In the seminal case of Miranda v. Arizona (1966) 384 U.S. 436, the United States Supreme Court held that before a person is subjected to custodial interrogation, police must warn the person "that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently." (Id. at p. 444.) The purpose of the Miranda warnings is to reduce the risk of coerced confessions and safeguard the Fifth Amendment right against self-incrimination. (See Chavez v. Martinez (2003) 538 U.S. 760, 790.) In order to facilitate our analysis of defendant's Fifth Amendment claim, the Court first considers when defendant was taken into custody, or restrained in a manner that constitutes the functional equivalent of a formal arrest, for Miranda purposes. Whether an individual is in custody for Miranda purposes is "resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? The totality of the circumstances surrounding an incident must be considered as a whole. Although no one factor is controlling, the following circumstances should be considered: '(1) Whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of questioning.' " (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.) A custody determination "presents a mixed question of law and fact. We apply a deferential substantial evidence standard to the trial court's factual findings, but independently determine whether the interrogation was custodial. " (Pilster, supra, 138 Cal.App.4th at p. 1403.) In Berkemer v. McCarty (1984) 468 U.S. 420, the Supreme Court addressed the issue of whether "the roadside questioning of a motorist detained pursuant to a traffic stop constitutes custodial interrogation for the purposes of the doctrine enunciated in Miranda." (Id. at p. 423.) The Supreme Court acknowledged "that a traffic stop significantly curtails the 'freedom of action' of the driver and the passengers, if any, of the detained vehicle," and also that "few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so." (Berkemer, supra, 468 U.S. at p. 436.) However, the Court stated that an "ordinary traffic stop" rarely rises to the functional equivalent of a formal arrest because it is "presumptively temporary and brief" compared to "stationhouse interrogation, which frequently is prolonged." (Berkemer, supra, 468 U.S. at pp. 437-438.) Moreover, "circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police" because of the exposure to public view normally attendant in the situation and the fewer police normally involved; "in short, the atmosphere surrounding an ordinary traffic stop is substantially less 'police dominated' than that surrounding the kinds of interrogation at issue in Miranda itself ... ." (Id. at pp. 438-439.) Accordingly, the court concluded that persons temporarily detained pursuant to an ordinary traffic stop "are not 'in custody' for the purposes of Miranda." (Berkemer, supra, 468 U.S. at p. 440.) Nevertheless, the Supreme Court cautioned that "if a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. " (Berkemer, supra, 468 U.S. at p. 440.) Turning to the case before it, the court noted that a short period of time elapsed between the stop and the arrest, and at "no point during that interval was respondent (motorist) informed that his detention would not be temporary." (Id. at pp. 441-442.) In addition, the record established that "a single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists." Thus, the court concluded that "treatment of this sort cannot be fairly characterized as the functional equivalent of formal arrest." (Id. at p. 442.) In Griffin v. California (1965) 380 U.S. 609, the Supreme Court held that the Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Id. at p. 615.) In reaching this holding, the Supreme Court observed that "comment on the refusal to testify is a remnant of the 'inquisitorial system of criminal justice which the Fifth Amendment outlaws. It is a penalty imposed ... for exercising a constitutional privilege and ... cuts down on the privilege by making its assertion costly." (Id. at p. 614.) Thereafter, in Doyle v. Ohio (1976) 426 U.S. 610, the Supreme Court focused its attention on the issue of whether the State could "impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest." (Id. at p. 611.) The court acknowledged "the importance of cross-examination," and expressly noted that the state did not seek to use defendant's silence "as evidence of guilt." (Id. at p. 617.) Nevertheless the court concluded "the Miranda decision compels rejection of the State's position." (Ibid.) Referencing Miranda, the court stated: "The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, , require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." (Doyle, supra, 426 U.S. at pp. 617-618.) Accordingly, the Supreme Court held that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." (Id. at p. 619.) Subsequently, in Jenkins v. Anderson (1980) 447 U.S. 231, the Supreme Court clarified the scope of its holding in Doyle. In Jenkins, the defendant was charged with murder after he allegedly stabbed and killed a man. The defendant surrendered himself to police two weeks after the stabbing. At trial, the defendant testified that he stabbed the victim in self-defense. On cross-examination, the prosecution questioned the defendant regarding his