2013 WI 52
SUPREME COURT OF WISCONSIN
CASE NO.: 2010AP3034-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Kenneth M. Sobczak,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 338 Wis. 2d 410, 808 N.W.2d 730
(Ct. App. 2012 – Published)
PDC No: 2012 WI App 6
OPINION FILED: June 20, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 4, 2012
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Washington
JUDGE: Patrick J. Faragher
JUSTICES:
CONCURRED: ZIEGLER, J., concurs. (Opinion filed.)
DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
filed.)
NOT PARTICIPATING: PROSSER, J., did not participate.
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
and oral argument by Andrew R. Hinkel, assistant state public
defender.
For the plaintiff-respondent, the cause was argued by
Warren Weinstein, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
2013 WI 52
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2010AP3034-CR
(L.C. No. 2009CF297)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUN 20, 2013
Kenneth M. Sobczak,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. Our Constitution obeys the
"centuries-old principle of respect for the privacy of the
home," Wilson v. Layne, 526 U.S. 603, 610 (1999), and the state
therefore may not intrude into a residence without a warrant
unless it satisfies one of the few and narrowly-drawn exceptions
to the warrant requirement. Welsh v. Wisconsin, 466 U.S. 740,
749 (1984). One exception permits the police to enter the home
when the prosecution can persuade a court that the officer was
invited to cross the threshold by someone authorized by the
defendant to extend such invitations. United States v. Matlock,
No. 2010AP3034-CR
415 U.S. 164, 171 (1974). At issue now is whether Kristina
Podella had that authority when she invited law enforcement to
enter Kenneth Sobczak's residence and view suspicious files on
his computer. The circuit court found that she did have that
authority and accordingly denied Sobczak's motion to suppress,
and the court of appeals agreed. We agree with both the trial
and appellate courts, and consequently affirm the decision of
the court of appeals.
I. BACKGROUND
¶2 The relevant facts are undisputed and taken largely
from the uncontroverted testimony offered at the suppression
hearing. Sobczak and Podella met online and began dating in the
summer of 2009.1 In early-September 2009, approximately three
months into their relationship, Sobczak was living at his
parents' home in Hartford, Wisconsin and Podella was living in
1
More specifically, Officer Nathanial (spelled "Nathaniel"
elsewhere in the record) Dorn testified at the suppression
hearing that Podella informed him that she and Sobczak met
approximately three months earlier and "had been dating." In
Sobczak's statement of facts in his initial brief, Podella
describes Sobczak to Officer Dorn as "her boyfriend of three
months." No party disputes either Officer Dorn's
characterization in his testimony or Sobczak's in his filing——
indeed, the State adopts Sobczak's statement of the facts as its
own and presents only certain additional facts. For
convenience, we will use "romantic," "dating," "girlfriend," and
similar terms in our opinion in discussing the type of
relationship between Podella and Sobczak. We do not thereby
imply that we are drawing a firm line in Fourth Amendment law
based on the degree of intimacy shared by the consenter and the
defendant, though that degree is one factor to be considered
amongst several, and it is one factor we consider here. See ¶20
infra.
2
No. 2010AP3034-CR
Kenosha. At Sobczak's invitation, Podella arrived at the
Hartford residence on Friday, September 4, 2009 to spend the
weekend while Sobczak's parents were away on vacation, planning
to depart on Sunday, September 6. The afternoon of the
following day, Sobczak reported to his bartending job, leaving
Podella alone in the house. Because she had no means of
transportation and was unfamiliar with the town, Podella asked
and received permission from Sobczak to use his personal laptop
to occupy herself in his absence.
¶3 While using the laptop, Podella encountered a video
file that appeared to show underage girls engaging in sexual
behavior. She further observed four or five other videos with
file-names that suggested to her that they might contain child
pornography, but she did not open any of them. Troubled by
these discoveries, Podella called her grandmother and asked her
to call the police, which the grandmother promptly did.
¶4 Officer Nathanial Dorn arrived at the scene shortly
thereafter and Podella met him at the front door of the house.
While standing on the porch, the two spoke for about ten
minutes. During the course of that conversation, Podella
conveyed her suspicions regarding the videos. To quote his
uncontested testimony at the suppression hearing, Officer Dorn
responded as follows:
So I asked her [sic] I'm going to need to view the
video. I said we can either go inside and look at it,
or you can bring it out here; whatever is more
comfortable for you. She said, no, we can go inside
and look at it. She [had been] sitting on the couch
[with the laptop,] which she then pointed out, and I
3
No. 2010AP3034-CR
could see through the front door [that the couch] was
a few feet inside, which was 20 feet inside the front
door.
¶5 Officer Dorn then asked Podella if he could enter the
residence and she answered in the affirmative. Once inside,
Officer Dorn informed Podella, as he later testified, that he
would "have to look at the video to view it." Podella agreed to
help him do so and found the video on the computer, which had
been sitting on the couch throughout the encounter. Having
located the video, Podella pressed play and Officer Dorn watched
the video. Like Podella, Officer Dorn believed that the video
contained child pornography, and he briefly inspected "a couple"
of the other videos that had aroused Podella's suspicions. He
thought that these too depicted child pornography and called his
supervisor for guidance. Officer Dorn's supervisor instructed
him to bring the laptop to the station, and he complied.
II. PROCEDURAL HISTORY
¶6 Sobczak was arrested and charged with possession of
child pornography in Washington County Circuit Court. He filed
a motion to suppress the evidence seized on the ground that it
was taken in violation of his Fourth Amendment rights.2 The
circuit court, Faragher, J., denied the motion to suppress,
concluding that Podella validly consented to Officer Dorn's
2
The motion to suppress also made reference to the Fifth
Amendment, but Sobczak does not raise a Fifth Amendment argument
here.
4
No. 2010AP3034-CR
entry and search.3 In a unanimous, published opinion the court
of appeals affirmed, reasoning that Podella "had actual
authority to consent to the officer's entry into the house and
to the search and seizure of Sobczak's laptop." State v.
Sobczak, 2012 WI App 6, ¶12, 338 Wis. 2d 410, 808 N.W.2d 730.
¶7 Explaining its decision, the panel wrote that "[w]hile
a mere guest in a home may not ordinarily consent to a search of
the premises, the analysis is different when the guest is more
than a casual visitor but instead has 'the run of the house.'"
Id. (quoting 4 Wayne R. LaFave, Search and Seizure, § 8.5(e)
(4th ed. 2011). To resolve whether Podella had the run of the
house in this sense, the court of appeals reviewed Podella's
relationship with the house and the laptop, emphasizing that she
was invited to stay at the house for the weekend and that
Sobczak never contended that he placed any restrictions on her
use of the property or the laptop while alone in the residence.
Id. In light of those facts, the court determined that Podella
did have the run of the house for Fourth Amendment purposes and
"thus had authority to allow the officers to enter the residence
and to search and seize Sobczak's computer." Id. However, the
court took care to highlight the outer boundaries of its
holding, noting that Podella's "authority to consent to a search
was limited to the property that she possessed 'common
3
In its oral ruling, the circuit court appeared to rely
upon a variety of other justifications for upholding the search,
including exigent circumstances, property law, and public
policy, among others. The State does not defend the judgment on
any of these grounds and we do not consider them.
5
No. 2010AP3034-CR
authority' over," which here encompassed the living room into
which she led Officer Dorn and the laptop she presented for his
inspection. Id., ¶13.
¶8 We granted Sobczak's petition for review and now
affirm.
III. STANDARD OF REVIEW
¶9 When ascertaining whether evidence should have been
suppressed as the result of a Fourth Amendment violation, we are
confronted with a mixed question of law and fact. State v.
Buchanan, 2011 WI 49, ¶8, 334 Wis. 2d 379, 799 N.W.2d 775.
First, the circuit court's findings of fact are taken as true
unless clearly erroneous. State v. Sykes, 2005 WI 48, ¶12, 279
Wis. 2d 742, 695 N.W.2d 277. Second, our application of
constitutional principles to those facts is de novo. State v.
Vorburger, 2002 WI 105, ¶32, 255 Wis. 2d 537, 648 N.W.2d 829.
IV. DISCUSSION
¶10 As we explain below, Podella had actual authority to
consent to Officer Dorn's entry and search of the laptop.
Sobczak's motion to suppress was therefore properly denied by
the circuit court and that judgment in turn was properly
affirmed by the court of appeals.
A. FOURTH AMENDMENT BACKGROUND PRINCIPLES
¶11 A cornerstone of our Bill of Rights, the Fourth
Amendment to the United States Constitution forbids law
enforcement from conducting "unreasonable searches and
6
No. 2010AP3034-CR
seizures."4 The Fourth Amendment applies to state officers by
virtue of its incorporation through the Fourteenth Amendment.
Mapp v. Ohio, 367 U.S. 643, 655 (1961); State v. Hess, 2010 WI
82, ¶41, 327 Wis. 2d 524, 785 N.W.2d 568. It has long been
established that the Fourth Amendment places the greatest
protection around the home, as it was drafted in part to codify
"the overriding respect for the sanctity of the home that has
been embedded in our traditions since the origins of the
Republic." Payton v. New York, 445 U.S. 573, 601 (1980)
(footnote omitted); Holt v. State, 17 Wis. 2d 468, 477, 117
N.W.2d 626 (1962) ("A home is entitled to special dignity and
special sanctity."). Due to the constitutional sanctity of the
home, the police may not venture across the threshold without a
warrant except under limited circumstances, on pain of
suppression. Kyllo v. United States, 533 U.S. 27, 31 (2001);
State v. Pinkard, 2010 WI 81, ¶13, 327 Wis. 2d 346, 785
N.W.2d 592. One such exception——"jealously and carefully
drawn"——"recognizes the validity of searches with the voluntary
consent of an individual possessing authority." Georgia v.
Randolph, 547 U.S. 103, 109 (2006) (internal quotation marks and
4
A parallel provision is enshrined in the Wisconsin
Constitution. Wis. Const. Art. I, § 11. Sobczak relies solely
upon its federal counterpart, so our discussion too will be
limited to the U.S. Constitution. In any event, though, we
ordinarily interpret the two identically. See State v. Kramer,
2009 WI 14, ¶18, 315 Wis. 2d 414, 759 N.W.2d 598 ("On only one
occasion in our development of Article I, Section 11
jurisprudence have we required a showing different from that
required by the [U.S.] Supreme Court's Fourth Amendment
jurisprudence.").
7
No. 2010AP3034-CR
citation omitted); see generally State v. McGovern, 77
Wis. 2d 203, 252 N.W.2d 365 (1977). In order to preserve the
integrity of the warrant requirement, when the State seeks to
admit evidence searched or seized without a warrant on grounds
of lawful consent, it must prove, by clear and convincing
evidence, that it obtained such consent. State v. Tomlinson,
2002 WI 91, ¶21, 254 Wis. 2d 502, 648 N.W.2d 367. As a factual
matter, the parties agree that Podella consented to Officer
Dorn's entry and search. They disagree as to whether the Fourth
Amendment empowered her to offer such consent. As we show
below, it did.
