Last Thursday, a divided Wisconsin Supreme Court handed down a Fourth Amendment decision in State v. Sobczak on a novel issue: When can a weekend guest consent to a law enforcment search of a home computer?
In the case, a girlfriend (Podella) had been dating her boyfriend (Sobczak) for a few months. He invited her to to spend the weekend with him at his parents’ house while his parents were away. Podella was stuck at home all day while Sobczak was at work, and she asked for and obtained permission from him to use his computer while he was away. Podella started using the computer and “encountered” videos containing child pornography. She called her grandmother and asked her to call the cops. When a police officer arrived, he spoke to Podella at the entrance of the house. The officer told her that either she could bring the computer to him at the front of the door or he could enter and see the computer with her permission, and that the choice was hers. She invited the officer in and showed him the computer, which was in the living room area about 20 feet from the entrance to the home. She then clicked on a video file she had seen and showed the video to the officer. The officer agreed that the video was child pornography, and he clicked on a few more links and saw more images. The officer then seized the computer and brought it to the stationhouse. At some point a warrant was obtained to search the computer, but the opinion is not entirely clear on when.
The majority takes the legal issue to be whether Podella could give third-party consent to search the home and the computer, which requires application of the Matlock “common authority” test. According to the majority, Podella had enough of a relationship with the home and the computer to have “common authority” to consent to search it. As a result, the consent was valid and the Fourth Amendment was not violated:
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 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. . . .
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 [another case], 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 those common areas, even with potentially deleterious consequences to her boyfriend.
Podella also had common authority to consent to search the computer:
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.
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.
The Court then stresses the limits of opinion:
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 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.
Justice Ziegler concurred and stressed the narrowness of the majority opinion. Chief Justice Abrahamson dissented. In Abrahamson’s view, the government failed to satisfy its burden to show that Podella could consent to let the officer enter the house:
[Podella] 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 her children or other relatives reside there, perform chores there, pay rent there, or keep personal belongings there. . . .
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. . . .
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.
A few thoughts:
1) I think the majority is right that Podella could allow the officer to enter the living room of the home. In holding that overnight guests have standing to object to a search of the home, the Supreme Court has offered the following characterization of the rights of overnight guests:
From the overnight guest’s perspective, he seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. . . . That the guest has a host who has ultimate control of the house is not inconsistent with the guest’s having a legitimate expectation of privacy. The houseguest is there with the permission of his host, who is willing to share his house and his privacy with his guest. It is unlikely that the guest will be confined to a restricted area of the house; and when the host is away or asleep, the guest will have a measure of control over the premises. On the other hand, few houseguests will invite others to visit them while they are guests without consulting their hosts; but the latter, who have the authority to exclude despite the wishes of the guest, will often be accommodating. The point is that hosts will more likely than not respect the privacy interests of their guests, who are entitled to a legitimate expectation of privacy despite the fact that they have no legal interest in the premises and do not have the legal authority to determine who may or may not enter the household. If the untrammeled power to admit and exclude were essential to Fourth Amendment protection, an adult daughter temporarily living in the home of her parents would have no legitimate expectation of privacy because her right to admit or exclude would be subject to her parents’ veto.
Minnesota v. Olson, 495 U.S. 91, 99-100 (1990) (emphasis added).
This passage states that overnight guests have a “measure of control of the premises” when “the host is away.” Although this passage is hardly free from ambiguity — a “measure of control” isn’t clear about how much of a measure it confers — I would think that the most basic measure of “control” of a house is the ability to invite someone to enter the common areas of the home. If I’m right about that, Podella was exercising that right by allowing the officer to enter the common area of the home when Sobczak was away. Granted, she did so in one of those “unlikely” circumstances in which the guest found evidence of the homeowner’s crime, and the homeowner would not want the guest to invite in the cops. Olson indicates that if the homeowner is present and objects, the homeowner’s veto controls. But the homeowner was not present to object in this case, so I don’t think that conflict of interest matters. See Georgia v. Randolph, 547 U.S. 103 (2006) (“[I]f a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.”)
The dissent argues that the majority’s opinion clashes with Illinois v. Rodriguez, 497 U.S. 177 (1990), but I disagree. In Rodriguez, the government relied on the consent of an ex-girlfriend who had moved out and “never went [to the apartment] herself when [Rodriguez] was not home.” She had the key to the apartment, but there was evidence indicating that she had taken the key without Rodriguez knowing it. As a result, the government hadn’t established that the ex-girlfriend was welcome in the home. In Sobczak, by contrast, Podella was expressly invited to spend the weekend at the home and to stay there while Sobczak was out. Sobczak not only knew she was there; he affirmatively wanted her to be there. I think that’s pretty different from Rodriguez. So on the whole, I think it’s right that the overnight guest could consent to a search of the common area of the home. Cf. United States v. Kimoana, 383 F.3d 1215 (10th Cir. 2004) (overnight guest of registered renter of hotel room has common authority to consent to search of hotel room).
2) Once the officer was inside the home and staring at the computer screen, I think there are two different theories that could approve viewing the first video. The majority relies on the idea that Podella had common authority over the computer. That may be right, although there is an unfortunate absence of factual detail on the point. To be confident about the common authority claim, I would want to know exactly what Sobczak told her about her permitted use of the computer, as well as how it came to be that Podella “encountered” the video. I would want to know that because it’s unclear to me whether the “common authority” test in the case of a computer should act as a binary on/off switch for the whole machine (or at least the files that are not password-protected). It seems plausible that a more nuanced approach is needed that gives the guest user rights to consent to a search of some files but not others, and the majority’s approach doesn’t capture that kind of detail. So maybe that theory works, but maybe it doesn’t.
On the other hand, I think it’s much easier to argue that viewing the video was permitted under a different rationale that the Court does not consider: the private search doctrine. Under United States v. Jacobsen, 466 U.S. 109, 113 (1984), a private actor is allowed to reconstruct a private search and show the results to the police. That’s what Podella did in showing the first video to the officer. Podella came across the videos during a private search, and she affirmatively wanted to the police to see the videos. She showed the officer what she had seen in her private search. Having seen the first video, the officer could seize the contraband in plain view. (It’s at least possible that the same argument could be used to justify the entrance to the home, but there is at least some authority that the Jacobsen reconstruction rule does not apply to allow a search of the home.)
Hat tip: FourthAmendment.com