Facts
On April 24, 2000, at approximately 1:00 a.m., a man with a handgun accosted H.C. and N.S. in the parking lot of the Hattiesburg restaurant where they worked. The man forced H.C. to drive him and N.S. to a secluded area near the Laurel-Hattiesburg airport, where he raped both of them. He stole H.C.’s vehicle and left them. The two women walked to the airport where they summoned assistance. They gave a description of their attacker as an African American male in his mid-twenties, with frizzy hair pulled back, a stubble of a beard, and wearing black jeans and a dark shirt. This information was sent out on the National Crime Information Center’s computer. The Laurel Police located the vehicle, parked and unoccupied, inside the Laurel, Mississippi city limits. Jones County Sheriff’s Investigator Wayne Black responded to the location, and saw a motel room key on the driver’s seat. The car was towed, and Black retrieved the key. Officer Black determined that the key belonged to the El Patio Motel in Laurel.
Black and a deputy went to the motel, entered the motel room and ascertained that no one was inside, then left the room and placed it under surveillance. Later that day, Black observed Irvin Forrest enter the motel room. Officer Black placed Forrest in custody and transported him to the Jones County Sheriff’s jail. A search of the motel room yielded a pair of black jeans and a nine millimeter pistol. The next day, April 25, 2000, H.C. and N.S. came to the jail, and from separate line-ups identified Forrest. Black testified that after the line-ups, he and Detective Rusty Keyes, of the Hattiesburg Police Department, gave Miranda warnings to Forrest, and attempted to question him. However, Forrest refused to waive his rights and refused to answer questions without the presence of an attorney.
Black testified that Forrest was then “isolated” and denied any opportunity to contact a lawyer, until the following day when he was initially brought before a magistrate. Black testified that following Forrest’s invocation of his right to counsel and his refusal to answer questions, but before his initial appearance and the appointment of counsel, Black again initiated questioning by asking Forrest to consent to a bodily search to procure pubic hairs for DNA testing. Black testified that he did not advise Forrest of the right to refuse to provide the samples. Black and Janet Booth, a nurse, testified that Forrest consented to the bodily search and seizure. The State’s DNA expert, Amrita Lal, testified that Forrest’s DNA matched DNA samples taken from the rape kit provided by N.S.
Analysis
A valid search may be conducted without a warrant, where the defendant gives his consent. Whether a valid consent to a search has been given must be determined by an examination of the totality of the circumstances. While one of the factors to be considered in making that determination is whether the defendant was aware that he could refuse to give his consent, it is not the controlling factor.
The record establishes that Forrest had previously been given that warning commonly referred to as the Miranda rights. At that time Forrest declined to waive those rights, and indicated his desire to speak with an attorney. Subsequent to this refusal, Forrest was approached by Black and asked to give hair samples. The testimony is that Forrest indicated his consent and cooperated in the collection of the hair samples. Based upon this evidence, the trial judge found Forrest’s consent to be sufficiently voluntary to make the search lawful. Given the record before this Court, we cannot say that the trial court’s determination that Forrest’s consent was voluntary was an abuse of discretion.
Forrest asserts that after he invoked his right to counsel and declined questioning, Black re-initiated questioning to obtain consent to collect the DNA evidence, without again advising him that he could refuse to cooperate, and his consent was thereby obtained through a violation of his rights under the Fifth Amendment to the United States Constitution. Forrest’s assertion that Black’s re-initiating questioning was improper is clearly meritorious. When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We hold that Black’s contact with Forrest was improper. However, the seizure of evidence that is of a scientific nature, and that is not of a communicative nature, is not protected by the right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution.
Because the evidence obtained is not protected by the Fifth Amendment, Black’s improper contact does not render involuntary Forrest’s consent to collect the hair samples.