State v. Kenneth M. Sobczak, 2013 WI 52, affirming published court of appeals decision; case activity; majority opinion by Justice Gableman; Chief Justice Abrahamson and Justice Bradley dissent.
In a significant expansion of the third-party consent doctrine, the supreme court holds that a weekend guest may grant consent to police to enter her host’s home and conduct a search. The court concludes the rule governing third-party consent articulated in United States v. Matlock, 415 U.S. 164 (1974), Illinois v. Rodriguez, 497 U.S. 177 (1990), and Georgia v. Randolph, 547 U.S. 103 (2006), is not limited to “co-occupants” or “co-inhabitants” and does not draw a bright line focused solely on the duration of the person’s stay in the home.
Approximately three months after Sobczak began dating Kristina Podella, he invited her to spend the weekend at the home he shared with his parents, who were away on vacation. On Saturday afternoon Sobczak went to work, leaving Podella alone in the house. Sobczak had given Podella permission to use his laptop, and while she was using it she discovered video files she thought contained child pornography. She called her grandmother and asked her to call the police. When an officer arrived Podella met him at the front door. After talking on the porch, the officer said he needed to view the files and asked if he could enter the house to look at the laptop. Podella said yes. Once inside, the officer viewed some of the files, thought they depicted child pornography, and ultimately seized the laptop.
Sobczak was charged with possession of child pornography. He moved to suppress the evidence, arguing Podella did not have authority to consent to the officer’s entry of Sobczak’s home and search of his laptop. The supreme court rejects his arguments:
¶14 …[W]hile 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 by persons generally having joint access or control for most purposes….” Matlock, 415 U.S. at 171 n.7;…
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¶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. … 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 relationship to assess whether the third party had actual authority to consent….
The court then elaborates on the list of specific factors that bear on whether a person has authority to consent to let police into the home of another (¶20):
- “First, the relationship of the consenter to the defendant is important, not only in the familial sense, … but also in terms of the social ties between the two.” A “romantic” relationship, for example, “gives rise to different expectations than does a passing acquaintance or a purely economic connection”–though“[w]e 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.” (¶2 n.1).)
- “Second, the duration of the consenter’s stay in the premises can shed light on her authority to allow visitors in, though, … that alone does not settle the question.”
- “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. … Of course, the longer a person is left alone in the home, the more likely she will have 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.”
Applying these factors to this case, Podella had actual authority to invite the officer into Sobczak’s parents’ home:
¶22 … 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. … 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 “considerations cutting in the opposite direction”—Podella had never stayed in the house before, had not been given a key to the residence, was not leaving any belongings there nor intending to return in the future, and no relationship to the building that extended beyond the weekend:
¶25 …. 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….
The court also finds Podella had authority to consent to the officer’s request to view the videos on Sobczak’s laptop because he had “undisputedly” granted her permission to use it “and the record contains no intimations of Sobczak placing any parameters on that use.” (¶31).
The dissent, citing a more comprehenseive (and somewhat overlapping) list of factors (¶56), concludes the state did not meet its burden to prove actual consent and that the majority “assumes” an intimate relationship that is not clearly established by the record. (¶¶57-71).
To say the Supreme Court “has been careful not to require a slavish devotion” to titles like co-inhabitant or co-occupant (¶14) overstates what little the Court has said on this issue. Of the three leading cases, Matlock has the most discussion, but even that is cursory, its oft-cited test formulated in a footnote. 415 U.S. at 171 n.7. Rodriguez simply applied Matlock to conclude it was “obviously correct” under the facts of the case that the third party didn’t have authority to consent. 497 U.S. at 181-82. Randolph elaborated on Matlock by saying “widely shared social expectations” and “commonly held understanding” were relevant to determining authority to consent, but the real issue in the case was not a particular person’s authority to consent; it was what happens when two cohabitants, both with authority over the property, disagree on whether to consent to the search. (The tie goes to the objector, if he’s “at the door” and objecting). 547 U.S. at 107-08, 114-16, 122-23. These cases say virtually nothing about the significance of terms like “co-inhabitant,” thereby leaving room for the kind of free-form balancing that allows a presumably romantic relationship to become the ultimate factor to the court. (¶¶22, 25).
Further, if Matlock is the “definitive pronouncement on the subject” (¶18), does any guest have “joint access or control” of the property “for most purposes”? To the dissent’s argument (¶69) that Podella had only temporary access and limited control, the majority responds: “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.” (¶23 (emphasis added)). Like what? The decision doesn’t say, and it’s hard to imagine what else, legally, the guest could do.
Of course, Matlock says consent doesn’t rest on the law of property, as the majority points out (¶14). Yet Randolph holds that those “widely shared social expectations” we must consider “are naturally enough influenced by the law of property, but not controlled by its rules.” 547 U.S. at 111, citing Rakas v. Illinois, 439 U. S. 128, 144, n. 12 (1978). (Randolph even cites property law, id. at 112, 114.) And as we’ve noted here, the Court has recently revived the use of property law to help determine whether a search has occurred. E.g., Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1417 (2013). The court here rejects any suggestion this revival changes the third party consent test (¶14 n.6), but perhaps the Supreme Court will have a different view. Even if property rights aren’t dispositive, they should weight heavily against finding that a guest—whether mere acquaintance, long-time friend, or someone a homeowner has been dating for three months—has “joint access or control for most purposes” when he or she has no property rights to speak of.
In the meantime, this case will control third party consent litigation in state court. If you are facing the issue, read the decision for citations to other cases that might be analogous to yours and support a suppression argument. The decision should also be studied for guidance on making a record. The lack of evidence about the nature of Sobczak’s relationship with Podella and any restrictions he may have placed on her use of or access to the house becomes evidence of a lack of restrictions, allowing the court to presume characteristics that weigh in favor of finding consent. A complete record of the limits of the relationship of the guest to the property will be the best defense under this open-ended standard adopted in this case.
UPDATE (6/26/13): Orin Kerr discusses the decision here, saying he thinks the majority is correct to hold Podella could allow the officer into the living room of the home and that the majority’s conclusion doesn’t clash with Rodriguez. (Interestingly, for the proposition that house guests have “some measure” of control over the premises he cites Minnesota v. Olson, 495 U.S. 91, 99 (1990); though in the quotation he reproduces, the Court also says that despite having an expectation of privacy in the host’s home, guests “have no legal interest in the premises and do not have the legal authority to determine who may or may not enter the household.”) He also addresses the officer’s viewing of the laptop in more detail, noting the lack of facts regarding the issue while offering another potential rationale for that search.
