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Everett v. State11/24/2004
s of the second investigation as long as such communication does not constitute interrogation." 486 U.S. at 687. The police are not forbidden all contact with a defendant in custody; in fact, the Court expressly exempted from the definition of "interrogation" routine police contact "normally attendant to arrest and custody." Innis, 446 U.S. at 301, 302 (stating that "interrogation" extends only to police officers' words or actions they "should have known were reasonably likely to elicit an incriminating response").
Service of an arrest warrant is a routine police procedure. It does not require any response from a suspect; nor can it be reasonably expected to elicit an incriminating response. Thus, this action does not constitute interrogation, and we affirm the trial court's denial of the motion to suppress on this claim.
The officer's request for appellant's consent to provide DNA biological samples was the same search request the officers made of several other individuals whom they had not otherwise been able to eliminate from a list of potential suspects in this sexual battery/murder case. Such arequest for the consent to search is not reasonably likely to elicit an incriminating response.
The Supreme Court's cases support such a conclusion. In Schmerber, 384 U.S. at 761, a police officer ordered a doctor to take a blood sample from the injured Schmerber, whom the officer suspected of driving while intoxicated. The Court rejected the defendant's claim that use of this evidence violated his privilege against self-incrimination under the Fifth Amendment. Acknowledging that the evidence was compelled, the Court cited Justice Holmes's statement in Holt v. United States, 218 U.S. 245, 252-53 (1910), that the "prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." Schmerber, 384 U.S. at 763. The Court held "that the [Fifth Amendment] privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends." 384 U.S. at 761. The right to silence only applied to "testimonial or communicative" acts of a suspect.
This Court, too, has noted that he constitutional privilege against self-incrimination in history and principle seems to relate to protecting the accused from the process of extracting from his own lips against his will an admission of guilt. In the better-reasoned cases it does not extend to the exclusion of evidence of his body or of his mental condition as evidence when such evidence is relevant and material, even when such evidence is obtained by compulsion.
Parkin v. State, 238 So. 2d 817, 820 (Fla. 1970).
Accordingly, neither the service of the arrest warrant nor the request that Everett consent to providing physical evidence constitutes a word or action "that the police should know is reasonably likely to elicit an incriminating response from the suspect." Innis, 446 U.S. at 301.
We note that most courts that have considered this issue have held similarly. See, e.g., United States v. Shlater, 85 F.3d 1251, 1256 (7th Cir. 1996) (holding that a "consent to search is not an interrogation within the meaning of Miranda"); United States v. Hidalgo, 7 F.3d 1566, 1568 (11th Cir. 1993) (holding that consent to search obtained after defendant invoked right to remain silent is not a self-incriminating statement because it is n
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