S.D.N.Y.: Basic questions about def’s cell phone as a prelude to asking for consent to search it is an exception to Miranda

Basic questions about defendant’s cell phone as a prelude to asking for consent to search it is an exception to Miranda. United States v. Okparaeke, 2018 U.S. Dist. LEXIS 188191 (S.D. N.Y. Nov. 3, 2018):

As the video-recording of that conversation makes clear, the Defendant initially indicated his willingness to consent to the search, and information about the phone make and model was given in the course of completing the consent-to-search form, which Ruggieri was reading aloud as he completed the form. See GX-1T at 30-31; see also GX-1T at 32-33.

This kind of questioning falls under the narrow “consent to search” exception to Miranda that numerous courts have recognized. U.S. v. Faruolo, 506 F.2d 490, 495 (1974) (“There is no possible violation of fifth amendment rights since the consent to search is not ‘evidence of a testimonial or communicative nature'”) (quoting Schmerber v. California, 384 U.S. 757,761, 86 S.Ct. 1826, 1830 (1966); Flynn v. James, 513 Fed. Appx. 37, 39 (2d. Cir. 2013) (summary order) (“Flynn’s invocation of his right to counsel, however, has no bearing on the validity of his consent because a request for consent to search is not an interrogation within the meaning of Miranda v. Arizona”) (internal citations omitted); United States v. Rodriguez-Garcia, 983 F.2d 1563, 1568 (10th Cir. 1993) (“Every federal circuit court which has addressed the Miranda issue has reached the conclusion that a consent to search is not an incriminating statement”); United States v. St. Claire, No. S1 04 Cr. 147 (LTS), 2005 WL 736236 at *4 (S.D. N.Y. March 30, 2005)(mem. op)(officers did not violate defendant’s right to counsel by requesting to search after the defendant’s invocation “[b]ecause a request for consent to search does not constitute an interrogation within the meaning of Miranda insofar as it does not seek to elicit a self-incriminating statement,”); cf. also United States v. Gilkeson, 431 F. Supp. 2d. 270, 281-282 (N.D.N.Y. 2006)(Most consent to search cases do not implicate the Fifth Amendment where the request for consent is based on information obtained in compliance with Miranda). In the case at bar, the Defendant’s statement identifying the make and model of his cellphone number, the Samsung Galaxy 5, during a routine request for a consent to search, does not fall under the umbrella of Miranda.