USA v. Montgomery

• Decision Date: 13 September 2010
• Docket Number: No. 09-3289.,09-3289.
• Citation: 621 F.3d 568
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. McCellon MONTGOMERY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

621 F.3d 568

UNITED STATES of America, Plaintiff-Appellee,

v.McCellon MONTGOMERY, Defendant-Appellant.

No. 09-3289.

United States Court of Appeals,Sixth Circuit.

Decided and Filed Sept. 13, 2010.

ON BRIEF: Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Robyn Jones Hahnert, Kevin W. Kelley, Assistant United States Attorneys, Columbus, Ohio, for Appellee.

Before: SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge. ^*

OPINION

SUTTON, Circuit Judge.

McCellon Montgomery challenges the district court's denial of his motion to suppress evidence, claiming he did not voluntarily consent to a search of his home due to the effects of medication. Because medication (or for that matter intoxication) is one among many factors to consider in the inquiry, see Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and because the sum of relevant circumstances supported the district court's credibility-based decision that Montgomery voluntarily consented, we affirm.

I.

In the early morning of July 14, 2007, while Montgomery stood on the back porch of his home near Lucasville, Ohio, someone hiding in the trees shot Montgomery in the back with birdshot or buckshot. Montgomery woke up his girlfriend, Joyce Ewing, who was passed out on the couch after a night of beer drinking and marijuana smoking. Ewing retrieved Montgomery's .22 rifle and Montgomery returned fire, after which Ewing called 911. The assailant fled.

Officer Daniel Malone arrived and found Montgomery standing shirtless in front of the house, his back peppered with pellet holes. After confirmation that the shooter was gone, Malone and Montgomery waited for medical personnel to arrive. Malone noticed that Montgomery had no trouble communicating, as did Officer Anthony Crawford, who arrived shortly after Malone.

After Montgomery left for the hospital, Detective Paul Blaine arrived, and the two officers and he surmised that the attacker had tried to break into the shed. Blaine relayed the developments to his supervisor, Captain John Murphy, who was at the hospital with Montgomery, and asked Murphy to ask Montgomery for consent to search the home and outbuildings.

The officers had other reasons to search the area. They noticed marijuana paraphernalia in the kitchen, a humming noise coming from the shed, a pressurized garden hose leading into the shed and the smell of marijuana near the shed, leading them to think that the shed housed a marijuana-growing operation.

When Montgomery arrived at the hospital, Nurse Jason Bennett took care of him. Bennett recorded no active bleeding from Montgomery's wounds, and noted that the “patient is alert and oriented ... to person, place, and time, [has] clear speech, [and] answer[s] any questions appropriately,” R.47 at 141.

Ten minutes after arriving at the hospital, Montgomery complained of pain rating a 10 on a 10-point scale, prompting another nurse to administer 8 mg of morphine intravenously. Five minutes after the injection, Bennett noted that Montgomery was still alert and not disoriented. In the meantime, the doctor ordered a catheter to help drain Montgomery's bladder, but he refused. Bennett deferred to Montgomery's wishes because he saw no reason to question Montgomery's ability to make the decision for himself. About ten minutes later, Montgomery rated his pain a 4 out of 10.

Around this time, roughly twenty minutes after Montgomery had arrived at the hospital, Captain Murphy and Detective Denver Triggs asked Montgomery for consent to search his home and outbuildings to help them locate the shooter. Montgomery responded, “That's fine,” without question or hesitation. R.47 at 313. The officers did not tell him that he could refuse to consent and they did not obtain the consent in writing. According to Bennett, the officers did not interfere with Montgomery's medical care during the questioning, Montgomery remained alert throughout and the morphine did not affect Montgomery's ability to answer the officers' questions.

Captain Murphy called Detective Blaine and told him that Montgomery had consented to the search. At the house, Ewing signed a consent form, after which the officers began the search. The police discovered a marijuana-growing operation inside the shed and in a cellar beneath the home.

A federal grand jury indicted Montgomery for knowingly growing “100 or more marijuana plants.” R.3; see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii). Montgomery moved to suppress the evidence obtained from the search, contending that he was incapable of voluntarily consenting to the search and that Ewing lacked the authority or the capacity to consent. The district court held a suppression hearing in which eleven witnesses, including Nurse Bennett, testified. After the hearing, the court denied the motion on the ground that Montgomery had given his consent voluntarily and did not reach the issue of Ewing's consent. Montgomery pled guilty, reserving the right to appeal the suppression ruling.

II.

Montgomery claims that, in the aftermath of the shooting and the medication, “the objective evidence shows that he could not physically or mentally have acquiesced, in any meaningful fashion, to the officer's request for consent to search.” Montgomery's Br. at 10. The general grounds for this type of claim are well-plowed. Police officers do not need a warrant to search a home when the owner consents to the search. Schneckloth, 412 U.S. at 219, 93 S.Ct. 2041. Any consent must be “freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); see also United States v. Moon, 513 F.3d 527, 537 (6th Cir.2008). Voluntariness is a question of fact determined under the “totality of all the circumstances,” which includes these considerations, among others:

“youth of the accused; his lack of education, or his low intelligence; the lack of any advice to the accused of his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep.” Schneckloth, 412 U.S. at 226-27, 93 S.Ct. 2041 (citations omitted). In reviewing consent determinations, we defer to the district court's findings and credibility determinations while construing the evidence in the light most favorable to the winner of the suppression motion-the government in this instance. See Moon, 513 F.3d at 536-37.

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, 93 S.Ct. 2041. 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.

This approach is consistent with a series of unpublished decisions in our circuit. In one case, the defendant claimed that the party giving consent was under the influence of crack cocaine. See United States v. Griffin, No. 96-5326, 1997 WL 487325 (6th Cir. Aug. 15, 1997) (per curiam). We eschewed adopting a bright-line rule, holding that the record did not show sufficient impairment to deem her consent invalid and reasoning that “voluntary consent can be given even by a person under the influence of drugs, when that person is coherent and fails to exhibit any visible impairment.” Id. at *3. In another case, the defendant claimed that he was too intoxicated to consent to a search. See United States v. Fletcher, 295 Fed.Appx. 749 (6th Cir.2008). We upheld the search on plain error review based on the testimony of two police officers, who said that the defendant “did not seem impaired, was not swaying or unsteady, had no trouble signing the consent form, and appeared to be coherent.” Id. at 757. At the same time, we have affirmed at least one case in which the district court found that the individual's drug impairment and several other factors precluded a valid consent to search. See United States v. Carr, 187 Fed.Appx. 602, 607 (6th Cir.2006) (per curiam).

This approach also lines up with decisions from the other circuits. See, e.g., United States v. Watters, 572 F.3d 479, 483 (8th Cir.2009) (“Factors relevant to the voluntariness of a defendant's consent include whether the defendant was intoxicated, but intoxication alone does not render consent invalid.”); United States v. Scheets, 188 F.3d 829, 839-40 (7th Cir.1999) ( “The mere fact that an individual is intoxicated does not render consent involuntary.... It is simply another factor to be taken in consideration when assessing the totality of the circumstances.”); United States v. Gay, 774 F.2d 368, 377 (10th Cir.1985) (holding that de...