Invoking Miranda rights precludes asking for consent

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, 531 F. Supp. 2d 224 (D. P.R. 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. More so, the question posed by the agents to defendant was not routine gathering of information for background or booking purposes, which is excepted from Miranda. See United States v. McLean, 409 F.3d 492, 498 (1st. Cir. 2005). Here, the question about the shack was “reasonably likely to elicit an incriminating response”. United States v. Downing, 665 F.2d 404, 407 (1st Cir. 1981) (defendant’s statement of ownership of airplane and fruits of search thereof suppressed where defendant had invoked Miranda and airplane was not within searched property).

Issuing magistrate does not have to see the pictures to find probable cause in a child pornography investigation. United States v. Gatherum, 2008 U.S. Dist. LEXIS 5268 (S.D. W.Va. January 23, 2008):

Although copies of the pictures which Trooper Eldridge observed were not attached to the warrant application, a judge may properly issue a warrant based on factual descriptions of an image. See New York v. P.J. Video, Inc., 475 U.S. 868, 874 n. 5 (1986) (“[W]e have never held that a magistrate must personally view allegedly obscene films prior to issuing a warrant authorizing their seizure. On the contrary, we think that a reasonably specific affidavit describing the content of a film generally provides an adequate basis for the magistrate to determine whether there is probable cause ….”); ….

A state court action in probate had preclusive effect in a federal § 1983 case where the issue there shoud have been raised in the state proceeding. Kawecki v. County of Macomb, 2008 U.S. Dist. LEXIS 5142 (E.D. Mich. January 24, 2008).*