Page 43 - September October 2020 TPA Journal

Borden and Biondolillo was noncoercive, because concluding that Jupiter had authority to consent to
it was peaceful, the officers “did not shout at or the officers’ entry. To be valid, consent must be
threaten Jupiter,” and the officers had their given by the defendant or by a third party with
weapons holstered. This supports a finding of vol- actual or apparent authority. Actual authority
untariness. That the officers arrived in the early exists when the third party and the defendant
morning does not necessarily render the knock- “mutually used the property searched and had
and-talk coercive or unreasonable. joint access to and control of it for most purpos-
e s . ”
Second, the district court did not improperly shift Apparent authority exists when “the searching
the burden of proof to Morrison. Morrison claims officers ‘reasonably (though erroneously)
that the United States did not present evidence of believed that the person who has consented to
Jupiter’s awareness of her right to refuse consent, their’ search had the authority to so consent.”
her intelligence, or her belief that incriminating Because Jupiter lived with Morrison, the district
evidence would be found. But the district court court did not clearly err by concluding that she
did not clearly err in concluding that the had actual authority.
Government met its burden on these issues; we
have allowed such conclusions to stand when . . . .
defendants have “presented no evidence that [the
consenting party] was unaware of h[er] right to As to Session and Staggers, we AFFIRM the judg-
deny consent, nor any evidence that [s]he was ment of the district court in all respects. As to
mentally deficient or unable to exercise h[er] free Morrison, we VACATE the conviction and sen-
will in consenting.” Besides, Jupiter’s testimony tence and REMAND to the district court to obtain
indicates she knew that she could refuse consent, additional findings. If the district court again
because she claimed that she “was about to shut denies Morrison’s motion to suppress, it shall
the door” on the officers when they barged in. And reinstate the conviction and sentence.
because the record “leads us to conclude that U.S. V. MORRISON, et. al., 5th Circuit, # 18-
[Jupiter] had at least average intelligence and edu- 31213, June 09th, 2020.
cation,” the district court’s failure to make a spe-
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cific finding on that factor does not merit reversal.
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Last, the district court’s evaluation of the totality
of the circumstances was not clearly erroneous,
because several of the relevant factors indicate
that Jupiter’s consent, if given, was voluntary.
Jupiter was not in custody or arrested, and the
officers did not use coercive procedures. And
Jupiter’s testimony that she retrieved Morrison
while Borden and Biondolillo waited in the living
room evidences cooperation with law enforce-
ment. Paired with the absence of any compelling
evidence of involuntariness, this leads us to con-
clude that the district court did not clearly err
when it found, based on the totality of the circum-
stances, that Jupiter acted voluntarily.

Morrison’s final argument regarding his motion to
suppress is that the district court clearly erred by

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