Third party can consent to seizure

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Long-followed precedent establishes that a joint tenant may consent to a police search of another’s property.

Now, a May 18 opinion by the Wisconsin Court of Appeals extends that rule to permit the third party to also consent to seizure of the property.

Judge Ralph Adam Fine wrote for the court, “The attempt … to restrict valid third-party consents only to searches does not wash.”

David D. Ramage was convicted of eight counts of unlawfully possessing child pornography, based on images found on a computer at a home he shared with Sarah Folger.

He had moved to suppress the images as a violation of his Fourth Amendment rights.

The facts at the hearing established that Ramage permitted Folger to use his computers, and that she did not need a password to do so. In 2005, Folger gave a Milwaukee police detective permission to look at the computers and seize them while Ramage was out of town, provided he returned the computers before Ramage returned the next week.

Because of the child pornography on the computers, Ramage was arrested when he returned.

The circuit court denied his motion to suppress the evidence and the Court of Appeals affirmed.

Ramage based his argument — that the warrant exception for valid third-party consent is limited to searches, not seizures — on two state court cases. People v. Blair, 748 N.E.2d 318 (Ill.App.Ct.2001); and State v. Lacey, 204 P.3d 1192 (Mont.2009).

In Blair, as in the case at bar, police seized a computer belonging to one member of a household, to search for child pornography, based on consent from another member.

In holding the seizure unconstitutional, the Blair court reasoned, “While one who permits a third party access or control over his property has a diminished expectation of privacy, the third party’s access or control does not similarly diminish the owner’s expectation that he will retain possession of his property.” Blair, 748 N.E.2d at 325.

The court in Lacey agreed, citing Blair for support.

Rejecting these precedents as a “crabbed reading of the scope of a valid third-party consent,” the Wisconsin Court of Appeals concluded that the following quote from the U.S. Supreme Court’s opinion in Soldal v. Cook County, 506 U.S. 56 (1992), recognizes that a valid consent permits a seizure: “[I]n the absence of consent or a warrant permitting the seizure of the items in question, such seizures can be justified only if they meet the probable-cause standard, and if they are unaccompanied by unlawful trespass.”

Ramage also argued that, even if the seizure was lawful, police were required to get a warrant before searching it at the police station.

However, the court rejected that argument as well, analogizing the search of the computer to officers developing unprocessed film that has been lawfully seized, an action the Wisconsin Supreme Court approved in State v. Petrone, 161 Wis.2d 530, 468 N.W.2d 676 (1991).

David Ziemer can be reached at [email protected].