Defendant K.H. appeals from his jury trial convictions for aggravated sexual assault and burglary. He claims DNA evidence police collected from him should have been suppressed because his consent to the buccal swab test was coerced. He argues inter alia that it was unlawful for detectives to ask for consent after he invoked his Miranda rights, citing the court's recent decision in State v. Amang, __ N.J. Super. __ (App. Div. 2025).
The present case probes the underlying rationale and boundaries of the bright line rule established in Amang. In that case, the court held that under the New Jersey Constitution, police may not ask a person in custody to grant consent to a search if they had previously asserted the right to confer with an attorney during the administration of Miranda warnings. In adopting that bright line rule, the court stressed the unique ability of attorneys to protect the Fifth Amendment rights of a client undergoing custodial interrogation.
The court in the present appeal makes clear the categorical rule announced in Amang is triggered only by an arrestee's assertion of the right to confer with counsel. It is not triggered by a defendant's assertion of the right to remain silent.
Although it is not disputed that defendant in this case invoked his Miranda rights, the motion court did not make a specific finding on whether defendant requested to confer with an attorney, as he claims. The court concludes that a remand for further factfinding is unnecessary in this case because in any event, the motion court correctly found that defendant's DNA would ultimately have been obtained under the inevitable discovery doctrine. The court notes, however, the Miranda waiver form used in this case, like the one used in Amang, documents whether the arrestee invoked Miranda rights, but does not memorialize whether they asked to confer with counsel, asserted the right to remain silent, or asserted both rights guaranteed under Miranda.
That distinction is important not only with respect to applying the Amang rule but also to ensure compliance with Fifth Amendment case law that precludes police from reinitiating custodial interrogation after the arrestee has asserted the right to counsel. The court recommends that the Attorney General and county prosecutors review existing Miranda waiver forms to consider whether they should be revised to facilitate documenting whether an arrestee asserted the right to confer with counsel.