What is the current state of the law on the use of evidence that prior to arrest does not violate the Fifth Amendment?

1989) (the government's affirmative use of defendant's prearrest invocation of Fifth Amendment rights was unconstitutional); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1015, 1017 (7th Cir. 1987) (introduction of officer's testimony that defendant said "he didn't want to make any statements" violated the Fifth Amendment); with United States v. Oplinger, 150 F.3d 1061, 1065-67 (9th Cir. 1998) (admission of testimony regarding defendant's reaction to prearrest questioning by his supervisors into potentially illegal activity did not violate the Fifth Amendment), overruled on other grounds by United States v. Contreras, 593 F.3d 1135 (9th Cir. 2010); United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996) (finding constitutional prosecutor's use of evidence that prior to arrest defendant did not indicate that he was under duress because "[t]he fifth amendment protects against compelled self-incrimination but does not . . . preclude the proper evidentiary use and prosecutorial comment about every communication or lack thereof by the defendant which may give rise to an incriminating inference") (emphasis in original); United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991) ("The government may comment on a defendant's silence if it occurred prior to the time that he is arrested and given his Miranda warnings.").

In identifying this circuit split, the government did not distinguish between cases involving defendants who simply failed to speak prior to arrest and those involving defendants who affirmatively invoked their right to remain silent. It is a distinction we similarly elided in United States v. Caro, 637 F.2d 869, 876 (2d Cir. 1981), in which we expressed doubt that the Fifth Amendment "permits even evidence that a suspect

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