D.Neb.: Hallucinating man on drugs could not voluntarily consent

The police responded to a 911 call about a “break-in” and a shooting. They found the defendant outside the house, confused and under the likely influence of drugs. They did a “protective sweep” on exigency and found drug stuff. They proceeded to search. The USMJ recommended suppression for lack of a warrant, and the USDJ agreed. The proper recourse was to get a search warrant and not rely on an alleged consent from a man they admit was hallucinating. Motion to suppress granted for lack of a warrant. United States v. Einerson, 2011 U.S. Dist. LEXIS 15633 (D. Neb. February 16, 2011):

The officers testified that the defendant appeared to be under the influence of a drug and was acting erratic, excited, nervous, paranoid and fidgety. Id. at 53-55. The defendant was pacing in the middle of the street and scratching his face. Id. He later made statements that led the officers to believe he was hallucinating. Id. at 55. At the time the second search was conducted, the defendant had been handcuffed and placed in the police cruiser. Id. at 38. He was later arrested on an outstanding warrant for driving under suspension and failure to appear and was transported to the police station and booked. Id. at 40.

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The court agrees with the magistrate judge’s conclusion for the reasons stated in his opinion. The court finds the government’s reliance on Colorado v. Connelly, 479 U.S. 157, 164 (1986), for the proposition that “a Defendant’s mental condition, by itself and apart from its relation to official coercion, should never dispose of the inquiry into constitutional voluntariness” is misplaced. See Filing No. 47, Government Brief at 2. That case involves the voluntariness of a confession in the context of Fourteenth Amendment/Fifth Amendment [*5] Due Process rights and the Fifth Amendment’s protection against self-incrimination. Connelly, 479 U.S. at 167, 170. Coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment. Id. at 167 (emphasis added). The voluntariness of a waiver of the privilege against self-incrimination has always depended on the absence of police overreaching, not on “free choice” in any broader sense of the word. Id. at 170 (stating that “Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that”). The case has no application to the voluntariness of a consent to search under the Fourth Amendment. See, e.g., United States v. Montgomery, 621 F.3d 568, 573 (6th Cir. 2010) (noting that Fifth Amendment waiver and Fourth Amendment consent-to-search inquiries are not the same and that one difference is that the involuntariness prong of a Miranda waiver requires coercive police activity as a necessary predicate, something generally not required in Fourth Amendment consent cases).