IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

 )

v. ) CRIMINAL NO. 15-0019-WS

 )

MONTEZ LESHA BISHOP, )

 )

Defendant. )

ORDER

This matter comes before the Court on defendant’s Motion to Suppress (doc. 14) and 

Unopposed Motion to Continue Hearing on Motion to Suppress (doc. 25).1

Defendant, Montez Lesha Bishop, is charged in an eight-count Indictment (doc. 1) with 

various crimes arising from a string of four armed robberies of gas stations / convenience stores 

and a credit union during early December 2014. Of particular significance to the pending 

Motion to Suppress, the Indictment charges Bishop with robbing a New Horizons Credit Union 

in Bay Minette, Alabama, in violation of 18 U.S.C. § 1951(a), and with knowingly brandishing, 

using and carrying a firearm during that offense, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). A 

short time after the New Horizons robbery, law enforcement officers detained Bishop, searched 

his residence, and conducted a recorded, custodial interview.

Bishop’s Motion to Suppress maintains that law enforcement officers violated his 

constitutional rights by conducting a warrantless search of the residence, and by interrogating 

him pursuant to a Miranda waiver that was invalid because of Bishop’s intoxication and mental 

health issues. On that basis, defendant seeks the suppression of all physical evidence seized 

from the residence, as well as Bishop’s statements during the custodial interrogation.

 1 Both the Motion to Suppress and the Motion to Continue are formatted 

improperly as single-spaced documents. Defense counsel is reminded that Local Rule 5.1(a)(1) 

requires that all pleadings, motions, briefs and other papers tendered for filing must be doublespaced.

Case 1:15-cr-00019-WS-N Document 26 Filed 04/03/15 Page 1 of 4
-2-

With regard to the warrantless search of the residence, the Government maintains that the 

search was proper because it was made with the consent of Bishop’s mother, who also lived 

there. Of course, “[a] third party who has common authority over or other sufficient relationship 

to the premises or effects sought to be inspected may give valid consent to search an area.” 

United States v. Harris, 526 F.3d 1334, 1339 (11th Cir. 2008) (citation and internal quotation 

marks omitted); see also Fernandez v. California, --- U.S. ----, 134 S.Ct. 1126, 1129, 188 

L.Ed.2d 25 (2014) (“Our cases firmly establish that police officers may search jointly occupied 

premises if one of the occupants consents.”) (footnote omitted). To demonstrate the requisite 

consent, the Government asserts that Bishop’s mother invited two officers into the home, signed 

a consent form authorizing the search of the residence, and never attempted to withdraw or 

curtail such consent while the home was being searched. In response, Bishop challenges the 

voluntariness of this consent by pointing out that (i) the officers’ narrative recognizes that 

Bishop’s mother was upset and emotional; (ii) the consent form is ambiguous in that it 

repeatedly refers to (and provides a detailed description of) a vehicle as the property for which 

consent is being provided, with the word “vehicle” being scratched out and replaced with 

“residence” in the signature line; and (iii) the mother’s silence once the search of the residence 

commenced does not prove that she consented to it.

“[T]he question of voluntariness is one of fact to be determined from the totality of the 

circumstances.” United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002) (emphasis 

omitted). “The government bears the burden of proving both the existence of consent and that 

the consent was not a function of acquiescence to a claim of lawful authority but rather was 

given freely and voluntarily.” United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989). From 

the limited factual presentation in the Government’s brief, the Court cannot make a conclusive 

determination as to whether Bishop’s mother freely and voluntarily consented to the search of 

her residence. The consent form is highly confusing in that it appears to have been geared 

toward the search of a tan 2002 Chevy Malibu (rather than a residence). Furthermore, Bishop’s 

mother was understandably distraught at the time, and the Court has no information about what 

the officers may have said to Bishop’s mother or what she may have said to them concerning the 

nature and scope of the requested search. Accordingly, the Court agrees with defendant that an 

evidentiary hearing is needed to facilitate a factual determination as to whether Bishop’s mother 

freely and voluntarily consented to the search of the residence.

