Consent while hallucinating?

Here is one of those occasional outside the mjWire cases of interest.

The police responded to a 911 call about a “break-in” and a shooting. They found the defendant outside the house, confused and under the likely influence of drugs. The did a “protective sweep” on exigency and found drug stuff. They proceeded to search. The USMJ recommended suppression for lack of a warrant, and the USDJ agrees. The proper recourse was to get a search warrant and not rely on a alleged consent from a man they admit was hallucinating. Motion to suppress granted for lack of a warrant. United States v. Einerson, 2011 U.S. Dist. LEXIS 15633 (D. Neb. February 16, 2011).

Thanks to fourthamendmentblog.