Search and Seizure – consent — authority

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Wisconsin Court of Appeals

Criminal

Search and Seizure – consent — authority

Where the defendant gave his girlfriend permission to use his computer, she had authority to consent to a police officer’s search of the computer.

“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.”

Affirmed.

Recommended for publication in the official reports.

2010AP3034-CR State v. Sobczak

Dist. II, Washington County, Faragher, J., Reilly, J.

Attorneys: For Appellant: Hetzel, Ryan J., West Bend; For Respondent: Weinstein, Warren D., Madison; Bensen, Mark, West Bend