concurring:
I would affirm Moore’s conviction. I do not join the majority opinion, because I think its crucial holding — that the district judge erroneously permitted the prosecutor to use appellant’s silence “post custody” — is both an impermissible appellate factual finding and an unjustified extension of constitutional law. The distinction drawn by the majority between the use of silence versus statements *392when a defendant is in custody cannot be logically defended. I also believe that Judge Sentelle’s extensive discussion of the constitutional framework in which a defendant’s pre-arrest, and presumably pre-custody, silence is to be considered proceeds from a false premise. Finally, I think appellant’s claim regarding the prosecutor’s slighting reference to trial lawyers (including himself) raises a tempest in a teapot.
Appellant urges us to conclude that he was denied a fair trial because of the prosecutor’s “improper comments on [his] post-arrest silence.” Counsel objected to the prosecutor’s closing argument reference to appellant’s silence when the guns and drugs were discovered, but he did not object when the testimony as to appellant’s silence was adduced, so I do not see why appellant did not waive the point altogether. But, in any event, aside from counsel’s conclusory statement, appellant points to absolutely nothing to establish that the silence took place post-arrest or even while Moore was “in custody.” Appellant’s brief contains not a single mention of the factual context in which the silence occurred, much less an argument or citation to the record. The government, for its part, understandably treats the silence to which Moore refers as having taken place pre-ar-rest, noting that appellant had not yet been given Miranda warnings. And at oral argument we, along with counsel, focused on the possible limitation on the prosecutor’s use of a defendant’s pre-arrest silence.
The majority takes from this presentation the rather startling conclusion — not argued by appellant and certainly not shown — “that Moore was in custody” at the time of his commented upon silence and therefore his silence cannot be used against him. Of course, it is the appellant’s burden to establish factually that he was in custody as a pre-condition to an argument that the Constitution protects his silence in that situation. And that this burden must be satisfied is an entirely separate inquiry from whether the claim was preserved for appeal — which is how the majority rather obviously misreads my objection.1 Compare Maj. Op. at 384-85. Although appellant’s counsel did characterize defendant’s status at the relevant time as post-arrest (which the majority does not accept), he never made the alternative argument that if not post-arrest, defendant’s silence took place post-custody. In that respect, I do not understand the majority’s assertion that the district judge was in a “better position” to make this determination, insofar as the custody argument was not even presented to him and since, when the appellant objected to the prosecutor’s reference to Moore’s silence, the judge overruled the objection.2 The following colloquy, which occurred during the prosecutor’s closing argument, was the sole mention of this issue at trial:
Defense Counsel: ... It is completely improper for him to comment on post-arrest silence.
Prosecutor: Your honor, there is no proof after arrest that — that is a mischaracteri-zation any how of what was going on....
The Court: Well, the objection is overruled, but I think you did that.
(Emphasis added.) Whatever the judge meant by “that,” it was certainly not a finding that appellant was in custody. I suppose, then, that the majority opinion stands for the proposition that a party need not assume the burden to prove facts relevant to a legal argument that an appellate court develops sua sponte (but I certainly hope not).
Turning to the majority’s own custody “finding” and its Fifth Amendment constitutional analysis, the majority asserts that after the drugs and guns were found in the car’s engine compartment no reasonable person would feel “free to leave” the scene, *393relying on Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). But the free-to-leave test is one drawn from Fourth Amendment search and seizure cases, not Fifth Amendment cases. Fifth Amendment considerations, ie., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) are only triggered by custodial interrogation or its equivalent. Berkemer, 468 U.S. at 436-40 & n. 25, 104 S.Ct. at 3148-50 & n. 25; cf. United States v. Gale, 952 F.2d 1412, 1415-16, n. 4 (D.C.Cir.1992) (noting that although appellant was not free to leave, he was not subject to “full-blown” arrest and therefore no Miranda violation occurred when the police officer questioned appellant). Miranda’s ruling was prompted by: “incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights. An understanding of the nature and setting of this in-custody interrogation is essential to our decision today.” 384 U.S. at 445, 86 S.Ct. at 1612. A defendant must establish the required element of compulsion to activate Fifth Amendment considerations.