B. WEEKEND GUESTS ARE NOT PER SE EXCLUDED FROM GRANTING
THIRD-PARTY CONSENT TO ENTER A HOME AND CONDUCT A SEARCH
THEREIN
¶12 The U.S. Supreme Court has recently reiterated that
the Fourth "Amendment establishes a simple baseline, one that
for much of our history formed the exclusive basis for its
protections: When the Government obtains information by
physically intruding on . . . houses . . . , a search within the
original meaning of the Fourth Amendment has undoubtedly
occurred." Florida v. Jardines, 569 U.S. __, 133 S. Ct. 1409,
1414 (2013) (internal quotation marks and citation omitted). It
is undisputed here that the State acquired the incriminating
evidence from the laptop "by physically intruding" into the
home. If the officers so intruded in violation of the Fourth
Amendment, then, the challenged evidence must be suppressed.
See id. at 1417 ("That the officers learned what they learned
8
No. 2010AP3034-CR
only by physically intruding on Jardines' property to gather
evidence is enough to establish that a search occurred," and
since the search was not justified under the Fourth Amendment
the evidence seized was properly excluded). Thus the question
for us is whether Officer Dorn had the constitutional authority
to enter the home and search the laptop.5 He did.
¶13 Sobczak's principal argument is that Podella could not
have had actual authority to consent to Officer Dorn's entry to
the house and living room because she was merely a weekend
guest. In his view, the exception set forth by Matlock is
limited to "co-occupants" and "co-inhabitants," and does not
cover those with shorter stays like Podella. Effectively,
Sobczak asks us to draw a bright-line rule focused solely on the
duration of the consenter's time in the residence. For several
reasons, we decline to do so.
¶14 First, while it is true, as Sobczak points out, that
the U.S. Supreme Court has used the terms "co-occupant" and "co-
inhabitant" in articulating the third-party consent doctrine,
see, e.g., Randolph, 547 U.S. at 109, 111, it has been careful
not to require a slavish devotion to such titles. Instead, the
court has cautioned that the analysis hinges not "upon the law
of property, with its attendant historical and legal
refinement . . . but rests rather on mutual use of the property
5
According to his testimony, Officer Dorn discussed with
Podella the possibility of her bringing the laptop outside the
home for him to inspect it. She never did so, however, so we
need not analyze the constitutionality of that hypothetical
scenario.
9
No. 2010AP3034-CR
by persons generally having joint access or control for most
purposes . . . ." Matlock, 415 U.S. at 171 n.7; cf. Missouri v.
McNeely, 569 U.S. __, 133 S. Ct. 1552, 1564 (2013) ("While the
desire for a bright-line rule is understandable, the Fourth
Amendment will not tolerate adoption of an overly broad
categorical approach that would dilute the warrant requirement
in a context where significant privacy interests are at
stake."). Although Sobczak pays lip-service to this crucial
footnote from Matlock, claiming that it supports his
"commonsensical understanding" as to who possesses authority,
his proposed approach flatly contradicts it. For what would a
single-minded fixation on the often-blurry distinction between
co-occupants, weekend guests, and so on be if not the type of
overly formalistic property-law inquiry that the U.S. Supreme
Court has expressly disavowed in this area?6
6
In a recent decision on a Fourth Amendment question
relating to law enforcement's use of global positioning systems,
the U.S. Supreme Court explained that property law remains
relevant to search-and-seizure jurisprudence in certain
circumstances. See United States v. Jones, 565 U.S. __, 132 S.
Ct. 945, 950 (2012) (clarifying that while some of the court's
cases "deviated from [an] exclusively property-based approach,"
it never renounced the notion that the Fourth Amendment embodies
"a particular concern for government trespass upon the areas"
protected by the Amendment). The Jones court, however, did not
suggest that third-party consent cases must now be viewed
through the lens of formal property law, after United States v.
Matlock, 415 U.S. 164 (1974) said the opposite, and other courts
have not read Jones as working such a dramatic change in the
law. See Braskett v. Fender, 884 F. Supp. 2d 1119, 1130 (D. Or.
2012) (quoting Matlock's repudiation of property law in the
third-party consent context and not mentioning Jones); People v.
Fernandez, 145 Cal. Rptr. 3d 51, 59 (Ct. App. 2012) (same),
cert. granted, 569 U.S. __, __ S. Ct. __, 2013 WL 2149804
(2013); Pryor v. City of Clearlake, 877 F. Supp. 2d 929, 944
10
No. 2010AP3034-CR
¶15 Resisting this inevitable conclusion, Sobczak insists
that the strict weekend guest/co-occupant dichotomy he
constructs to delineate who has authority to consent can be
maintained within the more flexible framework established by the
U.S. Supreme Court. As Sobczak acknowledges, the power to give
consent turns on "widely shared social expectations" and
"commonly held understanding about the authority that co-
inhabitants may exercise in ways that affect each other's
interests." Randolph, 547 U.S. at 111. In other words, the
exception is premised on the axiom that people who "share
quarters . . . understand that any one of them may admit
visitors, with the consequence that a guest obnoxious to one may
nevertheless be admitted in his absence by another." Id.
Sobczak recognizes this language and seeks to turn it to his
advantage, submitting that no such assumption of risk takes
place when a guest is invited to spend the weekend. We are
aware of authority from other jurisdictions to that effect, see,
e.g., People v. Pickens, 655 N.E.2d 1206, 1209 (Ill. Ct. App.
1995), but viewed in relation to the reasoning of the U.S.
Supreme Court's binding case law we think it conceptually
unsound.
¶16 Human nature being what it is, most members of society
do not ground their expectations regarding the potential
(N.D. Cal. 2012) (same). We follow Matlock's dictate on third-
party consent and its separation from property law, as neither
the U.S. Supreme Court nor our own has departed from its
analytical approach.
11
No. 2010AP3034-CR
behavior of guests on formal titles like "co-occupant" and
"weekend guest," divorced from all context. Cf. State v.
Kieffer, 217 Wis. 2d 531, 544, 577 N.W.2d 352 (1998) (stressing
that the familial relationship of the consenter to the defendant
is one non-dispositive factor among others). Nor should they,
as not all "weekend guests" are created equal. As counsel for
the State astutely noted at oral argument, a college student
home for the weekend enjoys a very different status than a
casual acquaintance left momentarily at a home while the owner
runs an errand. It would be absurd to sanction a police officer
for entering a home after being let in by a college student who
had spent, say, 18 of his 20 years living at the residence
solely because he was, at that particular time, merely a
"weekend guest." Society is not so irrational.7
¶17 The only binding authority that is arguably at odds
with our conclusion is Illinois v. Rodriguez, 497 U.S. 177
7
Instructively, the approach we take today was followed by
a court that reached the opposite outcome, but did so not with
reference to the inflexible rule advocated by Sobczak, but
rather in consideration of the quality of the relationship
between the consenter and the premises. In that decision,
Cardenas v. State, the Texas Court of Appeals declared, "At
best, [the consenter] was merely a" passing acquaintance who
happened to spend the night. "Consequently," the court
reasoned, "he did not have actual authority to consent to the
officer's entry." 115 S.W.3d 54, 60 (2003) (citation omitted).
The distinction between a passing acquaintance who happens to
spend the night like the consenter in Cardenas and an overnight
guest in a romantic relationship with the defendant is precisely
the type of distinction that alters the "widely shared social
expectations" regarding access and risk that guide our inquiry.
Georgia v. Randolph, 547 U.S. 103, 111 (2006).
12
No. 2010AP3034-CR
(1990). There, the U.S. Supreme Court reviewed a case in which
a woman named Gail Fischer had lived with the defendant for
several months but left almost a month before the challenged
search, taking her children's clothing with her but leaving
behind various pieces of furniture and other objects. Id. at
181. After moving out, Fischer occasionally stayed overnight at
the defendant's apartment, to which she had a key, though she
did not invite friends, did not go when he was not there, did
not have her name on the lease, and did not contribute to the
rent. Id. In a cursory two sentences,8 the court dismissed the
possibility that Fischer had actual authority to consent to a
search of the apartment, calling the lower court's rejection of
that assertion "obviously correct." Id. at 181-82.
¶18 Sobczak reasonably regards this passage as most
helpful to his cause, seeing as how Fischer was in some senses
more closely associated with the searched premises than was
Podella, as she had lived there in the past, had left belongings
there, and had a key.9 Id. It is an argument with some
8
The full passage reads, in its entirety: "On these facts
the State has not established that, with respect to the South
California apartment, Fischer had 'joint access or control for
most purposes.' To the contrary, the Appellate Court's
determination of no common authority over the apartment was
obviously correct." Illinois v. Rodriguez, 497 U.S. 177, 181-82
(1990).
9
Though it was unclear whether she obtained the key with
the defendant's permission. Rodriguez, 497 U.S. at 181.
Officer Dorn testified that he had no recollection whether he
asked Podella if she had a key to the residence, and we
consequently cannot base our decision on a finding that she did.
13
No. 2010AP3034-CR
persuasive force. In the final analysis, however, we must
follow the underlying logic of the Supreme Court in its
definitive pronouncement on the subject, not a passing remark in
an opinion almost entirely devoted to other issues.10 Matlock is
the law on actual authority in third-party consent cases, and
Matlock directs us to consider the "widely shared social
expectations" and "commonly held understanding" that give rise
to an assumption of risk that an individual in one's domicile
may admit others. As we have explained, such considerations are
10
The dissent's characterization of our comments on
Rodriguez borders on the disingenuous. It accuses us of
"reject[ing] the Supreme Court's holding as 'cursory'" when it
was instead "measured and deliberate . . . ." Dissent, ¶74
(emphasis added). Though the dissent prefers to pretend
otherwise, Rodriguez contains three holdings: 1) the consenter
had no actual authority; 2) the state court relied upon federal
and not state law; and 3) a remand was necessary for a
determination of whether there was apparent authority. See
generally Rodriguez, 497 U.S. 177. The section deemed "measured
and deliberate" by the dissent takes up one paragraph, contains
a single citation (to Matlock), and includes no substantive
analysis. Id. at 181-82. In stark contrast, Justice Scalia
devoted 10 paragraphs, 6 pages, and citations to 13 different
cases to resolve the third issue. One need not be a
constitutional scholar to readily detect the court's principal
motive for taking up and deciding the case: it was to establish,
for the first time, the new doctrine of apparent authority
(which required the court to find no actual authority), not to
recite a bare-bones summary of a doctrine that was already 16-
years old at the time and then apply it without any substantive
analysis. That is not to say that we can ignore Rodriguez's
words concerning actual authority, and we do not do so. Unlike
the dissent, however, we opt not to bury our heads in the sand
regarding the context of Rodriguez and Matlock in attempting to
resolve the tension between the two.
14
No. 2010AP3034-CR
incompatible with a blanket refusal to grant some weekend guests
the authority to consent.11
¶19 In sum, as with most search-and-seizure cases, the
question of whether law enforcement acted reasonably within the
meaning of the Constitution here depends not upon the
application of a rigid rule like the one Sobczak proposes, but
upon "the peculiar facts and circumstances" of the case. State
v. Pires, 55 Wis. 2d 597, 609, 201 N.W.2d 153 (1972) (footnote
omitted); see also McNeely, 133 S. Ct. at 1564 ("[A] case-by-
case approach is hardly unique within our Fourth Amendment
jurisprudence. Numerous police actions are judged based on
fact-intensive, totality of the circumstances analyses rather
than according to categorical rules . . . ."). With respect to
third-party consent, there are certain types of "peculiar facts
and circumstance" that deserve special attention. The Matlock
court explained that what grants authority to a third party to
consent is "common authority over or other sufficient
relationship to the premises or effects sought to be inspected."
