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Search & Seizure: Third-Party Consent – Residential Entry, Search of Laptop

State v. Kenneth M. Sobczak, 2012 WI App 6 (recommended for publication), petition for review granted, 6/13/12; for: Sobczak: Ryan J. Hetzel; case activity

¶6        The issue in this case is whether the girlfriend—as a guest in Sobczak’s parents’ home—had the authority to consent to the officer’s entry into the Sobczak residence and to the search and seizure of Sobczak’s laptop.[1]  We hold that she did

State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998), distinguished:

¶12      In contrast, Sobczak’s girlfriend had actual authority to consent to the officer’s entry into the house and to the search and seizure of Sobczak’s laptop.  While 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.”  4 Wayne R. LaFave, Search & Seizure, § 8.5(e) (4th ed. 2011).  Under those circumstances, the guest may consent to a search of the residence.  Id.  Sobczak’s girlfriend was invited to stay at Sobczak’s house for the weekend.  Nothing in the record indicates that Sobczak restricted her use of the property during the weekend. Sobczak gave her permission to use his laptop and allowed her to stay in the residence by herself while he was at work.  As the Supreme Court said in Matlock, if a third party has “mutual use of the property” and “joint access or control for most purposes,” then the third party may consent to a search of the property regardless of whether he or she owns the property.  Matlock, 415 U.S. at 171, n.7.  The girlfriend thus had authority to allow the officers to enter the residence and to search and seize Sobczak’s computer.

¶13      We stress that our holding is limited to the facts of the case, namely, that the girlfriend had the authority to consent to police entry into Sobczak’s home and to a search and seizure of his laptop.  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 the home.  Rather, her authority to consent to a search was limited to the property that she possessed “common authority” over.  As a weekend houseguest who was permitted to stay in the home by herself, the girlfriend had the authority to receive people into the home, and thus had the authority to permit the officer to enter.  Similarly, Sobczak gave her permission to use his computer, so she had the authority to consent to the officer’s search and seizure of that item.  We make no comment on the other areas of the home that the girlfriend may have had “common authority” over, as it is not germane to this case.

State v. Verhagen, 86 Wis. 2d 262, 272 N.W.2d 105 (Ct. App. 1978), and State v. McGovern, 77 Wis. 2d 203, 252 N.W.2d 365 (1977), also distinguished:

¶16      Neither of these two cases compel the result that Sobczak seeks.  In Verhagen, Mrs. Verhagen was no longer residing in the home and had given up her rights to use and occupy the home.  The only reason she was at the property at the time of the search was to collect her belongings.  She therefore did not share mutual use of the house with Mr. Verhagen.  In McGovern, the individual who consented to the search did not live in the house but rather lived in a tent outside.  Sobczak’s girlfriend, by contrast, was staying at Sobczak’s house for the weekend.  There was no testimony that her use was restricted in any way, and she was allowed to stay in the house by herself while Sobczak was at work.  The girlfriend had the entire use of and access to the Sobczak house that the wife in Verhagen and the tent dweller in McGoverndid not.  Verhagen and McGovern are therefore not controlling.

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