Case 1:15-cr-00019-WS-N Document 26 Filed 04/03/15 Page 2 of 4
-3-

With regard to the statements Bishop furnished to the police in a custodial interrogation 

after being Mirandized, such a Miranda waiver is effective only where the “totality of the 

circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite 

level of comprehension.” United States v. Barbour, 70 F.3d 580, 585 (11th Cir. 1995). As to the 

latter element, “mental illness is certainly a factor that a trial court should consider when 

deciding on the validity of a waiver. If a defendant cannot understand the nature of his rights, he 

cannot waive them intelligently.” Miller v. Dugger, 838 F.2d 1530, 1539 (11th Cir. 1988). 

Moreover, the Eleventh Circuit has recognized that “a defendant’s impaired mental state 

(whether drug induced or otherwise) may prevent that person from understanding the nature of 

his or her waiver.” Barbour, 70 F.3d at 585. The information now before the Court does not

allow a determination of whether Bishop’s Miranda waiver “was made with a full awareness of 

both the nature of the right being abandoned and the consequences of the decision to abandon it.” 

Id. (citation and internal quotation marks omitted).2 Therefore, an evidentiary hearing is needed 

to receive evidence bearing on whether Bishop was unable (whether because of intoxication or 

mental illness) to appreciate the consequences of abandoning his rights when he gave statements 

to the interrogating officers.

 2 In its brief (doc. 23, at 7), the Government correctly states that mental illness, by 

itself, does not render a confession to have been involuntarily coerced unless law enforcement 

exploited it. See Barbour, 70 F.3d at 585 (“The fact that a defendant suffers a mental disability 

does not, by itself, render a waiver involuntary; there must be coercion by an official actor.”). 

As the Court reads it, however, the Motion to Suppress is actually challenging a legal 

requirement distinct from voluntariness, as Bishop argues that he “was neither able to 

comprehend the constitutional rights that he was purportedly waiving, nor was he able to 

appreciate what it is he was purportedly confessing to.” (Doc. 24, at 3.) Again, “an 

uncounselled statement must be both voluntary and made after a knowing and intelligent waiver 

of the Miranda rights to be admissible.” Miller, 838 F.2d at 1538 (emphasis added); see also 

Smith v. Zant, 887 F.2d 1407, 1427-28 (11th Cir. 1989) (explaining that test for Miranda waiver 

has “two distinct dimensions” and that “[o]nly if the totality of the circumstances surrounding the 

interrogation reveal both an uncoerced choice and the requisite level of comprehension may a 

court properly conclude that the Miranda rights have been waived”) (citations and internal 

quotation marks omitted). “There is little doubt that mental illness can interfere with a 

defendant’s ability to make a knowing and intelligent waiver of his Miranda rights.” Miller, 838 

F.2d at 1539. As such, defendant’s Motion to Suppress remains in play as to the “knowing and 

intelligent” prong of the analysis even in the absence of allegation or evidence of police coercion 

or exploitation of defendant’s purportedly impaired mental state (which goes to the “voluntary” 

prong of the analysis).

Case 1:15-cr-00019-WS-N Document 26 Filed 04/03/15 Page 3 of 4
-4-

Notwithstanding the foregoing, the Court will not set this matter for evidentiary hearing 

at this time. In his Unopposed Motion to Continue Hearing, defendant observes that Bishop has 

been transferred to a facility designated by the Bureau of Prisons for a pretrial psychiatric or 

psychological examination under 18 U.S.C. § 4242(a). (See doc. 17.) This development 

counsels against convening a hearing at this time for three reasons, to-wit: (i) Bishop wishes to 

attend the evidentiary hearing on the Motion to Suppress, and cannot readily do so while

undergoing a competency evaluation outside this district; (ii) the results of this evaluation may 

have a direct bearing on competency issues relating to Bishop’s ability to comprehend and 

appreciate his Miranda waiver; and (iii) the results of the evaluation may be dispositive of the 

case. For these reasons, and because the Government does not oppose the request, defendant’s 

Motion to Continue Hearing on Motion to Suppress (doc. 25) is granted. The parties are 

ordered to file a joint report within ten (10) days after receiving the expert report of the 

examining mental health specialist, setting forth their positions as to whether an evidentiary 

hearing on the Motion to Suppress remains necessary and, if so, when it should occur.

DONE and ORDERED this 3rd day of April, 2015.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

Case 1:15-cr-00019-WS-N Document 26 Filed 04/03/15 Page 4 of 4