D.Me.: Officers’ lack of awareness of def’s mental illness a factor in def’s consent to search

Officers were unaware of defendant’s mental illness when they talked to him and secured his consent. On the totality, it is found voluntary. United States v. Merrill, 2019 U.S. Dist. LEXIS 25763 (D. Me. Feb. 19, 2019) [it seems to me that the court stresses too much the officers’ knowledge of mental illness and not enough on his vulnerability]:

I am persuaded by this line of reasoning and am satisfied that despite Merrill’s mental health struggles, his consent was voluntarily given. The record establishes Officers Hutchings and Nyberg were unaware of Merrill’s mental illness at the time of their warrantless search. Given the officers’ lack of knowledge of Merrill’s illness, I find that they did not “obtain[] consent by exploiting a known vulnerability.” Coombs, 857 F.3d at 449. Furthermore, nothing in their interactions with Merrill indicated he was suffering from a severe mental illness that manifestly would have vitiated his voluntary consent to enter the residence. To the contrary, Merrill’s behavior suggests he was understood and was amenable to the police officers’ requests. Like the defendant in Coombs, Merrill remained calm and carried on a cogent conversation with the officers throughout their interaction. He responded to their questions appropriately, even eagerly.

I see nothing in the record that would have put a reasonable officer on notice that Merrill’s underlying mental health conditions precluded him from providing voluntary consent at the time of the officers’ search, and Defendant offered no positive evidence to the contrary. See, e.g., United States v. Reynolds, 646 F.3d 63, 73-74 (1st Cir. 2011) (similarly relying on external indicators such as testimony that the defendant was “responsive, lucid, and cooperative with the police officers” to conclude that “there was no evidence that [the defendant] was affected by any underlying illness during the time of the search.”); United States v. Coraine, 198 F.3d 306, 309-10 (1st Cir. 1999) (rejecting the defendant’s claim that “an anxiety attack induced him to consent” and relying on external indicators of his ability to consent by stating: “even if [the defendant] had a medical condition that made him susceptible to an anxiety attack, and even if he became somewhat upset at a point during his interrogation, his speech and demeanor appeared to be normal when they asked for permission to search his mobile home”). In short, I see no evidence of a “nexus between the appellant’s psychiatric history and the giving of consent.” Coombs, 857 F.3d at 449.

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3. Summary

Although a few factors in the present case run contrary to a finding of voluntary consent—for example, Merrill was not advised that he could withhold consent—the totality of the circumstances militate strongly toward the conclusion that Merrill not only possessed the capacity to consent, but that he in fact voluntarily consented. Thus, I am satisfied the government has met its burden by establishing by a preponderance of evidence that Merrill voluntarily consented to the officers’ search of his home.