Taking clothes is not a 5th amendment issue but it could be a 4th amendment issue


In 2000, Jane Doe, and Allen Scott, were found severely beaten and in critical condition on the side of the road near Durant, Mississippi. Earlier that day, a rest stop security officer had seen them and bought them bus tickets to return to their homes in Texas. Later that day, Durant police officer Howard Harrison saw Doe and Scott at the bus stop with Elliot Culp and Travis Lowe.

Culp and Lowe took Scott and Doe out into the country, brandished a pistol which had been taken from Lowe’s sister’s home, and demanded $5,000 which Scott was rumored to have stolen from someone in Texas. When told that they did not have any such money, Culp forced Scott out of the car and held the gun to his head while Lowe raped Doe.

Culp also raped her, then burned Scott and Doe’s clothing, and cut Scott’s throat and Doe’s side with a knife. Before leaving the scene, Culp beat Scott, and Lowe beat Doe with a baseball bat. Then Culp and Lowe drove away, leaving Doe and Scott on the side of the road.

Two people passing by called an ambulance after they saw the bodies and fire. Scott and Doe were transported to the hospital where Scott later died from lethal blunt force trauma to the skull. Doe was in a coma but later regained consciousness and recovered.

Since he had last seen the victims with Culp and Lowe, Harrison and another officer went to Culp’s house where they briefly spoke with Culp’s mother and then asked Culp to come down to the police station to discuss his relationship with the victims. While at the police station Culp’s mother brought him fresh clothing and the clothes he was wearing were taken.

The officers obtained a warrant for a blood sample from Culp and Lowe, and subsequently DNA from blood spots on Culp’s shirt and shoes was found to be consistent with Doe’s DNA. DNA evidence from Culp was also found on a vaginal swab taken from Doe.

In exchange for leniency in sentencing, Lowe confessed to officials that he and Culp committed the attacks on Doe and Scott as part of a robbery. Culp’s statement was that he left Doe and Scott at the bus station. He also said he did have intercourse with Doe, but it was consensual.

Culp was convicted of forcible rape, armed robbery, kidnaping, arson, aggravated assault, and conspiracy to commit an armed robbery and sentenced to 60 years. On appeal, he argued 1) he was illegally arrested at his home without an arrest warrant or exigent circumstances; (2) by surrendering his clothes, he was required to make a statement in violation of Miranda v. Arizona; and (3) the search warrant was based on evidence which did not amount to probable cause. MSC affirmed.


A. Culp voluntarily went to police station

In Blue v State, 674 So. 2d 1184 (Miss. 1996), we said that “arrest” means the “taking into custody of another person by an officer for the purpose of holding him to answer an alleged or suspected crime. Someone who voluntarily accompanies the police to another location for questioning has not been arrested.

We also held in Godbold that the test for determining when a person is “in custody” is whether a reasonable person would feel that they were going to jail and not just being temporarily detained. Ultimately this means whether a reasonable person felt they had the freedom to refuse police demands.

The U.S. Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), has held that one does not have to be affirmatively told that they had the right to refuse for their actions to be voluntary.

This court in Jones v. State ex rel. Miss. Dep’t of Pub. Saf’y, 607 So.2d 23 (Miss. 1991), held that the voluntariness of an accused’s consent is based on the “totality of the circumstances” including among other things: the location of the encounter, any overt coercion, the display of weapons, experience of the defendant with the criminal justice system, and the defendant’s age.

Culp’s assertion that he was arrested at his home is not borne out by the record, which clearly indicates that the officers were there to speak to him because he and Lowe were the last people seen with the victims. The officers did not arrest Culp at that time, and in fact, told Culp’s mother that they merely wanted to question him. Culp agreed to accompany the officers to the police station.

When the officers asked Culp to go with them to the police station, they were doing so to further a general investigation and not to hold Culp to answer for a specific crime. It was not until later that the evidence against Culp indicated his involvement in the assault of one victim and the assault and rape of the other.

At all times Culp remained free to refuse to go with the officers. Although they did not tell Culp that he had the right to refuse, under Schneckloth they were not obligated to do so. Further, the fact that the two officers were armed does not make Culp’s consent involuntary. They did not display their weapons or indicate that they were present at Culp’s home for the purpose of arresting him, or that force would be used against him.

Harrison merely asked Culp to come to the police station to answer questions regarding his relationship with the victims. In Jones, we clearly illustrated that the presence of armed police does not itself make consent involuntary, but is rather part of the “totality of the circumstances” to be considered. Also, Culp had experience with police investigations, because he had previously been indicted for another crime.

B. Taking Culp’s clothes

Chief Eskridge escorted Culp into his office, where they talked while waiting for Sheriff March to arrive. While they were talking, Culp asked the Chief, without being prompted, whether he should remove his clothing and surrender it to the police. Eskridge responded that he probably should do so, but did not compel Culp to surrender his clothing.

Eskridge did not know that Sheriff March, while en route from the crime scene to the station, had spoken to someone and suggested that Culp’s clothes needed to be examined.

The Fifth Amendment secures the right to have an attorney present if requested by individuals subject to “custodial interrogation.” To be subject to “custodial interrogation” one must be both in custody and undergoing interrogation.

One is in custody if a reasonable person would find their ability to freely leave restricted. Interrogation does not mean only questioning but rather questioning and its “functional equivalent.” The U.S. Supreme Court in Rhode Island v. Innis, 446 U.S. 291 (1980) defined “functional equivalent” to mean words or actions that the police should know are reasonably likely to elicit an incriminating response.

We said in Upshaw v State, 350 So. 2d 1358 (Miss. 1977), that the Fifth Amendment privilege against self-incrimination applies only to testimonial evidence and not to real or physical evidence. In Upshaw, this court held that clothing is not testimonial evidence and therefore the Fifth Amendment privilege against self-incrimination will not bar its introduction at trial. Clothing, as we stated in Upshaw, is physical evidence and not a statement.

Further, at the time that Chief Eskridge told Culp that he should probably surrender his clothing, Culp was not under custodial interrogation. The exchange between Culp and Eskridge was initiated by Culp and not by the police, and lasted only long enough for Eskridge to reply to Culp’s direct inquiry. It did not result in Eskridge asking any questions of Culp or taking any statements from him.

The facts indicate that Culp voluntarily surrendered his clothing to Chief Eskridge without police compulsion. Voluntary consent eliminates the warrant requirement.

C. Search Warrant

In McDuff v. State, 763 So. 2d 850 (Miss. 2000), we said that if the police require an accused to submit a blood sample, probable cause must exist to prove that the accused committed a crime. In order for the police to be granted a search warrant they must demonstrate to the judge evidence of underlying facts and circumstances necessary to provide a substantial basis for finding probable cause.

In the present case the police presented Judge Lewis with the following evidence:

1) an aggravated assault of two victims occurred in Holmes County leaving both in critical condition and unconscious;

2) a large amount of blood was present at the crime scene;

3) a police officer saw defendants Culp and Lowe talking with the victims earlier that evening;

4) Sheriff March had observed spots on Culp’s clothes and on Lowe’s shoe that appeared to be blood; and

5) the crime scene had an imprint of tennis shoe similar to Lowe’s shoe.

Such evidence gives rise to a substantial basis for concluding that probable cause exists. The trial judge did not err in issuing a warrant to have a sample of Culp’s blood taken.