Signing a Consent to Search Form After Counsel Request

In State v. Houser (1992) 241 Neb. 525 490 N.W.2d 168, the court addressed "whether requesting defendant to execute a consent-to-search form after defendant has requested counsel constituted further interrogation in violation of defendant's rights." (Id. at pp. 175-177.) The court determined that "requests made to a defendant by one seeking consent to search the defendant's residence do not constitute further questioning, or the functional equivalent of further questioning, after counsel has been requested by the defendant." (Id. at p. 176.) The court based its conclusion on the fact that consent to search is not testimonial or communicative in nature, even if the consent leads to the discovery of incriminating evidence. (Ibid.) The court also relied on the reasoning of the United States Supreme Court in Rhode Island v. Innis (1980) 446 U.S. 291, 300-301 100 S. Ct. 1682, 1689-1690, 64 L. Ed. 2d 297, in which the court stated that "interrogation" refers not only to express questioning, but "also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Id. at p. 301 100 S. Ct. at p. 1690.) The court in Hauser found that seeking consent to search has nothing to do with pursuing an interrogation designed to have a suspect make statements contrary to his interest. (State v. Houser, supra, 490 N.W.2d at p. 176.) The court thus found that no Miranda violation occurred when the police obtained consent to search from a suspect after the suspect had requested an attorney. (Ibid.)