415 U.S. at 171 (footnote omitted). It follows that the courts
must explore any facts that bear on that authority and that
11
The dissent describes our opinion as "refus[ing] to
recognize" Rodriguez as binding. Dissent, ¶74. Untrue. We
acknowledge, as we must, that Rodriguez is binding, but so too
is Matlock, and the result of the former is incompatible with
the test set forth by the latter. It is not a novel situation
for tension to exist between two binding precedents. When it
does, we discharge our constitutional duty as a law-developing
court better by honestly grappling with the tension, as we have
done here, rather than ignoring it, as the dissent elects to do.
15
No. 2010AP3034-CR
relationship to assess whether the third party had actual
authority to consent. See Kieffer, 217 Wis. 2d at 542 ("[I]t is
the sufficiency of the consenting individual's relationship to
the premises to be searched . . . that the State must
establish."). In McGovern we did just that, affirming the
suppression of evidence seized on grounds of third-party consent
because there was nothing in the record to reflect mutual use of
the property, joint access or control, "or that the room's
occupants assumed the risk one of their number might permit the
common area to be searched." 77 Wis. 2d at 215.
¶20 To date, we have had little opportunity to elaborate
on the specific factors that weigh on whether an individual has
the constitutional authority to invite law enforcement into the
home of another. This case requires us to expand the list.
First, the relationship of the consenter to the defendant is
important, not only in the familial sense, Kieffer, 217
Wis. 2d at 544, but also in terms of the social ties between the
16
No. 2010AP3034-CR
two. A romantic12 relationship, for example, gives rise to
different expectations than does a passing acquaintance or a
purely economic connection. See, e.g., Chapman v. United
States, 365 U.S. 610, 616-17 (1961) (holding that a landlord
could not consent to a search of a tenant's home). Second, the
duration of the consenter's stay in the premises can shed light
12
We are perplexed by the dissent's concern over our
occasional use of the words "romantic" and "intimate." See
dissent, ¶¶62-64. While the dissent is troubled that the terms
"girlfriend" and "dating" are undefined, it provides no
definition for the apparently crucial word "romantic." As we
have noted, we use "romantic" merely to indicate that Sobczak
and Podella enjoyed a more intimate association than, say,
strangers or passing acquaintances. See supra ¶2 n.1. The
dissent appears to assume that the term "romantic" applies only
to star-crossed lovers of the Romeo and Juliet variety. While
we admire the dissent's idealism, we use the word in the more
pedestrian sense to convey an intimate, personal relationship.
Prior to today's protestations from the dissent, we would not
have thought such a use controversial. See, e.g., Lasure v.
Commonwealth, 390 S.W.3d 139, 140 (Ky. 2012)("Thereafter,
Lasure's relationship with Tolliver became romantic and the two
began casually dating."); Tex. Fam. Code Ann. § 71.0021(b) (West
2013) (defining "dating relationship" as "a relationship between
individuals who have or have had a continuing relationship of a
romantic or intimate nature"). We might just as accurately have
used the term "dating relationship" instead of "romantic
relationship," but because there is no need to do so, we are
comfortable with our chosen nomenclature. At any rate, we agree
with the dissent's more general observation that "[t]he more
distant the relationship [between the consenter and the
resident], the more likely" there is no actual authority.
Dissent, ¶61. When all is said and done, the dissent's quibble
regarding our terminology serves more as a smokescreen for its
dubious application of this general principle than as the
articulation of a meaningful dispute. For the only real upshot
of the dissent's lengthy exegesis on the nature of romance is
that it considers a girlfriend of three months to be a distant
association under the Fourth Amendment. Neither society nor the
Constitution shares that groundless assumption.
17
No. 2010AP3034-CR
on her authority to allow visitors in, though, as we have
demonstrated, that alone does not settle the question.13 See,
e.g., Commonwealth v. Lopez, 937 N.E.2d 949, 957 n.9 (Mass.
2010) (including the duration of the guest's stay as a factor in
the determination of actual authority to consent). Third, a
defendant's decision to leave an individual in his home alone
helps support an inference that the individual has been given
some choice in excluding some visitors and opening the door to
others. See, e.g., United States v. Sanchez, 608 F.3d 685, 689
(10th Cir. 2010) (noting that the consenter was regularly left
13
In rather overheated prose, the dissent remarks that
"federal and state courts alike have held the line, refusing to
recognize that temporary guests, without more, have actual
authority to consent." Dissent, ¶79. Drama aside, the
insertion of the caveat "without more" strips this sentence of
any discernible content. Certainly the Fourth Amendment does
not permit the police to rifle through a person's drawers at the
behest of a complete stranger invited into a foyer for five
minutes. If that is what the dissent means to say, its
statement is quite right, and quite beside the point, as Podella
does not remotely fit that description. If instead the dissent
means to imply that a non-resident can never offer consent, that
is simply not the law. The leading treatise on Fourth Amendment
jurisprudence notes the "sound authority" that allows a guest
who has "the run of the house" to consent "to a police entry
into an area where a visitor would normally be received." 4
Wayne R. LaFave, Search and Seizure, § 8.5(e) (5th ed. 2012).
LaFave is routinely cited in search and seizure cases, including
in numerous decisions by this court and the U.S. Supreme Court.
See, e.g., State v. Sveum, 2010 WI 92, ¶33, 328 Wis. 2d 369, 787
N.W.2d 317; Arizona v. Gant, 556 U.S. 332, 345 n.5 (2009). More
to the point, the rule enunciated in § 8.5(e) is cited to seven
opinions and has, in turn, been cited in jurisdictions around
the country. See, e.g., State v. Morse, 123 P.3d 832, 837-38
(Wash. 2005); Hilbish v. State, 891 P.2d 841, 848 (Alaska Ct.
App. 1995). The dissent's assertions notwithstanding, we break
no new legal ground here.
18
No. 2010AP3034-CR
alone in the home as one of the reasons supporting a finding of
actual authority). Of course, the longer a person is left alone
in the home, the more likely she will have authority to consent.
See, e.g., Davis v. State, 422 S.E.2d 546, 549 (Ga. 1992)
(mentioning the limited time period for which the consenter was
left alone in the home in finding a lack of authority to
consent). Finally, there are the various other miscellaneous
facts that may illuminate the depth of an individual's
relationship to the premises, such as whether she has been given
a key, whether she keeps belongings in the home, whether her
driver's license lists the residence as her address, and so on.
See State v. St. Martin, 2011 WI 44, ¶18 n.10, 334 Wis. 2d 290,
800 N.W.2d 858, cert. denied, 565 U.S. __, 132 S. Ct. 1003
(2012).14
¶21 We now apply these factors to the facts at hand.
C. PODELLA HAD ACTUAL AUTHORITY TO CONSENT TO OFFICER DORN'S
ENTRY INTO THE HOME AND THE LIVING ROOM
¶22 An application of the factors enumerated above to the
facts of the instant case can lead to but one conclusion:
Podella had actual authority to invite Officer Dorn into
Sobczak's parents' home. Notably, Podella was Sobczak's
girlfriend of three months. It is safe to presume that such an
14
We hasten to add that the list above is not exclusive but
rather composed with an eye to the facts of the case at bar.
Other searches will no doubt implicate other factors that may
assist in the inquiry. For a more extensive list of potential
factors, see, e.g., United States v. Groves, 530 F.3d 506, 509-
10 (7th Cir. 2008).
19
No. 2010AP3034-CR
intimate relationship imbues a person with more authority than
she would otherwise have vis-à-vis her partner and his home.
See, e.g., United States v. Collins, 515 F. Supp. 2d 891, 902
(N.D. Ind. 2007) (remarking that "a close personal
. . . relationship" between the consenter and the defendant
bolsters a showing of authority to consent) (footnote omitted).
Equally significantly, Sobczak encouraged Podella to spend an
evening alone in the home, and placed no apparent restrictions
on her use of the house. To extend such trust to Podella,
Sobczak must have envisioned her "mutual use of the property"
and her possession of "joint access or control for most
purposes," Matlock, 415 U.S. at 171 n.7, thus favoring a
conclusion that he assumed the risk she would let in unwanted
visitors.15
¶23 We respectfully disagree with the dissent's claim that
Podella did not have joint access or control because "[a]ny
access and control . . . was limited to the temporary access and
control a weekend guest might have when invited to someone
else's home to stay for a short time." Dissent, ¶69. The
15
The dissent maintains that "nothing in the record
supports" our view that Sobczak assumed the risk that Podella
would invite unwanted guests onto the premises. Dissent, ¶58.
However, the fact that the record contains no indication of any
restrictions placed upon Podella's use of the house is itself
evidence that she was granted unlimited use of it, which in turn
reinforces the conclusion that Sobczak assumed the risk of her
welcoming the police into the home. Cf. United States v.
Sanchez, 608 F.3d 685, 689 (10th Cir. 2010) (finding actual
authority in part because "nothing in the record suggests any
restrictions or limitations whatsoever on [the consenter's]
access to or use of any part of the home.").
20
No. 2010AP3034-CR
dissent does not clarify what these limitations must be, and we
find it difficult to imagine they are so substantial as to
eclipse the control she did exercise. Granted, a weekend guest
left in a home alone cannot legally sell the property, but it
seems she can do a great deal else with it. The fact that
Sobczak permitted Podella to stay in the house alone where there
are no indicia that he placed any restrictions on her use of the
property is a powerful sign that she had the authority to bring
Officer Dorn into an area of the home to which visitors would be
expected to come.16
¶24 Lastly, although Podella's weekend invitation does not
put her in the company of long-term guests with more expansive
authority over the premises, it does distinguish her from the
far briefer stays that have occasioned judicial rejection of
claims of authority. See, e.g., United States v. Cos, 498 F.3d
1115, 1128 (10th Cir. 2007) (excluding evidence where the
16
That does not necessarily mean that Podella would have
been entitled to invite Officer Dorn into every area of the
house. If Officer Dorn had conducted the search in a different
room, other facts, such as whether the room was locked, would
presumably have been brought out at the suppression hearing and
those facts would then bear on the Fourth Amendment analysis.
Cf. State v. Vinuya, 32 P.3d 116, 128-32 (Haw. Ct. App. 2001)
(finding actual authority to consent to a search of the common
areas of the house but no actual authority to consent to a
search of the defendant's locked bedroom). That is not the case
before us. We consider Podella's seemingly unrestricted use of
the home only as it relates to her invitation to Officer Dorn to
enter the living room and search the laptop there. We make no
comment regarding any other area of the residence.
21
No. 2010AP3034-CR
consenter was left alone in home for 40 minutes before the
arrival of law enforcement).
¶25 There are, to be sure, considerations cutting in the
opposite direction. In particular, Podella's stay, while not of
the extremely brief duration of the consenter's in Cos, was also
not of the more indefinite length at issue in many third-party
consent cases. See, e.g., Matlock, 415 U.S. at 166 (noting that
the consenter lived at the house with her son). Furthermore,
there is no evidence that Podella had ever stayed in the house
before, that she had been given a key to the residence, that she
was leaving any belongings there or intended to return in the
future, or any other indication of a relationship to the
building that extended beyond the weekend of September 4, 2009.
These omissions are not insignificant, and they make the case a
far closer one that it would otherwise be. Nevertheless, they
are insufficient to outweigh the more compelling factors
militating in favor of authority to consent. Ultimately, we
believe society would expect a girlfriend of three months, left
alone in a home and given unrestricted access to the common
areas of the home, to enjoy the authority to invite guests in to
22
No. 2010AP3034-CR
those common areas, even with potentially deleterious
consequences to her boyfriend.17
¶26 The dissent purports to go through the same balancing
test that we conduct, but it puts its thumb on the scales and
preordains the result by concluding that Podella could not have
had actual authority because "[a]ny access or control" she had
"was clearly inferior to that of the defendant . . . ."
