CAN YOU ASKED FOR CONSENT TO SEARCH AFTER A SUSPECT HAS INVOKED THEIR RIGHT TO COUNSEL OR SILENCE?

By Captain Mike Schentrup – Owner/ Lead Trainer Advanced Police Concepts

The short answer is yes.  Your 5th amendment rights, which are contained in the standard Miranda Card, protect you from “incriminating statements or testimony.” They are in place to protect each one of us from coerced testimony.  I have cited the case below.

The courts have repeatedly ruled that when asking a suspect for consent to search their car or consent to obtain a cheek swab that is NOT seeking testimonial information.  Compelling someone by court order to give us the combination to their safe is also not considered “testimonial.”

All in all, while we are hoping a suspect does not invoke their rights when we are interviewing them, it does not prevent us from seeking consent to search/ swab after the invocation.

**U.S. Supreme Court

Doe v. United States, 487 U.S. 201 (1988)

Doe v. United States

No. 86-1753

487 U.S. 201

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