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Search & Seizure – Vehicle Search – Miranda Warnings

Prosecutors cannot use defendant’s statement that he owned a white pickup truck parked nearby in his drug prosecution because the detectives did not give defendant Miranda warnings, but the Norfolk U.S. District Court will wait until trial to decide whether to admit defendant’s refusal to consent to a search of the truck.

In the present case, the detective’s question regarding whether defendant had a vehicle qualifies as an interrogation for Miranda purposes. It was an express question that was reasonably likely to elicit an incriminating response. Based on the two detectives’ testimony, Detective Montalvo knew in advance of the sting that defendant would likely be driving a white pickup truck. He communicated that information to Detective Marcus. As Marcus testified, the purpose of his question was to have defendant himself establish that the white pickup truck belonged to him. A statement by defendant that he owned the vehicle could be used against defendant at trial if incriminating evidence was found in the truck. Since the detective’s next question of defendant was whether he could search the truck, the detective was clearly interested in the truck for investigative purposes.

Based on the circumstances of the questioning here, defendant likely considered himself to be under interrogation. He declined to give consent to search the truck and asked the detective if he had a warrant. This is hardly the response of a man who believes he is engaging in an amicable discussion with law enforcement. The detective’s question regarding ownership of the vehicle amounts to an interrogation for Miranda purposes. Having obtained defendant’s statement prior to reading him any Miranda warnings, the statement elicited by the detective’s question must be suppressed unless there is an applicable exception to Miranda.

Here, the “booking” exception does not apply, because asking defendant whether or not he had a vehicle does not fall within the routine booking exception, which is for very limited administrative purposes. There is no showing the detectives were actually booking defendant when they asked him whether he had a vehicle. The court also does not apply a “general on-the-scene” questioning exception to Miranda, as the question about ownership of the vehicle does not fall within this exception. Nor does the “public safety” exception apply. Defendant’s statement that the white pickup truck parked in front of the building belonged to him must be suppressed.

If the court were now to allow the introduction of defendant’s subsequent refusal of consent to search the truck to be introduced as an implicit admission of ownership of the vehicle, it would render the suppression of the previous statement moot. If the government was allowed to admit a suspect’s refusal of consent in order to show consciousness of guilt, a defendant’s consent could never be truly voluntary. Once a defendant invokes his right to refuse consent, the prosecution may not seek to draw an adverse inference from such invocation unless the defendant uses such protection as a sword, rather than a shield. Because the court does not at this point know how the consent issue will arise at trial, a ruling on the admissibility of defendant’s refusal to consent to a search of the pickup truck must await trial.

U.S. v. Guess (Davis, J.) No. 1:20cr140, Dec. 3, 2010; USDC at Norfolk, Va.; Keith L. Kimball for defendant; Kevin M. Comstock, Cameron M. Rountree for government. VLW 010-3-654, 39 pp.

VLW 010-3-654

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