State v. McClamrock

2 Citing cases

  1. Smith v. State

    344 So. 2d 867 (Fla. Dist. Ct. App. 1977)   Cited 1 times

    This court, in Mobley v. State, 335 So.2d 880 (Fla. 4th DCA 1976), invalidated a consent given after the defendant was told a search warrant would be obtained the next day, anyway, if he refused to give consent. And, in State v. McClamrock, 295 So.2d 715 (Fla. 3rd DCA 1974) the Third District held that a consent was invalid when secured several hours after a defendant had requested an attorney. The Third District relied on the principle set out in Miranda v. Arizona that all interrogation must cease when the defendant asks for counsel. While recognizing that Miranda type warnings are not required in consent cases, the Third District noted:

  2. State v. White

    770 S.W.2d 357 (Mo. Ct. App. 1989)   Cited 7 times

    because consent is not an incriminating statement." State v. Little, 421 N.W.2d 172, 174[4] (Iowa Ct.App. 1988); United States v. Cherry, 794 F.2d 201, 208[3] (5th Cir. 1986) cert. denied, 479 U.S. 1056, 107 S.Ct. 932, 93 L.Ed.2d 983 (1987); Cody v. Solem, 755 F.2d 1323, 1330[7] (8th Cir. 1985) cert. denied, 474 U.S. 833, 106 S.Ct. 104, 88 L.Ed.2d 84 (1985); United States v. Ritter, 752 F.2d 435, 438[4] (9th Cir. 1985); Smith v. Wainwright, 581 F.2d 1149, 1152[3] (5th Cir. 1978); United States v. Lemon, 550 F.2d 467, 472[17] (9th Cir. 1977) (consent to search is not in itself testimonial or communicative in nature and is not the type of incriminating statement protected by the Fifth Amendment). Contra Kreijanovsky v. State, 706 P.2d 541, 546[14] (Okla.Crim.App. 1985) (once individual in custody requests attorney, officers must not seek further consensual admissions, including consent to search); People v. Johnson, 48 N.Y.2d 565, 569, 423 N.Y.S.2d 905, 907, 399 N.E.2d 936, 938 (1979); State v. McClamrock, 295 So.2d 715, 718 (Fla.Dist.Ct.App. 1974) (where defendants in custody requested but were denied the right to confer with an attorney, a consent to search cannot have been freely and voluntarily given). With full attention to the authorities previously listed, we find a Miranda violation in and of itself would not vitiate the consent to search if otherwise voluntarily given. The Miranda violation is one factor to be considered when determining whether the consent was in fact voluntary.