M.D.Tenn.: Even the allegedly delusional can consent to a search

Defendant’s allegedly being delusional did not prevent him from being able to grant effective consent. He seemed perfectly fine when he was talking to the officers about his child pornography collection which he then consented to a search of. United States v. Smith, 2013 U.S. Dist. LEXIS 51841 (M.D. Tenn. April 10, 2013):

In United States v. Grap, 403 F.3d 439 (7th Cir. 2005), the defendant’s mother gave consent to law enforcement officers to conduct a warrantless search of her garage where the defendant had hidden some stolen guns. Id. at 441. The defendant argued that Mrs. Grap’s consent was not voluntarily given, presenting the testimony of her husband and psychiatrist that she was mentally ill and therefore lacked the requisite mental capacity for voluntary consent. Id. Mrs. Grap’s psychiatrist stated that she was “hospitalized for a delusional disorder that impaired her ability to make rational decisions, and that she refused to take her medication when she was not in the hospital, causing her to become increasingly delusional and out of touch.” Id. The psychiatrist testified that Mrs. Grap could appear to be fairly lucid, although she might be in a delusional state. Id. at 441-42. The Seventh Circuit affirmed the district court’s denial of the defendant’s suppression motion, stating that despite Mrs. Grap’s mental infirmities, Mrs. Grap freely and voluntarily consented to the search, that she was aware of all the relevant circumstances of the search and seizure of the stolen guns and that despite the “potentially serious … effects of her psychosis, Mrs. Grap’s behavior did not indicate that she lacked the requisite mental capacity to consent.” Id. at 443. The Seventh Circuit explained:

The standard of what is reasonably apparent to a reasonable inquiring officer, with its emphasis on the deterrence rationale of the exclusionary rule, is the correct approach. The purpose of suppression of evidence obtained in an unreasonable search is to deter violations by officers of the Fourth Amendment. Obviously, they cannot be deterred by circumstances that are unknown to them, like the psychiatric history of the person consenting to a search. Thus, the exclusionary rule should not be applied when its application will not result in ” ‘appreciable deterrence.'”

. . . .

The proper inquiry here 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.

Of course, in addition, the mental capacity of the person giving consent is only one factor in evaluating his capacity to give voluntary consent. And “[i]t 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.” 4 Wayne R. LaFave, Search and Seizure § 8.2(e), at 93 (4th ed.2004).
Id. at 444-45 (citations omitted); see United States v. Ingram, No. 3:10-cr-00069, 2010 U.S. Dist. LEXIS 139041, 2010 WL 5441671, at *11-12 (W.D.N.C. Dec. 28, 2010) (applying the rationale in Grap and concluding that although the consenter suffered from dementia, the officer’s conclusion of voluntariness was reasonable in light of the consenter’s behavior as presented to the officer); Brewster v. New York, No. 08-CV-4653, 2010 U.S. Dist. LEXIS 887, 2010 WL 92884, at *7 (E.D.N.Y. Jan. 6, 2010) (rejecting petitioner’s claim that he was incapable of giving consent due to a mental disease or defect, the court, citing Grap, explained that the relevant question is not whether petitioner in fact suffered from a mental disease or defect at the time he consented to the search, rather the question is an objective one-whether under the totality of the circumstances was the consent voluntary or involuntary? The court concluded, “There is nothing in the record to suggest that petitioner was not lucid and cooperative while dealing with police. Nor were there signs in the record that petitioner was suffering from delusional symptoms or any other serious impairment that would indicate to a reasonable officer that the consent was not voluntary.”); see also Montgomery, 621 F.3d at 572, 573 (rejecting “a per se rule that medication (or intoxication) necessarily defeats an individual’s capacity to consent,” the Sixth Circuit compared the Fifth Amendment waiver and Fourth Amendment consent-to-search inquiries, and noted, that “the ‘knowing and intelligent’ prong of the Miranda waiver inquiry is more protective of individual liberty than the consent-to-search doctrine because it requires a ‘full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it,’ namely, a Miranda warning, something not required in Fourth Amendment consent cases.”) (citations omitted) (emphasis in original); Colorado v. Connelly, 479 U.S. 157, 166, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986) (in the context of determining the voluntariness of a confession where defendant suffered from a psychosis that interfered with his ability to make free and rational choices and exclusively relied on his mental condition, the Supreme Court stated, “Only if we were to establish a brand new constitutional right—the right of a criminal defendant to confess to his crime only when totally rational and [*39] properly motivated—could respondent’s present claim be sustained.”); Clark v. Mitchell, 425 F.3d 270, 283-84 (6th Cir. 2005) (in the context of the voluntariness of a confession, the Sixth Circuit concluded that “borderline retardation” or “low average intellect” was “not dispositive” on the question of voluntariness.).

There is nothing in the record that Defendant acted in anyway that would have alerted the agents that Defendant suffered from a delusion disorder or suffered from any mental illness that would have rendered him incapable of giving his consent to search his computer. Thus, under the totality of all the circumstances the Court concludes that the Government has met its burden that Defendant possessed the mental capacity to give consent and Defendant’s consent was voluntarily given and was not the result of duress or coercion, express or implied.

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