Berkemer hardly suggests that on the facts with which we are presented we should conclude that appellant was in “custody” for Fifth Amendment purposes when his silence was noted. Although the Court recognized that a defendant was entitled to a Miranda warning if placed in custody that was substantially the same as a formal arrest, the Court carefully drew that threshold higher than Moore could meet in this case. In Berkemer, a trooper pulled a defendant over after observing his car weave in and out of lanes. The officer asked the defendant to get out of the car and noticed that the defendant had enormous trouble standing. The officer admitted at that point that the defendant’s freedom to leave was terminated, although he did not convey this to the defendant. The trooper had the defendant take a sobriety test, which the defendant failed. The officer then began to question the defendant about his alcohol consumption, but did not give Miranda warnings. The defendant’s answers were testified to. The Supreme Court held:
[NJothing in the record indicates that respondent should have been given Miranda warnings at any point prior to the time [the trooper] placed him under arrest.... And respondent has failed to demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest.
Id. at 441, 104 S.Ct. at 3151 (emphases added). The court more generally observed that “[t]he ... noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.” Id. at 440, 104 S.Ct. at 3150.
The majority ignores Berkemer’s presumption that traffic stops are non-eustodial and offers nothing to distinguish this case from the factors the Court thought critical in reaching its holding. The Berkemer Court emphasized the relatively temporary and brief nature of traffic stops — a far cry from station house interrogation, which frequently is prolonged, and, unlike the traffic stop, police-dominated and not in view of the public. Id. at 438-39, 104 S.Ct. at 3149-50. Yet no mention is made in the majority’s opinion of the time that elapsed, the number of officers present, or the flow of traffic in the area.
By holding that, for Fifth Amendment purposes, appellant was in custody equivalent to an arrest, the majority would appear to be concluding — particularly by relying on Ber-kemer — that instantaneously, when the drugs and guns were discovered, he should have been given a Miranda warning — for after all, he was at that moment in custody. No time should have been permitted to lapse during which his silence could be observed before a Miranda warning should have issued; Yet, paradoxically, the majority agrees that had Moore blurted a confession at that moment, it could be used against him, Maj. Op. at n.5, because it is only the defendant’s silence which receives protection as a general rule. The majority explains this distinction between a post-custodial pre-arrest statement, which is admissible, and post-custodial pre-arrest silence which is not, by characterizing the former as a “waiver” of the right to *394rp.ma.in silent. But how could a defendant be thought to have effectively waived a right to remain silent before he was given a Miranda warning? The whole purpose of Miranda was to ensure that any defendant’s statement was an informed waiver. I am afraid the majority’s logic is hopelessly tangled.
It is simply impossible to understand why the Constitution should be read as permitting a prosecutor to produce evidence that a defendant in this situation sua sponte admitted that the drugs and guns were his but not that he remained silent under circumstances where an innocent man would surely have said or done something reflecting shocked surprise. Suppose, for instance, the defendant had shrugged his shoulders in a gesture indicating defeated resignation? Would not that evidence be at least constitutionally admissible?3 In any one of these situations, the defendant’s behavior is a form of communication that shows guilty knowledge. In that respect, silence can be just as probative as a statement and, absent coercion or deception,4 there can be no plausible constitutional bar to its admission.
The majority’s suggestion that my understanding of the Constitution creates “an incentive for arresting officers to delay interrogation in order to create an intervening ‘silence’ that could then be used against the defendant,” Maj. Op. at 385, seems rather far-fetched. It is hard to imagine in a true custodial (virtual arrest) situation police officers remaining silent for some period of time; but if they did so, surely it would be to induce the defendant to speak, not to remain silent, and under the majority’s rationale, paradoxically, such a statement would be admissible. Indeed, if it were not admissible, that could only be because a lengthy police silence in such circumstances could be thought to be an effort to circumvent Miranda. But that just makes clear my fundamental point that it is only after a Miranda warning, or at the very minimum, the time that a Miranda warning should have been given, see supra n. 4, that a defendant’s silence could be thought protected. It is obvious that in this case the Miranda warning could not possibly have been given in the split second between the discovery of the guns and drugs and defendant’s observed silence.
