Facts
In 2009, nine year old Farrah spent the night at her grandmother’s house. Dennis Brown is Farrah’s uncle and was living with Farrah’s grandmother, Eva Sylvester. The next day, Farrah told her mother that Brown had sexually assaulted her. Kimberly Willis, who is Brown’s sister and a daughter of Sylvester, asked police to come to Sylvester’s house after the incident.
Investigator Dondi Gibbs searched Brown’s bedroom in the house and seized several pornographic photographs. Brown was convicted of fondling under Mississippi Code Annotated section 97-5-23(1) and dissemination of sexually oriented material under Mississippi Code Annotated section 97-5-27 and sentenced to life. On appeal, Brown argued that the evidence seized from his bedroom should have been suppressed. MCOA affirms.
Analysis
Brown argues that his motion to suppress the evidence from the search should have been granted because Willis did not have authority to consent to the search. Consent to search is not limited to the owner of the property.
A third party can give consent to search if that party possesses common authority, mutual use, and joint control over property not in the exclusive control or possession of the defendant and where the defendant had no reasonable expectation of privacy. Brown v. State, 358 So. 2d 1004 (Miss. 1978).
At the suppression hearing, Brown stated that his mother had not given Willis consent to search. However, Brown did not offer any evidence that his mother did not consent to the search in his motion to suppress or in his argument at the hearing. The State asserted that Willis was the daughter of the home owner, and Gibbs was given verbal consent to search the residence by the owner of the house, Eva Sylvester. Eva Sylvester was unavailable to testify.
Brown failed to present any credible evidence or argument that consent was not given. The trial court relied on the credible evidence before it and did not abuse its discretion in denying the motion to suppress and admitting the photographs. This issue is without merit.
Thoughts
It appears the court relied upon the mother’s oral consent in this matter. We would need to know many more facts about Kimberly Willis’ nexus to that house before we could rely upon her consent.