RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0296p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-3289
v.
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Defendant-Appellant. -
MCCELLON MONTGOMERY,
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 08-00124-001—Gregory L. Frost, District Judge.
Decided and Filed: September 13, 2010
Before: SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge.*
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COUNSEL
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.
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OPINION
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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 (1973), and because the sum of relevant
*
The Honorable Robert J. Jonker, United States District Judge for the Western District of
Michigan, sitting by designation.
1
No. 09-3289 United States v. Montgomery Page 2
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.
No. 09-3289 United States v. Montgomery Page 3
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.
No. 09-3289 United States v. Montgomery Page 4
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. Any consent must be “freely and voluntarily given.”
Bumper v. North Carolina, 391 U.S. 543, 548 (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 (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,
No. 09-3289 United States v. Montgomery Page 5
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 (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. 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 F. App’x 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 F. App’x 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
No. 09-3289 United States v. Montgomery Page 6
consideration when assessing the totality of the circumstances.”); United States v. Gay,
774 F.2d 368, 377 (10th Cir. 1985) (holding that defendant “can be too intoxicated to
operate a motor vehicle, but rational enough to [consent]”).
A related issue arises with Miranda waivers. To be valid, waivers of Fifth
Amendment rights must be “voluntarily, knowingly and intelligently” made. Miranda
v. Arizona, 384 U.S. 436, 444 (1966). Fifth Amendment waiver and Fourth Amendment
consent-to-search inquiries, it is true, are not the same. One difference is that the
involuntariness prong of a Miranda waiver requires “coercive police activity [as] a
necessary predicate,” Colorado v. Connelly, 479 U.S. 157, 167 (1986); United States v.
Dunn, 269 F. App’x 567, 572 (6th Cir. 2008), something generally not required in Fourth
Amendment consent cases, see Schneckloth, 412 U.S. at 241, 247. Another is 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, Moran v. Burbine, 475 U.S. 412,
421–22 (1986) (emphasis added); Miranda, 384 U.S. at 468–69, something not required
in Fourth Amendment consent cases, see Schneckloth, 412 U.S. at 241, 245–49. Still,
cases frequently come up involving Miranda waivers by intoxicated defendants, and the
inquiries overlap in many respects. As in Schneckloth, courts examine the “totality of
the circumstances,” including the suspect’s “age, experience, education, background, and
intelligence, and . . . whether he has the capacity to understand the warnings given him,
the nature of his Fifth Amendment rights, and the consequences of waiving those rights.”
Fare v. Michael C., 442 U.S. 707, 725 (1979).
Under the “knowing and intelligent” prong of a Fifth Amendment waiver, we
have addressed whether drug-impaired suspects could satisfy the test. In Dunn, the
defendant claimed his waiver was unknowing because he was under the influence of
Vicodin and marijuana. 269 F. App’x at 567. Noting credible testimony that the
defendant was “alert, coherent, and lucid,” we upheld the waiver. Id. at 573. In United
States v. Jones, No. 90-3693, 1991 WL 105751 (6th Cir. June 18, 1991) (per curiam),
No. 09-3289 United States v. Montgomery Page 7
we rejected a claim that the defendant did not intelligently waive his Miranda rights on
the grounds that the “question of [defendant’s] incapacitating intoxication, or lack
thereof, was simply a credibility issue,” observing that the lower court had credited the
police officer’s testimony that any intoxication did not affect the defendant’s
“competency or volition.” Id. at *3.
Other circuits, in likewise upholding Miranda waivers, have done so despite drug
impairment. See, e.g., United States v. Burson, 531 F.3d 1254, 1258 (10th Cir. 2008)
(“[D]efendant must be impaired to a substantial degree to overcome his ability to
knowingly and intelligently waive his privilege against self-incrimination.”); United
States v. Cristobal, 293 F.3d 134, 143 (4th Cir. 2002) (“Medical records indicating that
a suspect had been given narcotics, with no supporting evidence as to the effects of those
narcotics (on the individual or even in general) are not sufficient to render a waiver of
Miranda rights unknowing or unintelligent.”); United States v. Casal, 915 F.2d 1225,
1229 (8th Cir. 1990) (“Intoxication and fatigue do not automatically render a confession
involuntary; rather, the test is whether these mental impairments caused the defendant’s
will to be overborne.”). And in a case with facts similar to our own, the Tenth Circuit
held that a hospitalized defendant recovering from gunshot wounds and laboring under
the influence of a painkiller, but who nonetheless was “alert and responsive” during
questioning, knowingly and intelligently waived his rights. United States v. Morris,
287 F.3d 985, 989 (10th Cir. 2002).
In the face of these legal parameters, the district court did not clearly err in
denying Montgomery’s suppression motion. The key problem for Montgomery is the
testimony of the nurse who took primary care of Montgomery, all of which the district
court credited. Even after administering morphine to Montgomery, Nurse Bennett
testified that he remained alert and oriented before, during and after the police
questioned him, and that the morphine did not affect Montgomery’s ability to answer
questions. Bennett, moreover, did not just observe Montgomery’s volitional coherence;
he acted on it. He found Montgomery sufficiently capable of making medical decisions
that he honored Montgomery’s refusal of a catheter. Hospital records corroborate
No. 09-3289 United States v. Montgomery Page 8
Bennett’s testimony. So does the testimony of the two officers at the hospital, who
observed that Montgomery did not seem impaired after he received the pain medication.
The district court did not commit clear error in relying on this evidence, particularly in
relying on the observations of a medical professional, one trained to understand the
effects of medication and one who had relied on Montgomery’s coherence in making
medical decisions over the same period of time.
Montgomery paints a different picture. He emphasizes the serious nature of his
injuries, his initial 10-on-a-scale-of-10 pain level and the 8 mg morphine injection he
received before police questioned him. But the reality that Montgomery was in pain
(a 4 on a scale of 10 at the time of the questioning) and received morphine does not by
itself show impairment. The district court had the benefit of relying on the testimony of
a registered nurse, in addition to the police officers, all of whom testified that
Montgomery had no trouble understanding and answering questions. So long as this
determination is “plausible in light of the record viewed in its entirety,” which it was,
it cannot be clearly erroneous. United States v. Ables, 167 F.3d 1021, 1035 (6th Cir.
1999).
Montgomery also points out that the officers never informed him of his right to
refuse consent. But this fact, whether taken alone or in conjunction with the pain and
medication, does not dispose of the voluntariness inquiry, as the question must be
gauged in light of all of the circumstances, not just some of them. Schneckloth, 412 U.S.
at 227. Montgomery did not present any evidence about his background, such as his
education, intelligence or anything else, suggesting that he did not understand his right
to refuse consent, and of course all of the people present at the hospital at the time
Montgomery gave consent, including at least one with no stake in his answer to the
question (the nurse), thought he had his wits about him.
Yet there was other testimony, Montgomery adds. His girlfriend, Ewing,
testified that he was “not himself” and had difficulty answering questions during the
ambulance ride, and Ewing’s mother testified that Montgomery was “sedated” at the
hospital and unable to talk. Montgomery’s Br. at 9–10. But the district court found their
No. 09-3289 United States v. Montgomery Page 9
testimony to be “confusing, illogical, and the result of bias, prejudice or faulty memory
related to the use of drugs, alcohol, or both.” R.26 at 6. This finding was reasonable in
view of the contrary testimony of the other witnesses, which came with far more
credibility than the testimony of an interested girlfriend and her mom, and in view of the
reality that the district court, unlike us, had a ring-side seat at the proceedings.
III.
For these reasons, we affirm the district court’s denial of the motion to suppress.