Consent to Search after Invoking Miranda Rights Is Not Itself a Miranda Violation
Last week, the U.S. Court of Appeals for the Sixth Circuit held that a defendant’s consent to a search, obtained after invoking her right to remain silent, is not testimonial evidence that can be suppressed as a Miranda violation.
In March 26, 2014, Michigan State Trooper Craig Ziecina was on patrol on Interstate Highway I-75 and observed a minivan driven by Sarah Calvetti abruptly slow down and change lanes without the use of a signal. Trooper Ziecina pulled onto the highway and proceeded to follow the minivan. After three miles, Trooper Ziecina activated his patrol lights.
Trooper Ziecina asked Calvetti and her passenger, Demas Cortez, for their driver’s licenses. Because Calvetti did not have her license with her, she accompanied Trooper Ziecina to his patrol car so he could look up her information. While in the patrol car, Trooper Ziecina asked Calevitti about her travel plans. Calvetti informed Trooper Ziecina that she was moving Cortez from Texas to Michigan and had been driving for twenty-four hours. She also stated she was responsible for the vehicle and all of its contents. Trooper Ziecina noticed that the minivan was not registered to Calvetti and received permission from Calvetti to search the minivan.
Michigan State Officer Jeffrey Schrieber arrived as back-up with a drug-sniffing canine. The officers conducted a canine sniff of the vehicle, but the canine did not alert. Returning to the patrol car, Trooper Ziecina proceeded to ask Calvetti questions about her criminal history, to which she provided Trooper Ziecina answers to. Trooper Ziecina noticed Calvetti behaving nervously at this point.
After about thirty-five minutes, the officers moved Cortez to the patrol car while they conducted a search of the vehicle. The patrol car’s audio recording system recorded a conversation between Calvetti and Cortez while in the car. Calvetti stated to Cortez that she was “not doing this anymore,” and told Cortez he would have to take the blame. Calvetti also spoke to a co-conspirator on Cortez’s phone, alerting the individual that the police were searching the minivan.
During the search of the minivan, Trooper Ziecina noticed “discrepancies” in the minivan’s design and inserted a scope into an opening in the floor, which revealed areas where the floor was welded. He then removed a portion of the floor and reinserted the scope, and discovering five kilogram-sized packages. Upon further investigation, the officers found sixteen kilograms of cocaine. The officers arrested Cortez and Calvetti after about one hour and thirteen minutes.
Cortez and Calvetti were provided their Miranda rights. While Cortez spoke with agents from the DEA about the offenses, Calvetti stated that she did not want to answer any questions. Calvetti continued to be questioned by the agents. The agents then requested a search of Calvetti’s house in Dearborn Heights to which Calvetti consented to. The search uncovered drug packing materials similar to those used to wrap the cocaine found in the minivan.
A grand jury indicted Calvetti and Cortez each on two counts – conspiracy to possess with intent to distribute, and possession with intent to distribute. In district court, Calvetti moved to suppress her statements made to the DEA agents and the fruits of the search of her Dearborn Heights residence on the basis that the agents violated her Miranda rights. The district court ruled that Calvetti implicitly waived her right to remain silent and denied her motion. Calvetti and Cortez then filed a joint motion to suppress the cocaine in the minivan arguing that the officers unconstitutionally prolonged the stop without reasonable suspicion. The district court denied this motion as well, finding the officers had probable cause to stop the vehicle and the officers had reasonable suspicion of criminal activity to prolong the stop. A jury convicted the defendants on all counts. On appeal, Calvetti and Cortez challenged the denials of their motions to suppress.
Calvetti first contended that her statements to the DEA agents and consent to search her residence were obtained in violation of her Fifth Amendment rights. Under Miranda, if a defendant invokes her right to remain silent at any time, questioning must cease. Here, the court of appeals found that Calvetti clearly and unambiguously invoked her right to remain silent. The court of appeals therefore found that the district court erred in ruling that Calvetti waived her right to remain silent by responding to the improper questioning. However, the court also found that no statement was used at trial.
Calvetti also argued that the evidence found at her residence should have been suppressed because the Miranda violation tainted her consent to search it. The government countered that a consent to search falls outside the scope of Miranda’s protections. The court of appeals agreed with the government, finding that consent is not evidence of a “testimonial or communicative nature.” The majority of the court’s sister circuits have similarly held that consent to a search is not an incriminating statement. Despite Calvetti’s insistence that other courts have held that a consent to a search is a testimonial action that could reveal self-incriminating information, the court of appeals refused to adhere to this approach and found that the violation of Calvetti’s Fifth Amendment right to remain silent provided no basis for suppressing the evidence found at her Dearborn Heights home.
Defendants jointly challenged the district court’s denial of their motions to suppress the evidence seized from the minivan, arguing that the officers lacked reasonable suspicion to prolong the traffic stop. To determine whether reasonable suspicion exists, courts consider the totality of the circumstances. The court of appeals concluded that the officers had reasonable suspicion of criminal activity. Specifically, the court found Calvetti’s and Cortez’s “dubious travel plans” of driving twenty-four straight hours from Texas to Michigan with a small amount of luggage and drug-related criminal histories supported its finding of reasonable suspicion. Taken together with Calvetti’s nervousness, driving behavior, and inconsistent statements regarding the ownership of the minivan, the court of appeals agreed with the district court.
Read the full case: United States v. Calvetti
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.