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Invoking Miranda rights precludes asking for consent

By John Wesley Hall, Jr.

When the defendant invokes his right to silence and counsel under Miranda, the officers cannot continue to ask for consent. Officers executed a warrant, arrested defendant, and then found nothing, so they asked for consent to search his truck then an outbuilding not mentioned in the warrant. Defendant's consents here violated Miranda. United States v. Oquendo-Cedeno, 2008 U.S. Dist. LEXIS 5409 (D. P.R. January 23, 2008): There is no justification for the post-Miranda questioning of defendant and resulting search of his property. Upon failing to find anything other than a magazine and bullets in defendant's residence and vehicle, the agents were required to obtain a further search warrant to search the shack, given the Miranda invocation. It is evident that the sole purpose of the agents in focusing on the property was to continue looking for evidence which implicated defendant in criminal activity...continue to full post

Full post as published by Fourth Amendment on January 28, 2008 (boomark / email).