Dissent, ¶69. If the only question for authority purposes was
whether the consenter enjoys the same amount of access to and
control over the property as the defendant, there would be no
need to run through all of the various factors in the list.
Instead, a court could simply search the list for the single
respect in which the consenter's access or control was
"inferior" and then suppress the challenged evidence. That is
plainly not the law. See, e.g., United States v. Kimoana, 383
F.3d 1215, 1222 (10th Cir. 2004) (finding that the consenter had
actual authority to allow law enforcement to search a motel room
because "he had stayed there overnight, left his possessions
17
The dissent chides us for making it "easier for a weekend
houseguest than a co-resident to be accorded authority to
consent to a search of another's residence." Dissent, ¶72. We
have done no such thing. As should be abundantly clear from a
cursory review of our opinion, many of the factors we consider
would quite obviously lend themselves to a stronger case for
authority with a resident than with a weekend guest. For
instance, the duration of a consenting resident's stay would
presumably be indefinite or at least substantial, and such a
person would almost certainly be left home alone at times, would
possess a key, would have belongings at the premises, and so on.
Contrary to the dissent's undefended assumption, the fact that
this weekend guest had authority does not mean that all do.
23
No. 2010AP3034-CR
there, and carried a key to the room" even though he "was not
the registered guest who had paid for the room . . . ."); United
States v. Kim, 105 F.3d 1579, 1582 (9th Cir. 1997) (finding
that the consenter had actual authority to permit police to
search a storage unit because it was leased in his name, even
though the defendant "had the only key to the lock and had
general control over the unit" and even though the consenter
"did not have independent access and, without [the defendant's]
permission, . . . did not have the authority to open the unit
(and never did open it for his own purposes).").
¶27 There can be no doubt that "the Fourth Amendment has
drawn a firm line at the entrance to the house," Payton, 445
U.S. at 590, and it is our duty to zealously guard that line.
See Kyllo, 533 U.S. at 37 ("In the home, our cases show, all
details are intimate details, because the entire area is held
safe from prying government eyes.") (Emphasis in original.) But
the line was crossed here upon valid consent, and Officer Dorn's
entry was therefore within the bounds set by the Constitution.
¶28 Consent to enter a home, however, does not necessarily
confer authority to enter a particular room within the home.
Cf. Florida v. Jimeno, 500 U.S. 248, 251-52 (1991) (discussing
when consent to search a car implies consent to search
containers within the car, and when it does not). The Fourth
Amendment therefore demands a justification for Officer Dorn's
entry to the living room, where the search of the laptop
occurred. That justification is readily apparent. Officer Dorn
testified, without dispute, that the search took place in the
24
No. 2010AP3034-CR
living room, 20 feet inside the front door. Sobczak does not
suggest that he had placed the living room off limits to Podella
during her visit and, given that she was his girlfriend and was
left alone in the home for an evening, it is implausible to
imagine that he would have. As a result, Podella had "joint
access or control" of the living room "for most purposes,"
Matlock, 415 U.S. at 171 n.7, and she was legally entitled to
bring Officer Dorn into that room. Cf. Logan v. State, 729
N.E.2d 125, 130-31 (Ind. 2000) (finding proper third-party
consent to search a living room where there was "nothing in the
record to indicate that police should have been on notice that
the room was anything other than what it appeared to be- a
living room used by all the residents of the home.").
D. OFFICER DORN'S SEARCH OF THE LAPTOP WAS PERFORMED UPON
VALID CONSENT
¶29 Having resolved that Officer Dorn's entry to the home
and living room were constitutionally permissible, the only
question that remains is whether his search of the laptop was as
well.18 For similar reasons, the search did not transgress the
18
Sobczak's position regarding the relationship between the
entry and the search is less than crystal clear. On the one
hand, he repeatedly frames the issue in terms of the search,
characterizing it in one place as whether "Podella, as a weekend
visitor, [had] the authority to subject . . . Sobczak's home and
its contents to a police search." (Emphasis added.) On the
other hand, Sobczak concedes in his reply brief that he is no
longer "assert[ing] an independent privacy interest in his
computer" or "disput[ing] . . . Podella's authority to consent
to its search." We are unsure as to how these two contentions
can be reconciled. Nonetheless, in the interest of clarity and
comprehensiveness, we will address the search.
25
No. 2010AP3034-CR
Fourth Amendment and the exclusionary rule is therefore
inapplicable.
¶30 Liberally construing Sobczak's argument on this
point, we understand him to maintain that even if Podella had
the authority to consent to the entry, she had no authority to
consent to the far more intrusive search of the laptop. To
substantiate that claim, Sobczak surveys a variety of cases in
which a third party let an officer of the law into a home
without inviting a search of the premises. Sobczak's conclusion
that this collection of cases implies that short-term
houseguests can never consent to searches is erroneous because
his premise is flawed. That other courts have sanctioned
entries without searches does not mean that any search following
any such entry is unconstitutional. Indeed, the language of
Matlock compels the contrary conclusion: "when the prosecution
seeks to justify a warrantless search by proof of voluntary
consent, it . . . may show that permission to search was
obtained from a third party who possessed common authority over
or other sufficient relationship to the premises or effects
sought to be inspected." 415 U.S. at 171 (emphasis added)
(footnote omitted). If, in a third-party consent case, the
State must demonstrate that its inspection of the effects was
constitutional in addition to its inspection of the premises, as
Matlock teaches, it stands to reason that the State must
demonstrate that it had consent to examine those effects. Here
that means that after Podella consented to Officer Dorn's entry,
an independent analysis must be performed to determine whether
26
No. 2010AP3034-CR
she consented to a search of the laptop. Cf. United States v.
Karo, 468 U.S. 705, 726 (1984) (O'Connor, J., concurring)
("[W]hen a guest in a private home has a private container to
which the homeowner has no right of access . . . the
homeowner . . . lacks the power to give effective consent to the
search of the closed container."); United States v. Fultz, 146
F.3d 1102, 1106 (9th Cir. 1998) (adopting quoted language from
Justice O'Connor's concurrence in Karo); Commonwealth v. Porter
P., 923 N.E.2d 36, 48 n.11 (Mass. 2010) ("Even if a coinhabitant
of the home had actual authority to consent to a search of the
home, the consent would not extend to a closed suitcase,
overnight bag, or gym bag located inside the home that did not
belong to the coinhabitant.") (citation omitted); United States
v. Smairat, 503 F. Supp. 2d 973, 991 (N.D. Ill. 2007) (applying
the principles above to computers).
¶31 To validate the search of an object within a home on
consent, the government must satisfy the same requirements as
apply to consent to enter, namely, that the consenter had "joint
access or control" of the object "for most purposes." See,
e.g., United States v. Waller, 426 F.3d 838, 845 (6th Cir.
2005). The question of whether Podella had sufficient access or
control of the laptop for most purposes such that she was
constitutionally entitled to allow Officer Dorn to search it is
a far easier one than the question regarding his entry into the
home. Undisputedly, Podella was explicitly granted permission
by Sobczak to use the laptop, and the record contains no
intimations of Sobczak placing any parameters on that use.
27
No. 2010AP3034-CR
Moreover, Podella used the computer in a common area of the
house——the living room——which is where Officer Dorn conducted
the search. It is also relevant that Officer Dorn opened only
those files to which Podella had called his attention; a more
searching examination of the machine occurred only after a
search warrant was obtained. No one involved in the case has
ever averred that the files inspected upon Podella's consent
were password protected, and it is consequently safe to assume
that they were accessible to anyone using the laptop. We
therefore have no difficulty in saying that Podella was
authorized to consent to Officer Dorn's search of the laptop.
See State v. Ramage, 2010 WI App 77, ¶¶7-18, 325 Wis. 2d 483,
784 N.W.2d 746 (upholding the search and seizure of a computer
on consent offered by an individual who was allowed by the
defendant to use the machine without password protection); see
also United States v. Stabile, 633 F.3d 219, 233 (3d Cir.)
(concluding that an individual had authority to consent to a
search and seizure of the defendant's hard drives where the
computer was used by both the consenter and the defendant, was
not password protected, and was located in a common area), cert.
denied, 565 U.S. __, 132 S. Ct. 399 (2011). In short, the
Fourth Amendment permitted Officer Dorn to search the files
Podella had viewed on her consent.
¶32 It is important to underscore the limitations of
today's decision. As the court of appeals cautioned, "We are
not holding that the girlfriend's status as a houseguest gave
her carte blanche to consent to a search of all the contents in
28
No. 2010AP3034-CR
the home. Rather, her authority to consent to a search was
limited to the property that she possessed 'common authority'
over." Sobczak, 338 Wis. 2d 410, ¶13. We agree. Officer Dorn
went only into the living room, a common area of the residence,
and searched only the laptop, an object Podella had been granted
explicit permission to use. For present purposes, it is enough
to say that Officer Dorn's entry and search complied with the
dictate of the Fourth Amendment. Future courts should consider
future cases with this sensitivity to detail in mind.
¶33 Because Podella had actual authority to consent, we
need not——and do not——consider the other issues raised by the
parties: apparent authority, the independent source doctrine,
and the inevitable discovery doctrine. See State v. Cain, 2012
WI 68, ¶37 n.11, 342 Wis. 2d 1, 816 N.W.2d 177 ("In conformity
with our prior practice, we choose to decide this case on the
narrowest grounds possible . . . .") (citations omitted).
V. CONCLUSION
¶34 Our Constitution obeys the "centuries-old principle of
respect for the privacy of the home," Wilson, 526 U.S. at 610,
and the state therefore may not intrude into a residence without
a warrant unless it satisfies one of the few and narrowly-drawn
exceptions to the warrant requirement. Welsh, 466 U.S. at 749.
One exception permits the police to enter the home when the
prosecution can persuade a court that the officer was invited to
cross the threshold by someone authorized by the defendant to
extend such invitations. Matlock, 415 U.S. at 171. At issue
now is whether Podella had such authority when she invited law
29
No. 2010AP3034-CR
enforcement to enter Sobczak's residence and view suspicious
files on his computer. The circuit court found that she did
have that authority and accordingly denied Sobczak's motion to
suppress, and the court of appeals agreed. We agree with both
the trial and appellate courts, and consequently affirm the
decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
¶35 David T. Prosser, J., did not participate.
30
No. 2010AP3034-CR.akz
¶36 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the majority's opinion, and I agree with the majority's
conclusion that the police actions in this case were not
unconstitutional. I write separately to emphasize our
consideration of Podella's authority to consent to the search of
this portable laptop under the facts presented.
¶37 The Fourth Amendment provides that "[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated." A violation occurs "when government officers
violate a person's 'reasonable expectation of privacy.'" United
States v. Jones, 565 U.S. __, 132 S. Ct. 945, 950 (2012)
(quoting Katz v. United States, 389 U.S. 347, 360 (1967)
(Harlan, J., concurring). The purpose of the Fourth Amendment
is to curb abusive police practices by protecting against
unreasonable searches and seizures. See Payton v. New York, 445
U.S. 573, 608 (1980) (White, J., dissenting). The police
engaged in no such abusive practice in the case at issue. Under
these facts and circumstances, law enforcement's entry into this
house, with Podella's consent, and the search of this portable
laptop computer survives constitutional scrutiny.
