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Mom Gives Okay to Search, Son Goes Back to Jail

By Peter Clarke, JD on June 09, 2015 3:54 PM

Julian Mitchell appealed his felon-in-possession charge with a classic argument: his mom was too mentally incompetent to consent to the search of her own house. The Eighth Circuit reviewed the appeal with an appropriate amount of sympathy for the poor guy.

The "My Mom Can't Consent to That" Argument

Can a guy's mom give consent for her own house to be searched? Unfortunately for Mitchell, yes she can.

In this case, Mitchell's mother opened the door to the police and indicated that it was her place of residence. The officers noted that she clearly showed familiarity with the place. Looking at the facts, the court couldn't find any reason to believe that the mother lacked a proper mental capacity to consent to the search.

Third Party Consent

When the police searched the residence, they found a firearm belonging to Mitchell. That wasn't good news for someone in Mitchell's position: a felon serving a supervised release. Naturally he would try to suppress this argument by bringing his mom's mental capacity into the equation.

Since the court didn't buy the mental capacity argument, they relied on the general rule for third party consent. Under United States v. Lindsey, officers can carry out a search when a third party demonstrates apparent authority to consent to the search.

There is a narrow exception to this rule from Fernandez v. California: another occupant can render third party consent insufficient. However, the second occupant must be present.

In Mitchell's case, the court notes that he wasn't home with the police made the search. Also, he had suggested to officers previously that he may consider consenting to a search.

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