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CA6: Defendant on morphine in hospital after shooting could consent; no per se rule

By John Wesley Hall, Jr.

Defendant was shot and in the hospital getting morphine. He consented while under morphine. There is no per se rule that he could not consent, and “per se rules are anathema to the Fourth Amendment.” United States v. Montgomery, 2010 U.S. App. LEXIS 19058, 2010 FED App. 0296P (6th Cir. September 13, 2010): 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...continue to full post

Full post as published by Fourth Amendment on September 16, 2010 (boomark / email).