¶38 Homeowners would be justifiably disturbed if we were
to conclude that an overnight guest possesses the authority to
give carte blanche consent to a police search of their home.
The majority opinion does not provide any such authority to an
overnight guest, such as Podella. There is no dispute that
1
No. 2010AP3034-CR.akz
Podella possessed the authority to allow law enforcement to view
the contents of this laptop computer. Here, evidence of child
pornography was found on this portable laptop, which just
happened to be viewed in the home. Podella requested that law
enforcement view the laptop in the living room. The laptop
could have been viewed anywhere. There is nothing about the
laptop being in this home versus somewhere else that elevates
the police entry under these circumstances to somehow being an
unreasonable search and seizure. There is nothing in this
record that indicates law enforcement was particularly
interested in gaining entry of the home. Instead this record
reflects that law enforcement was interested in viewing the
laptop, wherever it may be viewed, and that Podella was
interested in ensuring that they see the contents of the
computer. Should the fact that law enforcement viewed the
laptop in the living area of the home dictate that the evidence
be suppressed, when it is undisputed that if the laptop were
viewed at the police station, a coffee shop, or some similar
location, no challenge would have been made to the search?1
¶39 A third party may consent to a search when that party
"possessed common authority over or other sufficient
relationship to the premises or effects sought to be inspected."
United States v. Matlock, 415 U.S. 164, 171 (1974) (emphasis
1
If instead of finding child pornography, Podella was
sexually assaulted by the defendant that morning and wished that
law enforcement enter the home to take her statement, would her
statement be suppressed under the logic that law enforcement had
no authority to enter the home?
2
No. 2010AP3034-CR.akz
added). In this case, the effect the police sought to inspect
and did inspect was Sobczak's laptop computer. Sobczak admits
that he gave Podella permission to use the computer. The
majority opinion correctly concludes that Podella had consent to
authorize Officer Dorn to search the files on the computer that
she believed depicted child pornography. See majority op., ¶32
(noting that Podella has explicit consent from Sobczak to use
the computer, that she was using it in a common area of the
house, that Officer Dorn opened only the files suspected to be
child pornography, and that the files were not password
protected).
¶40 In this case, law enforcement entered the home with
the consent (and at the request) of Podella. There is no
evidence that law enforcement was trying to gain entry into the
home for any reason other than to view the laptop's contents.
There is no indication that law enforcement otherwise wished to
search the home or engage in conduct that in any way required
them to gain entry to the home.2 Law enforcement entered the
2
In contrast to the facts and circumstances of this case, a
court will suppress evidence when law enforcement violates a
homeowner's right to privacy by unreasonably searching a home
and recovering evidence that is somehow tied to the home. See
e.g., State v. Stevens, 213 Wis. 2d 324, 326, 328-29, 570
N.W.2d 593 (Ct. App. 1997), aff'd, 217 Wis. 2d 518, 580
N.W.2d 688 (1998) (suppressing cocaine and a gun recovered from
the defendant's bedroom where police attempted a ruse of a pizza
delivery to gain entry into the defendant's home and when that
failed, entered the defendant's home without knocking and
announcing); State v. Sanders, 2008 WI 85, ¶¶13-15, 26, 311
Wis. 2d 257, 752 N.W.2d 713 (suppressing cocaine found in a
canister underneath defendant's bed after police entered
defendant's home without a warrant, arrested the defendant, and
conducted two searches of the defendant's bedroom after the
arrest).
3
No. 2010AP3034-CR.akz
main living area of the home with consent to view a portable
laptop. Podella, not the homeowner, consented to Officer Dorn
entering into the common living area, which was approximately 20
feet from the front door, in order to view the suspicious videos
on Sobczak's computer. After doing so, Officer Dorn took the
laptop to the police station. See majority op., ¶¶4-5. While
law enforcement did view the computer in the home, law
enforcement did not otherwise search the home. In fact, the
police later obtained a search warrant to justify a search of
Sobczak's home.
¶41 As a practical matter, the object of the search——
Sobczak's laptop computer——was a portable object that Podella
could have brought to Officer Dorn for him to view. In the case
at hand, we are confronted with scrutinizing law enforcement's
conduct in a constitutional sense when Podella consented to the
search of this portable object in the common area of this home.
We face this challenge because law enforcement viewed the laptop
in the home instead of elsewhere. See majority op., ¶28 ("There
can be no doubt that 'the Fourth Amendment has drawn a firm line
at the entrance to the house,' and it is our duty to zealously
guard that line.") (quoting Payton, 445 U.S. at 590). We are
not confronted with a situation where the police used the
pretext of searching a laptop to gain entry into a home. A
person has a highly-protected expectation of privacy when it
comes to law enforcement entering his or her home. There is no
evidence in the record that suggests the police conducted a
4
No. 2010AP3034-CR.akz
broader search than was necessary to determine whether the files
Podella found on Sobczak's computer were child pornography.
¶42 In short, I join the majority's opinion, and I agree
with its conclusions that the police actions in this case were
constitutional. Here, a constitutional challenge would not have
been brought had the laptop been viewed in a myriad of other
places. Under these facts and circumstances, Podella possessed
sufficient authority to allow the police to enter the home in
order to conduct a search of the laptop.
¶43 For the reasons set forth, I respectfully concur.
5
No. 2010AP3034-CR.ssa
¶44 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). "When it
comes to the Fourth Amendment, the home is first among equals."1
The rule is that a law enforcement officer who enters a
residence without a warrant is engaging in an unconstitutional
act. Courts have, however, "jealously and carefully drawn"2
exceptions to the rule, one of which posits that an individual
possessing appropriate authority may voluntarily "consent" to
the entry and search of a residence.3 Exceptions to the warrant
requirement, such as voluntary consent, are construed narrowly
because warrants are generally preferable to police action
without a warrant.4
¶45 The question presented in the instant case is: Can a
weekend guest in a residence call the police and authorize a
search of a living room and computer while the resident is at
work? Or is such a search a violation of the resident's
1
Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409, 1414
(2013).
2
Jones v. United States, 357 U.S. 493, 499 (1958).
3
Georgia v. Randolph, 547 U.S. 103, 106, 109 (2006) (citing
United States v. Jones, 357 U.S. 493, 499 (1958)); Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990)).
"'[O]ur law holds the property of every man so sacred, that
no man can set foot upon his neighbour's close without his
leave.' 2 Wils. K.B., at 291, 95 Eng. Rep., at 817. . . .'
[T]he only question is whether he had given his leave (even
implicitly) for them to do so." Jardines, 133 S. Ct. at 1415.
4
Randolph, 547 U.S. at 117.
1
No. 2010AP3034-CR.ssa
constitutional rights under the Fourth Amendment to the United
States Constitution?
¶46 In other words, when is a person authorized under the
law to invite law enforcement into someone else's residence or
to allow law enforcement to search someone else's computer?5
¶47 The majority rules that a one-time weekend guest can
consent to a search of the living room of the residence and the
resident's computer. Yet the majority points to no case in any
jurisdiction holding that a weekend guest under the
circumstances of the present case may validly consent to a
search of another's residence.6
5
No exigent circumstances existed in the present case
justifying a warrantless search of the residence or the
computer. There was plenty of time for law enforcement to get a
warrant. For a discussion of when exigent circumstances may
justify a warrantless search, see Missouri v. McNeely, ___ U.S.
___, 133 S. Ct. 1552 (2013).
6
The majority opinion discusses many cases as a basis for
its holding. In not one of these cases did the court rule that
a non-resident had actual authority to consent to a search of a
residence.
In State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352
(1998), this court held that the defendant's father-in-law
lacked actual and apparent authority to consent to a search of a
loft area above the father-in-law's garage, where the defendant
and his wife were living.
In Chapman v. United States, 365 U.S. 610 (1961), a
landlord did not have actual authority to consent to a search of
a tenant's home.
2
No. 2010AP3034-CR.ssa
In Commonwealth v. Lopez, 937 N.E.2d 949, 958 (Mass. 2010),
an unknown woman who opened the door of the defendant's home had
neither actual nor apparent authority to consent to a search.
Although the Commonwealth conceded the unknown woman did not
have actual authority, the Massachusetts court noted that a
cohabitant is a "person who lives in the home, either as a
member of the family, a roommate, or a houseguest whose stay is
of substantial duration and who is given full access to the
home," and that this cohabitant may have actual authority to
consent to a warrantless search. Lopez, 937 N.E.2d at 956-57
n.9 (quoting Commonwealth v. Porter P., 923 N.E.2d 36 (Mass.
2010)).
In United States v. Sanchez, 608 F.3d 685, 687 (10th Cir.
2010), the United States Court of Appeals for the Tenth Circuit
held that the homeowner's 15-year-old daughter who lived in the
home had actual authority to consent to a search of the home.
In Davis v. State, 422 S.E.2d 546, 549 (Ga. 1992), a 10-
year-old child who lived in the residence did not have
sufficient authority to consent to a search of his parents'
home.
In State v. St. Martin, 2011 WI 44, ¶2, 334 Wis. 2d 290,
800 N.W.2d 858, cert. denied, 565 U.S. ___ (2012), this court
held that a co-tenant's consent is valid as against the absent,
non-consenting co-tenant (citing United States v. Matlock, 415
U.S. 164, 170 (1974)).
In United States v. Collins, 515 F. Supp. 2d 891, 902 (N.D.
Ind. 2007), a wife and son who occupied the home with their
husband/father, the defendant, and had a "close personal and
familial relationship with" the defendant, had actual authority
to consent to a search of their home, where the defendant's
computer was located (citing United States v. Duran, 957
F.2d 499, 504-05 (7th Cir. 1992) (holding that "a spouse
presumptively has authority to consent to a search of all areas
of the homestead . . .")); see also United States v. Ladell, 127
F.3d 622, 624 (7th Cir. 1997) ("A third-party consent is also
easier to sustain if the relationship between the parties——
parent to child here, spouse to spouse in other cases——is
especially close.").
3
No. 2010AP3034-CR.ssa
¶48 The cases regarding consent to search a residence
present a wide variety of consenting persons, including a
landlord, an unknown guest, a resident 15-year-old child, a
In United States v. Groves, 530 F.3d 506, 510 (7th Cir.
2008), a co-occupant had actual authority to consent to a search
when she lived in the residence; registered the residence's
phone in her name; registered her daughter for school using the
residence's address; kept clothes, mail, bills, and drugs at the
residence; cleaned the residence; and had a key and unlimited
access to the residence.
In United States v. Kim, 105 F.3d 1579, 1580-83 (9th Cir.
1997), an employee had actual authority to consent to a search
of his employer's rented storage locker when the employee had
been hired to lease the locker and the lease was in the
employee's name while the employer's name was listed only as an
additional person authorized to access the unit.
In State v. Vinuya, 32 P.3d 116, 132 (Haw. 2001), the
defendant's mother, who owned and resided in the home with the
defendant, could consent to a search of most of the home, but
did not have actual authority to consent to a search of the
defendant's locked bedroom.
In United States v. Cos, 498 F.3d 1115, 1117-18 (10th Cir.
