The Sixth Circuit found that McCellon Montgomery was capable of freely and voluntarily giving consent, allowing the police to search his property despite being in the hospital under the influence of morphine within hours of being shot in his back by an unknown assailant.
Montgomery was on his back porch. He was shot with birdshot or buckshot by someone hiding in nearby trees. His girlfriend called the police. The police could not find the shooter but they did see marijuana paraphernalia in the kitchen and the smell of marijuana coming from a shed in the back yard.
While they told Montgomery that they were searching for the shooter they were more anxious to find the marijuana in the shed. He gave consent. Police searched the property and found marijuana upstairs in the house and in the shed. He was charged with possession.
While being under the influence of drugs may result in consent being found to be involuntary, the court looked at other factors and found the consent to be voluntary. The nurse as the hospital testified that Montgomery was alert and oriented. Likewise the officers who asked for Montgomery’s consent found him to be lucid.
Despite testimony from his girlfriend and her mother both of whom testified that he had trouble talking the trial court and the appellate court found him to be capable of giving a knowing and voluntary consent.
But how knowing is the consent if you consent to a search for the assailant while the police search for marijuana?