CA8: Defendant was too intoxicated to consent to a search

Officers reasonably believed that the defendant consented to an entry, but could not reasonably believe he consented to a search of the premises and admitted that they believed he was too intoxicated to consent. If one cannot consent expressly, he cannot consent impliedly. United States v. Castellanos, 518 F.3d 965 (8th Cir. 2008):

Keeping in mind “[t]he precise question is not whether [Castellanos] consented, but whether his conduct would have caused a reasonable person to believe that he consented,” United States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001) (citation omitted), we agree with the government that the record indicates the officers reasonably believed Castellanos did not object to the officers following him into the living room. Under the totality of the circumstances, the officers’ entry into the residence’s living room was reasonable. However, allowing an officer to enter one’s home and allowing the officer to search the home are two very different matters. When a person permits an officer to enter the person’s home, the officer does not have free reign to wander around the home and search any area of the house, without further consent. Indeed, Castellanos expressly refused consent to search his residence.

Consent to search can be inferred from gestures and other conduct. See Jones, 254 F.3d at 695. However, in this case, the officers admittedly believed Castellanos, who was not under arrest, “was too intoxicated to consent to a search of his residence.” The record shows Detective Ortiz requested a search warrant for the residence because Castellanos was too inebriated to consent. Detective Ortiz’s testimony as to Castellanos’s condition is not internally inconsistent and was not contradicted by objective evidence. If Castellanos’s intoxication was such that the officers believed Castellanos was incapable of giving consent to a search, it must follow that Castellanos did not possess the capacity to give implied consent. Under the facts of this case, it is simply not reasonable for the officers to infer Castellanos impliedly consented to their entry into his bedroom when Castellanos “kind of flipped his hand” in that direction.

Prevailing plaintiff on a preliminary injunction against a city ordinance that permitted warrantless inspections of rental property was a “prevailing party” for attorneys fees purposes under 42 U.S.C. § 1988. Dearmore v. City of Garland, 519 F.3d 517 (5th Cir. 2008).*