It would appear that the majority’s new found “rule” stems from its reading of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and Miranda (and its progeny), Maj. Op. at 385, but nothing in those cases supports, let alone establishes, such a principle. The Supreme Court in Griffin held that a prosecutor could not comment on a defendant’s failure to testify at trial because that would penalize the defendant’s right not to be a witness against himself. Griffin thus bars commenting on a particular type of defendant silence — failure to testify at trial — which is certainly not the sweeping prohibition that the majority reads it to be. Maj. Op. at 385. It applies within the courthouse walls and no further. A defendant’s silence before trial would be fair game (constitutionally speaking) for a prosecutor were Griffin the only barrier. And Miranda, as we have noted, only established that warnings must be given to an individual when subjected to custodial interrogation. See 384 U.S. at 477, 86 S.Ct. at 1629.
In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), however, the Court imposed a bar against using a defendant’s silence following Miranda warnings, but — and this is analytically important — not on self-incrimination grounds. Doyle was explicitly limited to due process considerations, see Wainwright v. Greenfield, 474 U.S. 284, 291 n. 7, 106 S.Ct. 634, 639 n. 7, 88 L.Ed.2d 623 (1986), a point that seems lost, as Judge *395Tatel recognizes, in the majority opinion. See, e.g., Maj. Op. at 386-87. Doyle rested “on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial” — a sort of estoppel notion. Id. at 291, 106 S.Ct. at 638.
The majority nevertheless chastises the government for turning “a whole realm of constitutional protection on its head” by suggesting Doyle was limited to post -Miranda warning situations. Maj. Op. at 386. Yet in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam), the Supreme Court agreed with precisely the position espoused by the government here and flatly rejected the reasoning offered by my colleagues. The Court refined Doyle by noting that the prosecutor’s impeachment use of post-arrest silence absent Miranda warnings does not implicate due process considerations; the unfairness that concerned the Court in Doyle resulted from the “affirmative assurances embodied in the Miranda warnings.” Id. at 607, 102 S.Ct. at 1312. Contrary to the majority’s view, see Maj. Op. at 386, Doyle was strictly limited to situations involving explicit assurances.5
The majority dismisses Weir and Doyle because in those cases the government had used a defendant’s silence' to impeach his testimony, and, therefore, it is claimed that they simply do not bear on the question whether a defendant’s silence can be used as part of the government’s affirmative case. To be sure, evidence which is used only for impeachment will, at times, be treated differently than if it were used when a defendant does not testify. See, e.g., Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926). But the majority does not and cannot explain why the logic of Doyle and Weir is cabined to impeachment. The majority stands only on its general rule. See Maj. Op. at 386-88. A close look at the cases upon which my colleagues rely, however, reveals that the “rule” is, in fact, a creature of the majority’s own making, and the reasoning of Doyle and Weir cannot be limited.
This same flawed analysis drives Judge Sentelle’s treatment of pre-arrest, non-eusto-dial silence as well (which Judge Tatel does not join) — a discussion that is all the more troubling because it is completely irrelevant to the determination that the silence at issue here took place after the defendant was in custody. He speaks of the applicability of the Fifth Amendment to pre-arrest silence as an “unsettled question” because Jenkins limited its discussion to impeachment (admittedly, the footnote in Jenkins suggests as much, see Jenkins, 447 U.S. at 241 n.2, 100 S.Ct. at 2131 n. 2). Cf. id. at 241, 100 S.Ct. at 2131 (Stevens, J., concurring) (noting that the majority’s emphasis in Jenkins on impeachment “incorrectly implies that a defendant’s decision not to testify at his own trial is constitutionally indistinguishable from his silence in a precustody context”). I am afraid that Judge Sentelle has misread Jenkins just as Justice Stevens feared. Jenkins did limit itself to impeachment, but only because it was explaining the contours of Doyle. Thus, the Court relied on the following rationale:
[N]o governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case.
