in Philadelphia. The jury returned a verdict of not guilty after deliberating...

    Drug Charges in Philadelphia PA State Court – Possession of a Controlled Substance

    In most criminal drug cases in Philadelphia, there are two common charges or offenses: Possession of a Controlled Substance and Possession of a Controlled Substance with Intent to Deliver. In addition to these drug charges, there are other drug related charges, such...

    Drug Charges in Philadelphia PA State Court – What is “Possession”

    Page last reviewed and updated: October 20, 2019 One of the most common types of criminal state (PA) cases in Philadelphia is possession of drugs. Possession of a Controlled Substance (PCS) and Possession of a Controlled Substance with Intent to Deliver (PWID) often...

    Pennsylvania Second Degree Murder (AKA: Felony Murder) Law

    Philadelphia criminal lawyer David S. Nenner discusses the current status of second degree murder law in Pennsylvania. This is also known as the felony murder rule. Get info about PA court decisions and the agency theory. Not every case of death during the commission of a felony will result in a second degree murder conviction in PA.

    Philadelphia Murder Cases – Police Investigation Tactics

    Questioning Police Officer Tactics in Philadelphia Murder Cases Within the last 10 years, there have been several murder Philadelphia criminal cases in which the accused individuals were acquitted of the crimes. In these cases, the individuals spent months, if not...

    Murder Charges in Pennsylvania – Murder Law in Pennsylvania

    An explanation of Pennsylvania murder laws including Section 2502. What is murder in the first degree, murder in the second degree and murder in the third degree. Get a summary of the definitions under Pennsylvania criminal law.