In United States v. Long, 284 U.S. App. D.C. 405, 905 F.2d 1572 (D.C. Cir. 1990), a warranted search of a premises for narcotics was in process when the police answered a telephone call.
The caller wanted to know whether Keith (the defendant) "still had any stuff." When the officer sought clarification, the caller explained that she was asking about "a fifty."
The defendant Long objected to the admissibility of the contents of the call on the ground that it was an implied assertion that the defendant had narcotics for sale.
The Circuit Court of Appeals for the District of Columbia rejected the challenge on the basis that it was not an assertion.
Although the rule does not define "assertion," the accompanying advisory committee note stresses that "nothing is an assertion unless intended to be one."
The caller's words, thus, cannot be characterized as an "assertion," even an implied one, unless the caller intended to make such an "assertion." ... The crucial distinction under rule 801 is between intentional and unintentional messages, regardless of whether they are express or implied. It is difficult to imagine any question or for that matter any act, that does not in some way convey an implicit message. 905 F.2d at 1579-80.
The D.C. Circuit made it very clear that the mere fact that the call could serve as the predicate for a damaging inference does not make it an intentional assertion.
"With our inquiry focused on the intent of the caller, we have little trouble disposing of Long's theory about implied assertions .... The caller may indeed have conveyed messages about Long through her questions, but any such messages were merely incidental and not intentional. Because the caller's questions were nonassertive, they fall outside the scope of the hearsay rule, and the trial judge did not err in admitting the testimony concerning the questions." Id. at 1580.