Consent was validly given after invocation of right to counsel

Defendant’s computer was seized on his wife’s consent and defendant was later arrested. The computer, however, had not been searched. The defendant was Mirandized on his arrest, and he invoked his right to counsel. Shortly thereafter, the police asked for consent to search his computer and told him that he had a right to refuse. He consented. The consent after Miranda warnings and invoking the right to counsel was still valid. State v. Norkeveck, 214 Ore. App. 553, 168 P.3d 265 (2007):

At trial, defendant’s principal argument on the motion was that his consent was not voluntary, because he was in custody and had invoked his right to counsel, and the request for consent violated his right to counsel. In State v. Baumeister, 80 Ore. App. 626, 628-29, 723 P.2d 1049, rev den, 302 Ore. 299 (1986), we rejected the argument that an officer was foreclosed from asking an accused for consent to search after the invocation of the right to counsel or to remain silent. See also State v. Bradbury, 80 Ore. App. 613, 615, 723 P.2d 1051, rev den, 302 Ore. 342 (1986).

On appeal, defendant accepts that body of law, but argues that his custody status, as well as his prior invocation of his right to counsel, are important factors in judging the voluntariness of his consent. Even considering those two identified facts as part of the totality of circumstances bearing on the issue, we conclude that the trial court’s implicit finding that the consent was voluntary is supported by the evidence. Defendant’s consent to seize and search his computer was valid.

Police were called to a domestic disturbance where defendant’s father believed his son was high and wanted him out. The defendant was arrested and removed, and the father consented to a search of the house which was otherwise shown to be valid. The defendant could not show that he was removed merely to avoid his objection because he was arrested for legitimate reasons. His argument that he would have objected if still there was unavailing because people do consent even when it is not in their best interest to do so. State v. Chilson, 38 Kan. App. 2d 338, 165 P.3d 304 (2007):

The facts of this case fall somewhere along the continuum of reasonableness established by Matlock and Randolph. Here, the co-occupant defendant was not absent, as was the defendant in Matlock. But, unlike the co-occupant defendant in Randolph, he did not stand at the door and object to the search. However, the district court did not find the officers removed the defendant “for the sake of avoiding a possible objection”; rather, they removed him pursuant to protocol. Nor did the evidence indicate the defendant voiced an objection despite the officers’ failure to inquire. Moreover, if the defendant had been asked for his consent to search, it is not a foregone conclusion that he would have refused: suspects often consent, albeit imprudently. See Randolph, 547 U.S. at 122; ….

In determining where this case falls on the continuum, we find guidance in recent post-Randolph cases from other jurisdictions with similar factual circumstances.

For instance, in United States v. DiModica, 468 F.3d 495, 497-98 (7th Cir. 2006), a wife, who was not present at the home, reported a domestic assault and told police her husband, DiModica, was a felon who possessed guns and drugs. She gave police a key to their house and consent to search. Armed with an arrest warrant, officers knocked on the door, confirmed DiModica’s identity, arrested him, and removed him from the home. They did not ask his permission to search. The wife met officers at the home afterward, and police discovered items that formed the basis of charges unrelated to the domestic abuse. DiModica argued that had he not been arrested and removed from the scene, he would have refused to allow the police to search his home. The Seventh Circuit distinguished the case from Randolph, noting that unlike the defendant and his wife in Randolph, DiModica and his wife were not standing together at the doorway, one consenting to the search while the other refused. The officers did not ask DiModica for permission to search, and DiModica did not advise the officers they could not do so.

The Seventh Circuit found Dimodica’s case was not materially distinguishable from Matlock. The officers did not remove DiModica to avoid his objection; they legally arrested DiModica based on probable cause he had committed domestic abuse. Once DiModica was arrested and removed from the scene, the wife’s consent alone was valid and permitted the officers to legally search the residence.