S.D.Tex.: Gov’t fails in burden of showing consent to laptop search by mentally impaired 30 year old

In a child pornography search involving alleged consent for search of a laptop, the court finds that the 30 year old defendant was mentally impaired and didn’t understand what he was consenting to. While the question is close, the government fails in its burden of proof on voluntariness. United States v. Beckes, 2014 U.S. Dist. LEXIS 173247 (S.D. Tex. December 15, 2014):

After carefully reviewing the facts of this case, the Court finds that Beckes did not voluntarily consent to Agent Baker’s initial search of his laptop computer. Although this decision is very close, the Court was ultimately persuaded by its analysis of three of the six factors suggested for this determination: Beckes’ education and intelligence, the presence of coercive police procedures, and Beckes’ awareness of his right to refuse consent. Of these three factors, Beckes’ education and intelligence weighed most heavily on the Court’s decision—a logical inclination, since any inquiry concerning these matters necessarily pervades the analysis for the other five factors. Other courts have similarly made the defendant’s education and intelligence the focal point of their voluntariness analysis, recognizing that the subjective state of an individual must be analyzed to fully comprehend the significance of any outward behavior. See, e.g., U.S. v. Barry, 979 F. Supp. 2d 715, 720 (M.D. La. 2013) (defendant’s limited grasp of English prevented a finding of voluntary consent, despite defendant’s apparent cooperation with the officers).

Here, substantial evidence shows that Beckes does not possess the education or intelligence expected of a thirty-year old man. While attending school, Beckes was diagnosed with a learning disability and enrolled in special education classes. As an adult, he has considerable difficulty reading and writing as well as a history of memory and concentration problems—issues he believes stem from his mother’s consumption of medicine while she was pregnant with him. Evidence also shows that Beckes is not self-sufficient and relies on others to fulfill his basic needs, such as transportation and shelter. Despite the fact that he has maintained a job for a number of years, Beckes has never worked more than twenty hours a week and his duties have remained menial. Based on these facts, the Court finds that Beckes does not possess the education and intelligence of a thirty-year old man—a deficiency that weighs heavily against a finding of voluntary consent.

Aside from its consideration as a discrete factor, Beckes’ mental capacity also affects the Court’s examination of the second factor in its voluntariness analysis: presence of coercive police procedures. Police misrepresentations accomplish the same purposes as coercion, and some courts have found that substantial misrepresentations regarding the purpose of a search can invalidate an otherwise voluntary consent. See, e.g., U.S. v. Parson, 599 F. Supp. 2d 592, 603 (W.D. Penn. 2009) (officers investigating child pornography told suspect that they were investigating “identity theft”; suspect’s consent to search held invalid because of misrepresentation). A statement, however, does not have to be an outright lie to be considered a misrepresentation—vagueness and ambiguity can still serve to misrepresent the true purpose of a search. Thus even for less substantial misrepresentations, a court should still “analyze the extent to which the deceit directly served to overcome a citizen’s reticence or resistance to the search.” Id.

Here, testimonies differed concerning what Beckes was told regarding the purpose of the agents’ search. Agent Baker said he informed Beckes that he was “looking for images and videos of persons under the age of 18,” while Beckes and Blanco testified that Agent Baker only said that he was investigating “suspicious activity” in the neighborhood. Although “suspicious activity” does not wholly misrepresent the purpose of Agent Baker’s search, it does describe it ambiguously. The overall impression from the evidence is that Agent Baker either expressly or impliedly suggested that the search regarded conduct by the neighbors—not by Blanco or Beckes. Taking into account Beckes’ limited mental capacity, this ambiguity would likely prevent him from understanding the true purpose or extent of the subsequent search, thus weighing against a finding of voluntary consent.

Even assuming that Agent Baker’s account of his interaction with Beckes is accurate, the facts still show that more should have been done to ensure that Beckes’ consent was voluntary and fully informed. Considering Beckes’ mental capacity, the purpose of the search should have been more concretely described to ensure Beckes was making a fully informed consent—had Agent Baker said he was investigating “child pornography,” Beckes would have undoubtedly understood what he was looking for and what the search would entail. Although “images and videos of persons under the age of 18” would convey the same meaning to a person of average intelligence, Beckes is not functioning on that level. Thus, taking into account his specific characteristics, more should have been done to ensure that Beckes’ consent was indeed voluntary and fully informed as required to waive his Fourth Amendment rights.