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W.D.Mo.: Defendant found not in custody during a consent search of his car when he was asked where the drugs were

By John Wesley Hall, Jr.

Defendant was found to have consented to a search of his car. He was pulled over near an apartment complex, and he was left sitting on a bench with his dog, unrestrained. After paraphernalia was found in the front seat, the officer walked over to defendant and asked him, without Mirandizing him, whether there were any other drugs in the car, and defendant told him. The court concludes that defendant was not in custody for Miranda purposes when that question was asked. United States v. Hocking, 2011 U.S. Dist. LEXIS 29168 (W.D. Mo. February 17, 2011): Although Hocking was not specifically told that he was not under arrest, Trooper Rudstrom did not insinuate that Hocking was under arrest either. Hocking was unrestrained, he was allowed to retrieve his dog from the vehicle, and was sitting on a bench out in the public...continue to full post

Full post as published by Fourth Amendment on March 24, 2011 (boomark / email).