June 21, 2013 – It was legal for police to enter Kenneth Sobczak’s home without a warrant to search and seize his computer when he wasn’t home because his girlfriend was a weekend guest and consented to the search, the state supreme court has ruled.
In 2009, Kristina Podella was staying at Sobczak’s residence for the weekend in Hartford. The two had been dating for three months. Sobczak was living with his parents in Hartford, but they were gone. Podella was using Sobczak’s laptop with permission while he was away at his bartending job when she discovered child pornography.
Podella called her grandmother to contact police. Podella came to the door when police arrived at the Sobczak’s home. An officer asked to see the videos on Sobczak’s computer, and Podella told him to come inside to view them in the living room. After viewing the videos, the officer seized the computer, and Sobczek was soon arrested.
In circuit court, Sobczak filed a motion to suppress the computer evidence on the grounds that police searched it without a warrant in violation of his constitutional rights. The Fourth Amendment prohibits warrantless searches, unless an exception applies, including consent. The state argued that police obtained valid consent from Podella.
Both the circuit and appeals courts upheld the search, and a Wisconsin Supreme Court majority (4-2) recently affirmed in State v. Sobczak, 2013 WI 52 (June 20, 2013).
The majority rejected Sobczak’s argument that weekend guests never have actual authority to allow a search of the resident’s property. Instead, the majority relied on several factors to conclude that Podella had actual authority to give consent.
For instance, the majority noted that Podella and Sobczak weren’t just acquaintances – the two were romantically involved, and Sobczak let her stay overnight alone with no restrictions and gave express permission to use his laptop while he was gone.
“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,’ thus favoring a conclusion that he assumed the risk she would let in unwanted visitors,” wrote Justice Michael Gableman, citing United State v. Matlock, 415 U.S. 164 (1974).
Podella had less authority than long-term guests but more than short-term visitors, the majority noted. In any event, she had “actual authority” over the living room and the computer, which validated her consent to enter the living room and search the laptop.
“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,” wrote Justice Gableman, noting the computer was not password protected.
However, the majority explained the limitations of the decision: not all overnight guests have actual authority over all contents of the home. “Rather, her authority to consent to a search was limited to the property that she possessed ‘common authority’ over.”
Chief Justice Shirley Abrahamson wrote a dissenting opinion, joined by Justice Ann Walsh Bradley, concluding that Podella’s consent to search was not valid.
“[T]he houseguest did not have authority to give law enforcement consent to enter the residence,” wrote the chief justice, noting the majority opinion “disregards Wisconsin and United States Supreme Court precedent and rulings in other jurisdictions.”
The dissenters also argued that police lacked consent to search the laptop, because consent to use it was not necessarily consent to open every file. “We do not know whether the defendant provided any parameters on its use,” the dissent states.
Justice Annette Ziegler wrote a concurring opinion, concluding that “Podella possessed sufficient authority to allow the police to enter the home in order to conduct a search of the laptop.” She said that no constitutional challenge would have been brought if police simply took the computer and searched it outside the home.