The right to advice of counsel under the Fifth Amendment has to be read together with the Fourth Amendment and a request for consent. Other states do not, but New Jersey does. Defendant was asked for consent inside his own house. State v. Amang, 2025 N.J. Super. LEXIS 24 (Mar. 31, 2025):
Defendant’s contention raises a question of first impression under New Jersey law, requiring us to consider the interplay between the right against self-incrimination, the right to privacy in one’s home and effects, and the right to the assistance of counsel. In considering the synergy of these distinctly enumerated constitutional rights, we are especially mindful that New Jersey law affords heightened protections with respect to each of them. As we explain, while our Supreme Court views federal constitutional precedent as a “polestar,” it has on many occasions charted its own course when interpreting and applying the protections afforded to criminal suspects. See State v. Hemepele, 120 N.J. 182, 196 (1987).
Although some courts in other jurisdictions that have addressed this situation stress that Miranda and Fifth Amendment rules must be kept separate and distinct from Fourth Amendment principles, see Section III, we do not view the various rights accorded to criminal suspects as being kept in separate silos meted out one at a time and in isolation from each other. Instead, we view these rights as threads that form an intricately-woven tapestry—one that comprehensively protects persons who are facing an ongoing criminal investigation, and especially those who find themselves in the inherently coercive environment of police custody. Although each thread may be distinct in its origins and properties, together they form an integrated fabric so that pulling out one thread can cause the tapestry to unravel.
The right to confer with an attorney before deciding whether to waive other constitutional rights consult with counsel during the Miranda waiver colloquy, defendant signaled that he did not want to cooperate with police without first conferring with an attorney. He thus “sought refuge in his constitutionally-guaranteed right to deal with [] police only through counsel.” State v. Hartley, 103 N.J. 252, 273 (1986). We are unpersuaded that refuge provides sanctuary only from police efforts to secure inculpatory evidence in the form of testimonial admissions, not physical evidence, as some courts outside this jurisdiction have reasoned. Nor are we convinced that when defendant expressed his desire to speak with an attorney, he meant only to protect his legal interests with respect to the former type of evidence. We are skeptical that lay persons in police custody fully understand the legal distinction between testimonial and non-testimonial responses. Saying “yes” to the request to search may not have conveyed an inculpatory factual admission but nonetheless led directly to the seizure of inculpatory evidence.
Relatedly, we are not swayed by the argument that a consent search request should be permitted in these circumstances because it is not the functional equivalent of interrogation. A consent search is an investigative tool used by police which, like custodial interrogation, is designed to bring into their possession evidence that can be used in court against the person giving consent. In this instance, the Consent to Search/Seize form (Consent form) presented to defendant expressly warned that “anything uncovered by the search can be used as evidence against me.” That homage to one of the Miranda warnings tells us that, for practical purposes, the consent request performs the same evidence-gathering function as an interrogation.
When viewed through the lens of the heightened protections accorded to suspects in custody under the New Jersey Constitution and our common law, we conclude the approach most consistent with our jurisprudential values is to establish a simple rule that provides clear guidance to police: when a person in custody asks to speak with an attorney, police should not thereafter request the arrestee to consent to a search when there has been no break in custody. We thus conclude the detective should not have re-approached defendant while he was still in custody to ask for consent. Doing so rendered the consent presumptively involuntary and therefore subject to suppression.
That conclusion does not end our inquiry, however, because there are exceptions to the general rule that evidence seized following a constitutional violation must be suppressed. In this case, the trial court properly found that the State met its burden of proving the elements of the inevitable discovery exception by clear and convincing evidence. We therefore affirm defendant’s weapons convictions.