failure to offer his self-defense justification prior to turning himself in to police authorities. (Id. at p. 233.) During closing argument, the prosecution reminded the jury the defendant waited two weeks before reporting the crime. (Id. at p. 234.) Before the Supreme Court, the defendant contended the prosecutor's actions, in commenting on his prearrest silence, violated his Fifth Amendment right to remain silent. The court rejected the defendant's contention. First, the court observed that the prosecutor's actions did not impermissibly burden the defendant's Fifth Amendment right, noting the defendant waived " 'the immunity from giving testimony ... by offering himself as a witness.' " (Id. at p. 235.) Second, having chosen to testify, the defendant was " 'under an obligation to speak truthfully and accurately.' " (Id. at pp. 237-238.) Third, the Court considered "the legitimacy of the challenged government practice"--the attempted impeachment of a the defendant on cross-examination--noting that once a defendant decides to testify, the " 'regard for the function of courts of justice to ascertain the truth becomes relevant ... .' Thus, impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truthfinding function of the criminal trial." (Id. at p. 238.) Accordingly, the court concluded that when a criminal defendant opts to testify, the Fifth Amendment does not bar use of prearrest silence to impeach the defendant's credibility. (447 U.S. at p. 238.) In Fletcher v. Weir (1982) 455 U.S. 603, the Supreme Court rejected a habeas corpus petitioner's claim that he was denied due process of law under the Fourteenth Amendment when the prosecutor used his postarrest silence to impeach his testimony at trial. (455 U.S. at p. 603.) In Fletcher, the petitioner allegedly stabbed a man during a brawl. As in Jenkins, the defendant was charged with murder and at trial his defense was that he acted in self-defense. Fletcher testified at trial. On cross-examination, the prosecutor inquired about Fletcher's failure to inform the police, at the time of his arrest, that he acted in self-defense. (Id. at p. 604.) The Fletcher court stated that Doyle was inapposite on the question before it because in Doyle "the government had induced silence by implicitly assuring the defendant via the Miranda warnings that his silence would not be used against him." (Id. at p. 606.) "In the absence of the sort of affirmative assurances embodied in the Miranda warnings," the court concluded, "we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand." (Id. at p. 607.) Federal circuit courts addressing the issue of whether the prosecution may elicit evidence of and comment on a defendant's postarrest, pre-Miranda silence as substantive evidence of guilt have drawn on one or more of the above cited Supreme Court opinions in arriving at conflicting conclusions regarding the admissibility of this evidence. The District of Columbia Circuit addressed the issue in U.S. v. Moore (D.C. Cir. 1997) 322 U.S. App.D.C. 334 104 F.3d 377 (Moore). In Moore, the defendant remained silent after police stopped the vehicle he was driving (the defendant was also the registered owner of the vehicle), searched the vehicle and found weapons and drugs in the engine compartment. At trial, the prosecutor elicited evidence of the defendant's silence in the face of the discovery of the drugs and weapons via the testimony of the arresting officer. Then, during closing summation, the prosecutor argued that if the defendant did not know " 'the stuff was underneath the hood, ... he would at least have said, "Well, I didn't know it was there." ' " (Moore, supra, 104 F.3d at p. 384.) Following the defendant's conviction, the Moore court addressed the defendant's claim the prosecutor improperly commented on his postarrest, pre-Miranda silence. The court stated that "although in the present case, interrogation per se had not begun, neither Miranda nor any other case suggests that a defendant's protected right to remain silent attaches only upon the commencement of questioning as opposed to custody. While a defendant who chooses to volunteer an unsolicited admission or statement to police before questioning may be held to have waived the protection of that right, the defendant who stands silent must be treated as having asserted it. Prosecutorial comment ... on a defendant's post-custodial silence unduly burdens that defendant's Fifth Amendment right to remain silent at trial, as it calls a jury's further attention to the fact that he has not arisen to remove whatever taint the pretrial but post-custodial silence may have spread. We therefore think it evident that custody and not interrogation is the triggering mechanism for the right of pretrial silence under Miranda. Any other holding would create an incentive for arresting officers to delay interrogation in order to create an intervening 'silence' that could then be used against the defendant." (Moore, supra, 104 F.3d at p. 385.) Similarly, in U.S. v. Velarde-Gomez (9th Cir. 2001) 269 F.3d 1023, the Ninth Circuit concluded the admission of evidence of the defendant's postarrest, pre-Miranda silence violated his Fifth Amendment privilege against self-incrimination. In Velarde-Gomez, the defendant was convicted