2007), a woman whom the defendant was dating did not have actual
or apparent authority to consent to a search of the defendant's
home. The woman had spent the night on multiple occasions and
had been alone in the apartment when the defendant went out, but
did not have a key, did not live there, did not pay rent, was
not named on the lease, and did not keep any personal belongings
in the apartment. In Cos, the Tenth Circuit concluded that the
"girlfriend" did not have "mutual use" or "joint access" because
she could not enter the apartment without the defendant's
consent. She was "more like an occasional visitor whom [the
defendant] allowed to visit, rather than one who asserted a
right to access the property jointly with [the defendant]."
Cos, 498 F.3d at 1127.
More importantly, the Cos court recognized that a short-
term dating relationship is not the equivalent of the
relationships that establish a presumption of control: those
between parent and child and between husband and wife. Cos, 498
F.3d at 1128.
4
No. 2010AP3034-CR.ssa
resident 10-year-old child, a non-married co-resident, a
resident spouse, a resident adult child, and a non-resident
houseguest of short duration. Yet none of these cases provides
support for the majority's conclusion.
¶49 In United States v. Matlock, 415 U.S. 164, 171 (1974),
the United States Supreme Court set forth the test applicable to
all consenting persons, explaining that consent depends on
"common authority" and rests "on mutual use of the property by
persons generally having joint access or control for most
purposes" or some "other sufficient relationship to the
premises."7
¶50 The United States Supreme Court has also explained
that a court must examine the circumstances of the consent to
determine whether a consenting party is authorized by law to
give consent8 or whether the consent is sanctioned by the
"commonly held understanding about the authority of co-
7
"The [United States Court of Appeals for the] Ninth
Circuit has summarized post-Matlock cases as requiring that 'a
consent-giver with limited access to the searched property lacks
actual authority to consent to a search. . . . The cases
upholding searches generally rely on the consent-giver's
unlimited access to property to sustain the search.'" Braskett
v. Fender, 884 F. Supp. 2d 1119, 1130 (D. Ore. 2012) (quoting
United States v. Kim, 105 F.3d 1579, 1582 (9th Cir. 1997)).
8
For example, a landlord may be able to show the police a
written lease agreement allowing the landlord to enter the
residence for any purpose and to permit others to enter the
residence.
5
No. 2010AP3034-CR.ssa
inhabitants"9 or by "widely shared social expectations."10 In
consent cases, "widely shared social expectations" are
"naturally enough influenced by the law of property, but not
controlled by its rules."11
9
Randolph, 547 U.S. at 111. The Randolph court, 547 U.S.
at 109 n.2, explained its use of the word "co-inhabitants" as
follows: "Mindful of the multiplicity of living arrangements,
we vary the terms used to describe residential co-occupancies.
In doing so we do not mean, however, to suggest that the rule to
be applied to them is similarly varied."
10
Randolph, 547 U.S. at 111.
11
Id.
For a discussion of the role of both property law and
privacy law in interpretation of the Fourth Amendment, see
Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409 (2013). In
Jardines, the United States Supreme Court ruled that police
conducted an illegal search within the meaning of the Fourth
Amendment when, without a warrant, they used a police dog on the
porch of a home to sniff for drugs inside the home.
Five justices in Jardines relied on property law. The
majority decision, written by Justice Scalia, explained that
"[t]he Katz reasonable-expectations test 'has been added to, not
substituted for,' the traditional property-based understanding
of the Fourth Amendment . . ."(emphasis in original). The
Jardines Court also discussed its recent decision in United
States v. Jones, ___ U.S. ___, 132 S. Ct. 945, 948-52 (2012),
explaining that "[in Jones], we held that tracking the vehicle's
movements was a search: a person's 'Fourth Amendment rights do
not rise or fall with the Katz formulation.'". Jardines, 133 S.
Ct. at 1417 (quoting Jones, 132 S. Ct. at 951-52).
Justice Kagan, joining the Scalia opinion and separately
concurring with two justices, explained that property and
privacy concepts mostly align in Fourth Amendment cases,
writing, "The Court today treats this case under a property
rubric; I write separately to note that I could just as happily
have decided it by looking to Jardines' privacy interests."
6
No. 2010AP3034-CR.ssa
¶51 The application of the Matlock test and the Randolph
"widely shared social expectations" test enables a court to
determine whether it is reasonable to hold that the consenting
party has the authority to consent in his or her own right and
that the resident has "assumed the risk" that the consenting
party might permit the common area or personal effect to be
searched.12
¶52 There are no statutes or case law in Wisconsin
applicable to the present case declaring that a weekend guest of
limited duration has authority to consent to a search of
another's residence.13 So how do we apply the concepts of
"common authority," "widely shared social expectations," and the
resident's assumption of the risk in the present case?
¶53 We have no polls or social science research to advise
us that, according to "widely shared social expectations," a
weekend houseguest under the circumstances of the present case
Justice Kagan went on to explain, "The law of property
'naturally enough influence[s]' our 'shared social expectations'
of what places should be free from governmental incursions. And
so the sentiment 'my home is my own,' while originating in
property law, now also denotes a common understanding——extending
even beyond that law's formal protections——about an especially
private sphere." Jardines, 133 S. Ct. at 1419 (Kagan, J.,
concurring) (citations omitted).
12
Randolph, 547 U.S. at 111 (quoting United States v.
Matlock, 415 U.S. 164, 171, n.7 (1974)).
13
In the two opportunities this court has had to consider
consent by a non-resident, this court has concluded that the
non-resident did not have actual authority to consent. State v.
Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998); State v.
McGovern, 77 Wis. 2d 203, 252 N.W.2d 365 (1977) (a person living
in a tent on the grounds of the residence did not have authority
while in the residence to consent to entry in the residence).
7
No. 2010AP3034-CR.ssa
may consent to a search of the residence or a computer. Do the
houseguest and the resident have "common authority" over the
residence or the computer, that is, do they have "mutual use of
the property because they have joint access or control for most
purposes"?14 Did the resident (here the defendant) assume the
risk of the houseguest's inviting law enforcement into the
residence to search it or the computer?
¶54 Case law sets forth a number of facts for courts to
consider when determining the authority of a third party to
consent to a search of the residence of another. The validity
of the search of the residence or the computer based on third-
party consent requires an intensely fact-specific inquiry, and
slight variations in the facts may cause the results to vary.15
The inquiry into the validity of a consensual search is based on
14
Although Professor LaFave recognizes that a guest may
consent to a search in certain circumstances, he explains:
[A] host and guest cannot be said to have 'common
authority' over the premises, in the sense in which
that phrase is used in Matlock. Generally, it must be
concluded that the host's interest in the premises and
authority to permit a search of them is superior to
that of the guest. This being so, it may be said that
ordinarily a mere guest in premises may not give
consent to search of those premises which will be
effective against the superior interest and authority
of the host.
4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 8.5(e) (5th ed. 2012) (citing United States v. Cos,
498 F.3d 1115 (10th Cir. 2007); People v. Wagner, 304 N.W.2d 517
(Mich. App. 1981); State v. Manns, 370 N.W.2d 157 (Neb. 1985)).
15
United States v. Shelton, 337 F.3d 529, 535 (5th Cir.
2003). See also note 11, supra.
8
No. 2010AP3034-CR.ssa
considerations of both property law and the invasion of
privacy.16
¶55 I have examined Wisconsin case law, federal case law,
and the case law of other states to list the factors courts
examine to determine whether and when a third party has
authority to consent to a search of a residence, that is, what
facts persuade a court to conclude that a third party fits
widely shared social expectations that he or she has authority
to consent.
¶56 The following list of factors is not exclusive or
exhaustive. The factors examine the characteristics of the
16
In Shelton, 337 F.3d at 535-36, the court discussed
viewing consent through the prism of the law relating to privacy
as follows:
Although consent to a search is a well-established
exception to the requirement for a warrant issued on
the basis of probable cause, courts have left the
theory underlying this rule largely unarticulated.
The validity of a consensual search is presumably
based on the premise that a warrant and probable cause
are unnecessary to justify the invasion of privacy
that accompanies a consensual search, because by
consenting, the individual evinces a voluntary
willingness to forgo that privacy. Similarly, third
party consent presumably extends the capacity to give
consent to individuals to whom the one with the
privacy interest has already substantially ceded his
expectation of privacy. . . .
Viewing third-party consent through the prism of
privacy interests enables us to approach the question
of common authority by asking whether A sufficiently
relinquished his expectation of privacy to B, i.e.,
allowed mutual or common use of the premises to the
extent of joint access and control for most purposes,
so that it is reasonably anticipated that B might
expose the same privacy interest to others, even
including law enforcement officers (emphasis added).
9
No. 2010AP3034-CR.ssa
consenting party and the consenting party's relationship to the
resident and to the residence to answer the ultimate question
from Matlock, namely whether the consenting party had "mutual
use of the property" and is a person "generally having joint
access or control for most purposes."
(1) Does the consenting person possess a key to the
residence?17
(2) Does the consenting person live in the residence?18
(3) Does the consenting person claim to be living in the
residence?19
17
State v. St. Martin, 2011 WI 44, ¶18 n.10, 334
Wis. 2d 290, 800 N.W.2d 858 (quoting Groves, 530 F.3d at 509).
The St. Martin test was taken from a longer list of factors
laid out by the Seventh Circuit in United States v. Groves, in
which the court examined 10 factors to determine whether a
defendant's girlfriend had actual or apparent authority to
consent to a search of the defendant's residence.
18
State v. St. Martin, 2011 WI 44, ¶18 n.10, 334
Wis. 2d 290, 800 N.W.2d 858 (quoting Groves, 530 F.3d at 509).
See also Commonwealth v. Porter P., 923 N.E.2d 36, 47-48
(Mass. 2010), explaining:
[A] person may have actual authority to consent to a
warrantless search of a residence by the police only
if (1) the person is a coinhabitant with a shared
right of access to the residence, that is, the person
lives in the home, either as a member of the family, a
roommate, or a houseguest whose stay is of substantial
duration and who is given full access to the home; or
(2) the person, generally a landlord, shows the police
a written contract entitling that person to allow the
police to enter the home to search for and seize
contraband or evidence.
19
United States v. Groves, 530 F.3d 506, 509-10 (7th Cir.
2008) (quoting United States v. Groves, 470 F.3d 311, 319 n.3
(7th Cir. 2006), for its list of factors).
10
No. 2010AP3034-CR.ssa
(4) Does the consenting person have a driver's license
listing the residence as the driver's legal address?20
(5) Does the consenting person receive mail and bills at
the residence?21
(6) Does the consenting person keep clothing at the
residence?22
(7) Do the consenting person's children reside at the
residence?23
(8) Does the consenting person perform household chores at
the residence?24
(9) Is the consenting person's name on the lease for the
premises or does he or she pay rent?25
(10) Does the consenting person keep personal belongings
such as a diary or a pet at the residence?26
(11) Is the consenting person allowed in the residence when
the defendant is not present?27
20
State v. St. Martin, 2011 WI 44, ¶18 n.10, 334
Wis. 2d 290, 800 N.W.2d 858 (quoting Groves, 530 F.3d at 509).
21
Groves, 530 F.3d at 509.
22
Id.
23
Id. at 509-10.
24
Id. at 510.
25
Id.
26
Id.
27
Id.
11
No. 2010AP3034-CR.ssa
(12) Do the consenting person and the defendant have a
relationship to each other or the residence that supports the
conclusion that the person has authority to consent?28
(13) Is the duration of the consenting person's stay in the
residence of sufficient length to support the conclusion that
the person has authority to consent?29
In Groves, the defendant's girlfriend was a co-occupant who
registered her daughter for school using the residence's
address; registered the residence's phone in her name and paid
the monthly bill; kept clothes, mail, bills and drugs in the
residence; regularly cleaned the residence; and had a key and
unlimited access to the residence.
