## Facts

- A federal grand jury returned a sealed indictment charging John Ruotolo and others with conspiring to import heroin from Southeast Asia between 1984 and 1987, and an arrest warrant issued.
- DEA agents arrested Ruotolo at his home pursuant to the warrant; during a protective sweep, agents observed one firearm in plain view.
- After receiving Miranda warnings, Ruotolo said he was unsure whether he should speak to his lawyer before answering questions or consenting to a search.
- An agent told Ruotolo he would not be able to make calls while other arrests were ongoing and directed agents to obtain a search warrant.
- Ruotolo later reinitiated discussion and signed a written consent-to-search form.
- The consent search produced nineteen handguns and other physical evidence, in addition to the firearm initially observed in plain view.
- At the time consent was obtained, Ruotolo had already been indicted but was not affirmatively told of the indictment, which remained under seal.

## Issues

1. Whether a defendant’s post-indictment consent to search a home is a “critical stage” requiring Sixth Amendment counsel (and a knowing waiver) for the consent to be effective.
2. Whether the validity of post-indictment consent to search is governed instead by Fourth Amendment voluntariness under the totality of the circumstances.

## Decision

- The Second Circuit reversed the suppression order (except as to the plain-view firearm) and remanded.
- A consent to search, even when obtained after indictment, is not a “critical stage” for Sixth Amendment purposes.
- The absence of notice that an indictment has been returned does not automatically invalidate consent on Sixth Amendment grounds.
- The proper test is whether consent was voluntary under the Fourth Amendment, assessed under the totality of the circumstances.
- The case was remanded for the district court to determine whether Ruotolo’s consent was voluntary in light of the encounter’s circumstances.

## Legal Principles

- The Sixth Amendment right to counsel may attach upon indictment, but it applies only at “critical stages” where counsel is needed to preserve rights or defenses; a consent-to-search decision is not such a stage.
- Consent searches are evaluated under the Fourth Amendment; consent is valid if voluntary and not the product of duress or coercion under the totality of the circumstances.
- A person’s knowledge of the right to refuse consent is relevant to voluntariness but is not a prerequisite to a valid consent.
- Lack of explicit notice of indictment may be considered as a factor in voluntariness, but it does not create a per se constitutional bar to using evidence obtained by consent.

## Conclusion

The court held that post-indictment consent to search does not trigger a Sixth Amendment counsel requirement because it is not a critical stage; instead, admissibility of evidence from the search depends on whether consent was voluntary under the Fourth Amendment’s totality-of-the-circumstances standard.


United States v. Kon Yu-Leung, 910 F.2d 33 (2d Cir. 1990)