of importation of marijuana and possession of marijuana with intent to distribute after 63 pounds of marijuana were found in the gas tank of the vehicle the defendant was driving when he attempted to cross the border from Mexico into the United States. At trial, the arresting United States Customs agent testified as to the defendant's nonresponsiveness after the defendant was informed the drugs had been discovered in his vehicle: According to the arresting agent, the defendant " 'just sat there' " and said nothing. (269 F.3d at p. 1027.) Addressing the defendant's claim that admission of evidence of his postarrest, pre-Miranda silence violated his Fifth Amendment privilege against self-incrimination, the Velarde-Gomez court noted that whereas "... Miranda warnings are required to reduce the risk that suspects subject to the inherent coercion of custodial interrogation will be compelled to incriminate themselves ... ," the warnings themselves are merely " 'a prophylactic means of safeguarding Fifth Amendment rights' --they are not the genesis of those rights." (Velarde-Gomez, supra, 269 F.3d at pp. 1028-1029, quoting Doyle, supra, 426 U.S. at p. 617.) Therefore, the court reasoned, "once the government places an individual in custody, that individual has a right to remain silent in the face of government questioning, regardless of whether the Miranda warnings are given." (Velarde-Gomez, at p. 1029.) The Velarde-Gomez court continued, "the government may not burden that right by commenting on the defendant's post-arrest silence at trial." (Ibid., citing Griffin v. California, supra, 380 U.S. at p. 614 " 'comment on the refusal to testify is a remnant of the "inquisitorial system of criminal justice," which the Fifth Amendment outlaws' " and Miranda v. Arizona, supra, 384 U.S. at p. 468, fn. 37 " 'The prosecution may not, therefore, use at trial the fact that the defendant stood mute or claimed his privilege in the face of accusation.' ".) In contrast to the decisions of the District of Columbia and Ninth Circuits, the Eighth Circuit has sanctioned the government's use in its case-in-chief of a defendant's postarrest, pre-Miranda silence as evidence of guilt, finding the admission of such evidence does not violate a defendant's Fifth Amendment rights. (U.S. v. Frazier (8th Cir. 2005) 408 F.3d 1102, 1111.) In Frazier, police stopped a U-Haul truck driven by the defendant. After the defendant gave police permission to search the vehicle, police found boxes filled with pseudoephedrine pills behind two mattresses in the rear of the truck. (Id. at pp. 1106-1107.) At trial, the arresting officer testified that the defendant did not say anything when officers told him he was being arrested for possession of a controlled substance. (Id. at p. 1107.) Following his jury trial conviction, the defendant argued that testimony elicited by the government during its case-in-chief concerning the defendant's postarrest, pre-Miranda silence violated his Fifth Amendment right against self-incrimination. (408 F.3d at p. 1109.) After reviewing several of the United States Supreme Court authorities that we discussed above, the Frazier court focused on the concurring opinion by Justice Stevens in Jenkins, in which Justice Stevens opined that "the 'privilege against compulsory self-incrimination is simply irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak.' " (Frazier, supra, 408 F.3d at p. 1110, quoting Jenkins, supra, 447 U.S. at p. 241 (conc. opn. of Stevens, J.).) Based on Justice Stevens's concurring opinion in Jenkins, the Frazier court reasoned that the crux of the issue before it was "to determine at what point a defendant is under 'official compulsion to speak' because silence in the face of such compulsion constitutes a 'statement' for purposes of a Fifth Amendment inquiry." (Frazier, at p. 1110.) The court concluded that the defendant in the case at bar was under no compulsion to speak at the time he maintained his silence. The court observed that although the defendant was under arrest, "there was no governmental action at that point inducing his silence. ... It is not as if defendant refused to answer questions in the face of interrogation." (Id. at p. 1111.) Where a defendant is under no compulsion to speak, the court concluded, the use of postarrest, pre-Miranda silence during the government's case-in-chief does not constitute "an impermissible use of an accused's coerced incriminating 'statement.' " (Id. at pp. 1110-1111.) Having considered the federal circuit court decisions directly addressing this significant issue, as well as United States Supreme Court authority addressing more generally the protections afforded defendants under the Fifth Amendment privilege, we now join the federal circuits holding that the right of pretrial silence under Miranda is triggered by the inherently coercive circumstances attendant to a de facto arrest and therefore the government may not introduce evidence in its case-in-chief of a defendant's silence after arrest, but before Miranda warnings are administered, as substantive evidence of the defendant's guilt. (See, e.g., Moore, supra, 104 F.3d at p. 385 "custody and not interrogation is the triggering mechanism for the right of pretrial silence under Miranda".)