CA6: Defendant on morphine in hospital after shooting could consent; no per se rule

Defendant was shot and in the hospital getting morphine. He consented while under morphine. There is no per se rule that he could not consent, and “per se rules are anathema to the Fourth Amendment.” United States v. Montgomery, 621 F.3d 568, 2010 FED App. 0296P (6th Cir. 2010):

We sympathize with one legal premise of Montgomery’s argument but not another. It is no doubt the case that medication or intoxication may diminish the capacity to consent to the extent it undermines an individual’s grasp on the reality of what he is doing. When officers seek and obtain consent from a medicated or intoxicated individual, as is sometimes appropriate, they can expect a dispute about the voluntariness of any consent given and what often comes with it: attendance and testimony at a suppression hearing. And in some settings, the influence of drugs, prescribed or otherwise, or the influence of alcohol may tip the balance in favor of finding a lack of capacity to consent to the search.

Yet Montgomery apparently wants more. He wants what amounts to a per se rule that medication (or intoxication) necessarily defeats an individual’s capacity to consent, given that the only cognizable evidence on which he relies relates to the morphine injection. That is a bridge too far. As a general matter, per se rules are anathema to the Fourth Amendment, see Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996), a provision that speaks of “unreasonable” searches and seizures, U.S. Const. amend. IV, and a provision whose rights can be waived by consent, as measured by the “totality of all the circumstances,” Schneckloth, 412 U.S. at 227. Drug-induced impairment, moreover, is a matter of degree, making it appropriate to gauge the impact of drugs on a case-by-case basis and in view of other circumstances at play.