D.Vt.: Defendant on Xanax who was genuinely confused about his rights didn’t validly consent

Defendant who be significantly under the influence of Xanax and was not shown to be aware of his rights was not shown by the government to have validly consented. They said they required a search warrant, and the officers said they could stay but couldn’t leave until warrant arrived. United States v. Westcom, 2014 U.S. Dist. LEXIS 23348 (D. Vt. February 25, 2014):

Defendant exhibited obvious confusion with the circumstances that led his home to be searched and asked Agent Merchand for legal advice. Agent Merchand told Defendant that he could not provide legal advice and then proceeded to explain that the agents would put the information they had found in a warrant application and present it to a judge. At that point, Defendant had already made several incriminating statements including that he and his wife smoked marijuana, had revealed his grow operation to the agents, and had permitted the agents to seize his shotgun. When Agent Merchand became “weary” of Defendant’s questions, he summoned Agents Sylvia and Grindle downstairs to speak to Defendant. After Agent Sylvia spoke to Defendant, he, too, became concerned with Defendant’s statements and his inability to answer Defendant’s questions. When Defendant demanded a warrant, the initial search ceased.

The search warrant affidavit did not disclose the agents’ concerns regarding Defendant’s sobriety or his confusion regarding how the agents came to be searching his home. It also fails to disclose Defendant’s concerns regarding the legality of the search or his ultimate insistence that the agents obtain a warrant. These facts were clearly relevant to the determination of whether the agents had made a lawful entry into Defendant’s residence and whether the evidence obtained thereafter was lawfully obtained through a consent search. The omission of these facts from the warrant application, together with other facts,4 undermines the credibility of the agents’ testimony regarding the level of Defendant’s impairment and their conclusion that Defendant fully understood the options presented to him.

On balance, the government has established some evidence that Defendant may have possessed the capacity to consent when he was presented with Agent Sylvia’s two options. It cannot, however, further establish that Defendant’s consent was anything other than acquiescence to a show of authority.

“In determining voluntariness … knowledge of the right to refuse consent is only one factor in the analysis.” United States v. Kon Yu-Leung, 910 F.2d 33, 41 (2d Cir. 1990); see also United States v.Garcia, 56 F.3d 418,422-23 (2d Cir. 1995) (noting”knowledge of the right to refuse consent” is a “factor” in determining whether consent was voluntary). “Although the Constitution does not require ‘proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search,’ such knowledge [is] highly relevant to the determination that there had been consent.” United States v. Mendenhall, 446 U.S. 544, 558-59 (1980) (quoting Schneckloth, 412 U.S. at 234). Here,when securing Defendant’s alleged consent, Agent Sylvia never told Defendant that he had a right to refuse it. See Isiofia, 370 F.3d at 231-33 (finding consent involuntary, the court noted law enforcement did not inform defendant of the right to refuse consent); United States v. Wilson, 11 F.3d 346,351 (2d Cir. 1993) (“[T]he fact that he was not informed of his right to refuse consent to the search, cause us to doubt whether [the defendant] actually consented to this search.”).

Proceeding only on Defendant’s statement to “do what you have to do,” the agents made entry into Defendant’s residence. With no concern regarding officer safety or dissipating evidence and with both Defendant and Billie Westcom, the sole occupants of the house, under surveillance, there was ample time, opportunity, and incentive to secure written consent. For tactical reasons, the agents decided to forego this precautionary step even though it would have clearly advised Defendant of his right to refuse consent and would have served to confirm his alleged decision to authorize a search of his residence.