MO: Consent to enter house to check voices heard by a crazy man wasn’t unreasonable

Defendant had auditory hallucinations and believed that voices, including that of his cat, were telling him to stab himself in the heart. He called 911 and police arrived. He talked with him on the porch and he explained the voices. The police offered to clear his house, yet he and the police had no fear of anyone in the house. Despite the fact that a crazy man probably couldn’t voluntarily consent, the court finds that the police wouldn’t know that and doesn’t suppress. [Without saying so, the court is saying that, on the totality, this isn’t unreasonable, and it virtually writes good faith exception into warrantless searches.] State v. Pierce, 2016 Mo. App. LEXIS 1026 (Oct. 18, 2016):

That Mr. Pierce was emotionally disturbed and had experienced auditory hallucinations, may not, by itself, be sufficient to render his consent to the search involuntary. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(e) (5th ed. 2012, database updated 2015) (“It should not be assumed … that anyone suffering from some type of mental disease or defect is inevitably incapable of giving a voluntary consent to a search.”); see also, Bryan S. Love, Comment, Beyond Police Conduct: Analyzing Voluntary Consent to Warrantless Searches by the Mentally Ill and Disabled, 48 ST. LOUIS UNIV. L.J. 1469, 1470 (2004) (noting that such cases present “close, fact-sensitive questions”).

Regardless whether the circuit court correctly found that Mr. Pierce lacked capacity to consent to a search, the circumstances here do not warrant application of the exclusionary rule. “The fact that a Fourth Amendment violation occurred … does not necessarily mean that the exclusionary rule applies”; instead, “exclusion has always been our last resort, not our first impulse.” Herring v. United States, 555 U.S. 135, 140, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (citations omitted). “[T]he exclusionary rule is triggered only when police practices are ‘deliberate enough to yield meaningful deterrence, and culpable enough to be worth the price paid by the justice system.'” State v. Johnson, 354 S.W.3d 627, 633 (Mo. banc 2011) (quoting Davis v. United States, 564 U.S. 229, 240, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011)); see also State v. Carrawell, 481 S.W.3d 833, 845-46 (Mo. banc 2016) (plurality opinion). “[E]vidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Herring, 555 U.S. at 143 (citations omitted).

Here, the officers were aware that Mr. Pierce had experienced auditory hallucinations, and he was agitated when they encountered him. Mr. Pierce was, however, able to recognize that he needed assistance, call a suicide hotline to secure it, explain to the officers why he was upset, express his desire that the officers clear his residence, and answer their questions as to whether they would encounter anyone inside. It appears that throughout the encounter Mr. Pierce was cooperative and lucid, and officers did not feel the need to physically restrain him. Nothing in the record indicates that Mr. Pierce’s comments to officers were unintelligible or unrelated to the officers’ queries. Further, there is no indication that the officers conducted the search with the intent of finding evidence of any crime or that their offer to “clear the residence” for Mr. Pierce was in bad faith or a subterfuge to conduct an illegal search.

In these circumstances, even though the court later determined that Mr. Pierce lacked capacity, it cannot fairly be said “that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Herring, 555 U.S. at 143. Exclusion of the evidence developed as a result of the search would therefore not be warranted, even if that search was based on defective consent. See Illinois v. Rodriguez, 497 U.S. 177, 187, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990) (finding no Fourth Amendment violation “when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises” with authority to consent to search); United States v. Grap, 403 F.3d 439, 445 (7th Cir. 2005) (where person consenting to search suffers from mental illness, “[t]he proper inquiry [as to application of exclusionary rule] focuses upon the objective facts, as presented to a reasonable inquirer, that would reasonably put him or her on notice that a voluntary consent could not be given.”). This point is denied.