28
Thus, courts have recognized the authority of mature
children, United States v. Sanchez, 608 F.3d 685, 687 (10th Cir.
2010); siblings, People v. Shaffer, 444 N.E.2d 1096 (Ill. App.
Ct. 1982); spouses, United States v. Ladell, 127 F.3d 622, 624
(7th Cir. 1997); United States v. Duran, 957 F.2d 499, 504-05
(7th Cir. 1992); United States v. Collins 515 F. Supp. 2d 891,
902 (N.D. Ind. 2007); and occupants under certain circumstances,
United States v. Turbyfill, 525 F.2d 57, 58-59 (8th Cir. 1975)
(an "occupant of indefinite duration rather than a casual
visitor" who "had the run of the house" could consent to a
search of the residence).
29
The guest has to stay for a "substantial duration" to be
authorized to consent. Turbyfill, 525 F.2d at 58-59.
See also Commonwealth v. Porter P., 923 N.E.2d 36, 47-48
(Mass. 2010), explaining:
[A] person may have actual authority to consent to a
warrantless search of a home by the police only if (1)
the person . . . [is] a houseguest whose stay is of
substantial duration and who is given full access to
the home . . . .
It is difficult to argue with a straight face that one or
two nights is a substantial duration in anything but the life of
a mayfly.
12
No. 2010AP3034-CR.ssa
¶57 I consider all 13 factors, noting that the list is not
exclusive or exhaustive, to determine whether, under Matlock,
the consenting party had "mutual use of the property by persons
generally having joint access or control for most purposes."
Under the totality of the circumstances in the present case, I
conclude that the houseguest did not have authority to give law
enforcement consent to enter the residence.
¶58 The State has the burden to prove by clear and
convincing evidence that a warrantless search was reasonable and
in compliance with the Fourth Amendment.30 Yet the State has
failed to meet its burden to prove that the houseguest had
actual authority to consent to a search because nothing in the
record supports the majority's assertion that the defendant
"must have envisioned [the houseguest's] 'mutual use of the
property' and her possession of 'joint access or control for
most purposes . . . .'" Majority op., ¶22. The record is
distinguished by its singular lack of facts.
¶59 In the present case, the houseguest did not have any
of the characteristics set forth in factors (1)-(10). As I
stated previously, no precedent supports the majority's
conclusion that this houseguest had actual authority to consent.
She did not possess a key, live in the residence, claim to live
there, have a driver's license with the residence's address,
receive mail or bills at the residence, keep clothes there, have
30
State v. Kieffer, 217 Wis. 2d 531, 541, 577 N.W.2d 352
(1998).
13
No. 2010AP3034-CR.ssa
her children or other relatives reside there, perform chores
there, pay rent there, or keep personal belongings there.
¶60 When I look at factor (11), I conclude that the record
shows that the houseguest here was alone in the residence for a
few hours when the owner was not present one afternoon.31
¶61 With regard to factor (12), I note that courts have
repeatedly reinforced the importance of the relationship between
the defendant and the person consenting to the search in
determining the authority of a consenting third party. The more
distant the relationship, the more likely the resident has a
reasonable expectation of privacy in relation to the third party
and to spaces typically perceived as private.
¶62 In the present case, the nature of the relationship is
not in the record. The majority opinion nonetheless assumes an
intimate, romantic relationship. Indeed the entire majority
opinion is premised on an intimate, romantic relationship
supporting the inference that the houseguest was authorized to
consent to others coming into the house.
¶63 In contrast to the majority opinion, the record merely
indicates that the defendant and the houseguest had been
31
The record does indicate that the defendant left sometime
in the afternoon for his evening job as a bartender. The record
indicates that Officer Dorn was dispatched to the residence at
5:32 p.m. Thus, the houseguest was alone in the residence from
sometime in the afternoon when the defendant left for his
evening job until Officer Dorn arrived at 5:32 p.m.
In this brief period of time in the afternoon between when
the defendant left for his evening job and 5:32 p.m., the
houseguest probably spent about an hour away from the residence
walking to and from the nearest gas station to call her grandma.
14
No. 2010AP3034-CR.ssa
"dating" for a few months. The parties' briefs describe the
houseguest as the defendant's "girlfriend," but the officer
testifying at the preliminary examination did not describe her
as a girlfriend. The word "girlfriend" is not defined, and the
relationship between the houseguest and the resident was not
spelled out at the preliminary examination or in any part of the
record or in the briefs. Very little evidence of the
relationship is in the record from which inferences can be made.
¶64 I conclude the State has not met its burden of proof.
Rather, the majority opinion has filled in the gaps in the
State's proffered facts by imaginatively inferring an "intimate"
romance without any proof in the record about the nature of the
relationship.32
32
The majority opinion indicates that the defendant and his
guest were boyfriend and girlfriend, in a romantic, intimate
relationship, which it argues is an important fact to support
its finding that she had actual authority to consent to a search
of at least part of the residence. Majority op., ¶¶2 n.1, 20
n.12, 22, 25, 28. The majority opinion uses the words
"romantic" or "intimate" at least 15 times.
More properly, as the record reveals, the houseguest and
the defendant met online, approximately three months earlier,
and they had been "dating," an undefined term. The majority
apparently assumes that a 22-year-old man is having a romantic,
intimate relationship with a 20-year-old woman whom he invites
over for the weekend while his parents are away.
According to the record, the houseguest lived in Kenosha
and the defendant lived in Hartford, approximately a 90-minute
drive apart. The houseguest apparently did not have a car or a
phone while she was at the defendant's residence. The defendant
had a bartending job which required him to work at night.
I infer from the facts that are in the record that the
defendant and the houseguest had met at least one time before
this fateful weekend because the defendant had a picture of
himself with the houseguest as his computer background.
15
No. 2010AP3034-CR.ssa
¶65 What is clear from the record is that the defendant
and the houseguest did not have a relationship similar to those
in cases in which courts have recognized that actual authority
existed. The houseguest was not a member of the defendant's
family, the defendant's spouse, an estranged spouse or a former
spouse, the defendant's child or sibling, or the defendant's
tenant or co-occupant or guest of substantial duration.
¶66 As to factor (13), the record is clear that the
duration of the houseguest's stay in the residence was to be
short, a weekend.33
¶67 A review of the 13 factors (and any other facts that
were in the record) makes clear that the houseguest did not have
"mutual use of the property by persons generally having joint
access or control for most purposes." The guest had "access" to
the residence for one purpose: to remain in the home on Saturday
afternoon when the defendant went to work. As in United States
v. Cos, 498 F.3d 1115, 1117 (10th Cir. 2007), the houseguest in
the instant case was "more like an occasional visitor whom [the
defendant] allowed to visit, rather than one who asserted a
right to access the property jointly with [the defendant]."
The record does not state how many times the two had
actually met in person before the weekend at issue, or how many
"dates" they had. The record is silent about whether the
houseguest had previously stayed at the defendant's residence.
33
According to the record, the houseguest arrived at the
defendant's residence on Friday and planned to leave on Sunday.
She left, however, on Saturday after filing the complaint. The
actual duration of her stay in the residence was one night and
part of a day.
16
No. 2010AP3034-CR.ssa
¶68 If we are discussing the extent of the houseguest's
"control," the record is absolutely silent on whether she had
any control whatsoever over the residence. Nothing in the
record indicates that she could invite friends over or have them
use any room she occupied or exercise authoritative or
dominating influence over the residence, as a dictionary
definition of "control" contemplates.34 Any inferences regarding
the extent of her control are improper. The record is
absolutely silent on facts from which inferences of control can
be made.
¶69 Any access and control of the houseguest in the
present case was limited to the temporary access and control a
weekend guest might have when invited to someone else's home to
stay for a short time. The houseguest did not share "joint"
access or control, which contemplates that she "shared" an
interest or had a "common interest" in the residence. Any
access or control the houseguest had to the residence was
34
The majority opinion's discussion of the houseguest's
control of the residence is itself internally inconsistent,
making it clear that the majority does not really know how much
control she had while providing poor guidance for future courts.
At one point, the majority opinion takes a broad approach,
explaining that "a weekend guest left in a home alone cannot
legally sell the property, but it seems she can do a great deal
else with it." Majority op., ¶23. Later, the majority opinion
"underscore[s] the limitations of today's decision," explaining
that the houseguest did not have "carte blanche" to consent to a
search of all parts of the house. Majority op., ¶32.
All this leaves me perplexed. The houseguest apparently
can do almost anything "with [the house]." The houseguest
cannot, however, sell the house or consent to a search of
certain parts of it. What about the bedroom where she slept or
kept her clothes?
17
No. 2010AP3034-CR.ssa
clearly inferior to that of the defendant, and not "joint" by
any definition of the word. The use of the premises by the
defendant and the houseguest could not be called "mutual" by any
definition of that word.
¶70 In sum, all that can be gleaned from this evidence-
deficient record is that a weekend houseguest described in the
briefs as a girlfriend but of unknown relationship to the
resident-defendant was given consent to use the defendant's
computer and was left in the residence alone for a few hours on
a Saturday afternoon while the resident-defendant was working.
The record reveals nothing more.
¶71 This record does not support a reasonable inference
that the houseguest has authority to consent to a law
enforcement entry or search of the residence. No precedent
supports the majority's conclusion that such a houseguest has
authority to invite law enforcement officers into the home.
¶72 Under the majority opinion, it is easier for a weekend
houseguest than for a co-resident to be accorded authority to
consent to a search of another's residence. The majority
opinion's rationale is illogical on its face and contravenes
precedent.
¶73 In Illinois v. Rodriguez,35 the United States Supreme
Court concluded that a former girlfriend, who had previously
lived in the defendant's apartment and still occasionally spent
the night and had a key, did not have actual authority to
35
Illinois v. Rodriguez, 497 U.S. 177 (1990).
18
No. 2010AP3034-CR.ssa
consent to a search of the apartment.36 The consenting third
party in Rodriguez has a stronger connection to the resident and
to the residence than the consenting third party in the present
case, yet this court reached a different conclusion than the
United States Supreme Court.
¶74 The Rodriguez case has been cited favorably numerous
times, including in the recent United States Supreme Court
decision in Randolph v. Georgia.37 Yet the majority simply
rejects the Supreme Court's holding as "cursory". Majority op.,
¶17. Justice Scalia may be amused to learn that the majority of
justices of the Wisconsin Supreme Court characterizes his
measured and deliberate approach in Rodriguez as "cursory" and
refuses to recognize it as a binding interpretation of the
Fourth Amendment of the United States Constitution. The simple
fact that the United States Supreme Court reached multiple
conclusions in Rodriguez and chose to spend more time explaining
the doctrine of apparent authority rather than actual authority
36
Id., 181-82.
37
Randolph, 547 U.S. at 106, 109.