447 U.S. at 240, 100 S.Ct. at 2130. Again, Judge Sentelle, whether speaking for himself or the majority, does not — nor indeed could he — explain how the reasoning in Jenkins would be any different in a situation in which a prosecutor attempts to use a defendant’s silence as probative of his or her guilt. We are simply left with the unpersuasive refer*396ence to the majority’s general rule, see Maj. Op. at 388, a. rule which floats free of both the Self-Incrimination and Due Process Clauses.
* * * *
The majority’s discussion of the prosecutor’s remarks concerning defense counsel, Maj. Op. at 390-91, apparently rests on a misunderstanding of the record. The prosecutor did not actually accuse defense counsel of being a professional arguer. who mucks up the judicial system. Although I very much doubt that even such an accusation could fall over the line, see United States v. Catlett, 97 F.3d 565, 572-73 (D.C.Cir.1996), what he in fact said was:
Remember at the beginning you took an oath that said that you will, in fact, render a verdict based solely on the evidence. And then we — I mean the judicial system, not anybody in the courtroom — we muck it up by allowing the professional arguers, including myself, to come in here and tell you what you should say, tell you what the evidence shows.... Your good judgment has gotten you where you are today. It is the good judgment that we want you to rely upon.
(Emphases added.)
Unless we are required to punish counsel for spreading calumnies about lawyers generally, see, e.g., Editorial, Hold the Humor Harmless, L.A. Daily News, July 7,1993, at N10 (commenting on the remarks of California Bar Association President, Harvey Safer-stein, who likened lawyer-bashing jokes to hate-speech), I do not see how it can be even suggested that this statement is improper.6
‡ ‡
The majority’s opinion, redolent of the “Warren Court,” is clothed, presumably, in non-reviewability, since the use of silence is deemed harmless. That is most unfortunate, but I rather doubt this holding, when followed as it must be in other cases, will be long-lived.
. It may well be that an "argument” that a defendant’s silence occurred post-arrest can, for purposes of appellate review, be thought to implicitly include the claim that the events occurred post-custody.
. The custody determination, in any event, does not call for the trial court’s superior fact-finding capacity, cf. Thompson v. Keohane, - U.S. -, -, 116 S.Ct. 457, 465-67, 133 L.Ed.2d 383 (1995), and certainly, as a legal question, it does not rest upon the effect on contemporaneous listeners, whatever relevance that notion has to this case, see Maj. Op. at 389 n.6, especially when the "discussion” took place at the bench, not in front of the jury.
. Evidentiary rules, of course, may limit the use of silence via prohibitions against hearsay and unfairly prejudicial information, see, e.g., United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961), but the constitutional bar against using silence suggested by the majority simply does not exist.
. It is possible to imagine a scenario, even in the absence of Miranda warnings, in which the circumstances may raise legitimate due process concerns, such as the use of silence which follows 15 hours of uninterrupted, purposefully inflammatory questioning in a station house. Whatever the constitutional disposition of that type of scenario, the facts of this case do not suggest the same concerns.
. Weir is but one of a series of cases which limit Doyle, quite strictly, to the specific facts therein: the use of post-arrest silence induced by Miranda warnings or some government assurance that silence would not be used against a defendant. See, e.g., Roberts v. United States, 445 U.S. 552, 561, 100 S.Ct. 1358, 1364-65, 63 L.Ed.2d 622 (1980); Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980). The Court again emphasized the limits of Doyle in Jenkins v. Anderson, 447 U.S. 231, 239-40, 100 S.Ct. 2124, 2130, 65 L.Ed.2d 86 (1980), holding it inapplicable to situations involving pre-arrest silence.
. I also believe the majority concedes too much to appellant’s argument that the trial court should have severed his case from his co-defendant, Armstead. The nature of a motion for severance makes it unamenable to “joint” objection no matter what arguments the motion contains. Compare Maj. Op. at 383-84. Co-defendants in a criminal trial often have divergent interests from one another. I would, therefore, require each defendant to make his own motion for severance to the trial court.