19
No. 2010AP3034-CR.ssa
does not diminish the importance of its holding about actual
authority and does not permit us to ignore its holding.38
¶75 In Rodriguez, police were called to the residence of
Dorothy Jackson. There, police were met by Ms. Jackson's
daughter, Gail Fischer, who showed signs of a severe beating and
indicated she had been assaulted by Edward Rodriguez, who
Fischer believed was asleep in his apartment.39 Fischer
consented to travel to the apartment with the police in order to
unlock the door for them with her key. Police learned that
Fischer referred to the residence as "our" apartment, had a key,
and had clothes and furniture there. It is unclear whether
Fischer told the police that she currently lived in the
apartment, but in fact she had lived there for six months with
her two small children and Rodriguez and had moved out a few
38
As the majority opinion explains in ¶18 n.10, the
Rodriguez court applied the Matlock test in holding that the
guest had no actual authority to consent to the search. The
Rodriguez decision directly quotes the Matlock test, explaining
that "the State has not established that . . . [the houseguest]
had 'joint access or control for most purposes.'" Rodriguez, 497
U.S. at 181-82. Nevertheless, the majority opinion asserts that
the Rodriguez result is "incompatible" with the Matlock test.
Majority op., ¶18 n.11. How does tension exist between Matlock
and Rodriguez, as the majority opinion asserts, when one United
States Supreme Court decision directly relies on the standard
put forth in another? The majority opinion attempts to resolve
a nonexistent tension, never distinguishing the facts of
Rodriguez from those in the present case for purposes of
deciding the authority of the houseguest.
39
Fischer indicated that the assault had occurred earlier
in the day. The United States Supreme Court opinion does not
indicate whether Fischer had spent the previous night in the
apartment or the number of hours she spent in the apartment that
day.
20
No. 2010AP3034-CR.ssa
weeks earlier. Even after she moved out, Fischer occasionally
spent the night at Rodriguez's apartment.40
¶76 The question posed to the high court in Rodriguez was
whether Fischer had actual or apparent authority to consent to
the search of Rodriguez's apartment. Justice Scalia addressed
the issue and relied on the Matlock test, that is, there is
authority to consent when there is "common authority" that rests
"on mutual use of the property by persons generally having joint
access or control for most purposes."41 Justice Scalia, writing
for the Rodriguez Court, concluded that on the basis of the
record it was clear that the State had not met its burden of
establishing that Fischer had common authority over the
residence.42
¶77 Although Fischer had a key, had previously lived in
the residence with her children, had clothes and furniture
there, and occasionally spent the night there after moving out,
the Court ruled that Fischer did not have "joint access or
control for most purposes." After this thorough explanation,
Justice Scalia concluded that the lower courts' determination of
no common authority over the apartment was "obviously correct."43
Once Fischer no longer resided there she became a temporary
guest without common authority, like the houseguest in the
40
Rodriguez, 497 U.S. at 179-82.
41
Id. at 181 (quoting United States v. Matlock, 415 U.S.
164, 171, n.7 (1974)).
42
Illinois v. Rodriguez, 497 U.S. 177, 181-82 (1990).
43
Rodriguez, 497 U.S. at 181-82.
21
No. 2010AP3034-CR.ssa
present case. The Court then moved to the issue of apparent
authority, an issue not presented in the instant case.
¶78 The facts in Rodriguez and the present case are
similar: Both Fischer and the houseguest here called the police
to report a crime. Both let the police into the residence in
which they did not live. Although Fischer had a greater
attachment to the apartment, had a closer relationship to the
defendant, had a key, and had spent a longer time in the
apartment than the houseguest in the present case, the United
States Supreme Court held that Fischer did not have actual
authority to consent to the search.
¶79 Following Rodriguez, federal and state courts alike
have held the line, refusing to recognize that temporary guests,
without more, have actual authority to consent. Professor
LaFave explains that "[t]here is sound authority that, at least
when the guest is more than a casual visitor and 'had the run of
the house,' his lesser interest in the premises is sufficient to
render that limited consent effective."44 Professor LaFave takes
the "run of the house" language from United States v. Turbyfill,
525 F.2d 57 (8th Cir. 1975). In Turbyfill, the United States
Court of Appeals for the Eighth Circuit held that an "occupant
of indefinite duration rather than a casual visitor" who "had
the run of the house" could consent to a search of the
residence.45
44
4 Wayne R. LaFave, supra note 14, at § 8.5(e) (emphasis
added).
45
Turbyfill, 525 F.2d at 58-59.
22
No. 2010AP3034-CR.ssa
¶80 Although the majority opinion attempts to offer
"something more" for the houseguest in the present case to
render her more than a casual visitor for a limited duration,
the majority opinion's "offer" is something far less than what
existed in Turbyfill and Rodriguez, and the "something more"
that other courts have carefully required.
¶81 In United States v. Cos, 498 F.3d 1115 (10th Cir.
2007), the United States Court of Appeals for the Tenth Circuit
recognized that a relationship between a man and a woman who
"had dated for a short time" is not the equivalent of
relationships that establish a presumption of control: those
between parent and child and between husband and wife.46
¶82 In Cos, a guest who had been dating the tenant and was
possibly living with him, and clearly had spent the night and
had been left alone in the apartment on multiple occasions, did
not have actual nor apparent authority to consent to a search
when police arrived while she was in the apartment in the
tenant's absence.47
¶83 The Tenth Circuit concluded that the guest was "more
like an occasional visitor whom [the defendant] allowed to
visit, rather than one who asserted a right to access the
property jointly with [the defendant]."48 The facts of Cos are
substantially similar to the facts of this case, and the Tenth
46
Cos, 498 F.3d at 1128.
47
Id. at 1117-18.
48
Id. at 1127.
23
No. 2010AP3034-CR.ssa
Circuit's definition of the guest who cannot consent matches the
houseguest in the present case.
¶84 When the analysis turns to the search of the
defendant's laptop, I agree with the majority opinion that "an
independent analysis must be performed to determine" whether the
houseguest had authority to consent to a search of the
defendant's laptop. Majority op., ¶¶30-31. In contrast to the
position taken by the concurrence, the majority opinion and I
agree: "Courts must independently consider whether a third
party has the authority to consent to a search of a residence
and whether the third party has authority to consent to
particular containers within that residence."49 A computer has
long been analogized to a closed container for Fourth Amendment
purposes.50 Authority to consent to search a room does not
necessarily extend to authority to consent to search closed
containers within that room.51
¶85 "A valid consent to search the closed container must
come from one who has common authority over the effects sought
49
United States v. Smairat, 503 F. Supp. 2d 973, 987 (N.D.
Ill. 2007) (citing Groves, 470 F.3d at 320).
50
See, e.g., United States v. Blas, 1990 WL 265179, *21
(E.D. Wis. 1990) ("[A]n individual has the same expectation of
privacy in a pager, computer or other electronic data storage
and retrieval device as in a closed container . . . .")
51
Smairat, 503 F. Supp. 2d at 987 (citing Rodriguez, 888
F.2d at 523).
24
No. 2010AP3034-CR.ssa
to be inspected, one who has mutual use of the property, and one
who generally has joint access or control for most purposes."52
¶86 Without precedent or analysis, the concurrence asserts
that "it is undisputed" that the defendant's laptop could be
searched wherever police like "in a myriad of other places."
Concurrence, ¶¶38, 42.
¶87 The concurrence turns a blind eye to the Fourth
Amendment's prohibition of unreasonable searches not only of
"persons [and] houses," but also of "papers and effects." The
defendant's computer is one of the defendant's effects. The
Fourth Amendment protects the contents of a computer from
government intrusion whether the computer is found inside or
outside the home.
¶88 A computer is not just another container. It is more
like a filing cabinet or safe ordinarily containing substantial
personal data.53
52
United States v. Waller, 426 F.3d 838, 845 (6th Cir.
2005) (citing United States v. Karo, 468 U.S. 705, 725-26 (1984)
(O'Connor, J., concurring)).
53
Judge Posner recently wrote:
Judges are becoming aware that a computer (and
remember that a modern cell phone is a computer) is
not just another purse or address book. '[A]nalogizing
computers to other physical objects when applying
Fourth Amendment law is not an exact fit because
computers hold so much personal and sensitive
information touching on many private aspects of
life. . . . [T]here is a far greater potential for the
'inter-mingling' of documents and a consequent
invasion of privacy when police execute a search for
evidence on a computer.' . . . At the touch of a
button a cell phone search becomes a house search, and
that is not a search of a 'container' in any normal
sense of that word, though a house contains data.
25
No. 2010AP3034-CR.ssa
¶89 Law enforcement needs a valid exception to the warrant
requirement to engage in a warrantless search of the contents of
the computer. The only exception applicable to the computer in
the present case is consent. No other Fourth Amendment
exception applies.
¶90 Therefore, when addressing whether the houseguest had
actual authority to consent to a search of the computer inside
or outside the home, the court must complete a consent analysis
specifically applicable to the computer. The majority opinion
does so in vain, but the concurrence believes it need not even
go through the motions.
¶91 In State v. Carroll, 2010 WI 8, 322 Wis. 2d 299, 778
N.W.2d 1, this court addressed whether police could search the
contents of a cellular telephone incident to arrest after
noticing an image on the screen that appeared to include illegal
drugs. Our court held that law enforcement cannot search a
cellular telephone (a personal electronic device) without a
United States v. Flores-Lopez, 670 F.3d 803, 805-06 (7th Cir.
2012) (internal citations omitted).
See also Smallwood v. Florida, 2013 WL 1830961, *7, ___ So.
3d ___ (Fla. 2013) ("The most private and secret personal
information and data is contained in or accessed through small
portable electronic devices and, indeed, many people now store
documents on their equipment . . . that, twenty years ago, were
stored and located only in home offices, in safes, or on home
computers.").
26
No. 2010AP3034-CR.ssa
warrant when there is no immediate danger of the data
disappearing before a warrant can be obtained.54
¶92 Thus, the concurrence ignores the established
precedent of this court, which requires law enforcement to get a
warrant to search a personal electronic device when no valid
exception to the warrant requirement applies.
¶93 The ultimate question is whether the houseguest shared
"joint access or control" of the computer "for most purposes."
From the limited record, all we know is that the houseguest was
permitted to use the defendant's computer on the fateful
afternoon "because she was bored and wanted something to do."
The computer belonged solely to the defendant, and the defendant
and the houseguest did not generally share common authority over
it. We do not know whether the defendant provided any
parameters on its use.
¶94 The State has not demonstrated that the defendant
"assumed the risk" that the houseguest who had authority to use
the computer also had authority to open every single file on the
computer, including those containing child pornography, personal
financial records, health information, or other confidential
data.
¶95 For the same reasons that I conclude that the
houseguest did not have actual authority to consent to the
54
State v. Carroll, 2010 WI 8, ¶33, 322 Wis. 2d 299, 778
N.W.2d 1 (citing Arkansas v. Sanders, 442 U.S. 753 (1979)
(Officers with probable cause to believe a suitcase contained
contraband were justified in seizing that suitcase, but the
Fourth Amendment precluded their immediate search of the
suitcase without a warrant.)).
27
No. 2010AP3034-CR.ssa
search of the home, I conclude she also did not have actual
authority to consent to the search of the contents of the
computer. The State has failed to meet its burden to prove that
the houseguest had actual authority to consent to a search of
private computer data. The State did not prove that the
defendant "assumed the risk" that the houseguest would access
his personal files on the computer and invite the police to join
her any more than he would assume the risk that she would open
desk drawers just because she could use the surface of the desk.
¶96 This court's decision today disregards Wisconsin and
United States Supreme Court precedent and rulings in other
jurisdictions.
¶97 For the reasons set forth, I dissent.
¶98 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
28
No. 2010AP3034-CR.ssa
1
State v. Kenneth M. Sobczak
Court: Wisconsin Supreme Court
Date filed: 2013-06-20
Citations: 347 Wis. 2d 724, 2013 WI 52
Copy Citations