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State Supreme Court to decide if houseguest can consent to warrantless entry

State Supreme Court to decide if houseguest can consent to warrantless entry

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The Wisconsin Supreme Court on Tuesday will hear oral arguments in the matter of State of Wisconsin v. Kenneth M. Sobczak, which could add a new overlay to the state’s ever- evolving search and seizure laws.

The issue in question: If a weekend houseguest has been given “the run of the house,” can she allow police to enter her boyfriend’s residence and seize a computer containing child pornography?

In December 2011, the appellate court affirmed a trial court decision denying suppression of evidence based on the defendant’s allegation that the party consenting to search did not have “actual” or “apparent” authority on which police could rely.

Although the 4th Amendment to the U.S. Constitution does only leave room for limited and measured use of permissible warrantless searches, the appellate court decided that this was one of those circumstances.

If a third party has “mutual use of the property” and “joint access of control for most purposes,” the appellate court concluded, quoting U.S. v. Matlock, 415 US 164 (1974), the access was reasonable.

Case history

On Sept. 5, 2009, police were called to the Hartford residence of Kenneth Sobczak by his girlfriend’s grandmother. Sobczak’s girlfriend, Kristina Podella, hours earlier had called her grandmother after finding what she thought were child porn images on her boyfriend’s computer.

Case: State v. Kenneth M. Sobczak

Oral arguments set for: Dec. 4

Attorney for defendant: Andrew Hinckel, assistant state public defender, Wisconsin

Attorneys for the State of Wisconsin: J.B. Van Hollen, attorney general, and Warren Weinstein, assistant A.G., Wisconsin

Podella had arrived at her boyfriend’s house in Hartford on Friday evening for a weekend stay. She was given the “run of the house” and use of her boyfriends’ computer when Sobczak was away at work on Saturday.

As she passed a portion of the day using Sobczak’s computer, Podella found images and explicit videos that she thought were child pornography. She immediately called her grandmother, who called the police.

A single officer responded to the call. Before entering the house, Officer Nathanial Dorn asked Podella about her relationship with Sobczak, who owned the house, asked why she was at the residence alone and why she was using the computer. Then, Dorn requested that Podella either bring the computer onto the porch or grant him consent to come into the residence to see the computer.

Podella gave consent for Dorn to enter and led the officer to the computer, which was on a couch 20 to 30 feet inside the residence. After Dorn was shown several images and videos, which the officer believed were child pornography, he seized the computer and later obtained a search warrant for the entire residence.

Court history

Sobczak was charged with two counts of child pornography and he immediately moved to suppress the computer evidence. At the suppression hearing, the trial court heard extensive testimony from Dorn and concluded that Podella had authority in her capacity as a guest to allow police to enter the Sobczak residence and examine the laptop.

Sobczak pled no contest and immediately appealed the trial court’s denial of his motion to suppress.

In affirming the trial court decision, the appellate court in part relied upon U.S. v. Matlock, 415 U.S. 164 (1974), as establishing the original foundation for third party-approved searches, which was later further expanded upon by the Wisconsin case State v. Kieffer, 217 Wis. 2d. 531 (1998). In both cases, the courts carefully marked out circumstances where the third party has “common authority” or mutual use of the property and joint access or control for most purposes.

In this case, the appellate court said that Podella “had the run of the house,” explicit authorization to use the computer and no indication of any limit on her use of the premises.

The court also distinguished the defendant’s reliance on both State v. McGovern, 77 Wis.2d 203 (1977), and State v. Verhagen.

“Podella has entire use of and access to the Sobczak house, where the wife in Verhagen and tent dweller in McGovern did not,” the court stated.

In his Wisconsin Supreme Court brief, Sobczak’s counsel argued that the appellate court’s distinction of McGovern and Verhagen was mixing apples and oranges. It is well-established that an “inhabitant” may consent, the defense stated. However, there is no decision from any jurisdiction that has ever sanctioned such a substantial intrusion on the authority of a “temporary guest” or a houseguest as found in this case, counsel added.

    Thus, when cases involving “inhabitants” are removed from consideration, the appellate court’s affirming opinion then heavily relied only on the treatise of Wayne LaFave, in “Search and Seizure: A Treatise on the 4th Amendment.” The relevant passage states: “While a guest may ordinarily not consent to a search, a guest who is ‘more than a casual visitor’ and has ‘the run of the house’ may consent to a police entry into an area where visitors might normally be received.”

    Opposing arguments

    Counsel for the defense strongly asserts that this idea of a slowly expanding search capability into the home runs afoul of a “basic principle of 4th Amendment law that … search and seizures in a house without a warrant are presumptively unreasonable,” and that exceptions are few in number and well documented, citing Payton v. New York, 445 U.S. 573 (1980). Counsel urged the court to more closely follow what he considered the better federal court mandate, where for search and seizure questions, “a line is drawn at the home’s entrance.”

    Counsel for the State of Wisconsin urged the state justices to affirm the appellate court decision, suggesting that the authority for this third-party consent search and seizure was well-grounded in Matlock and Kieffer.

    In particular, the state underscored that Sobczak’s supreme court brief was just challenging the constitutionality of the entry of Dorn onto the premises, not the search of the computer as well.

    And the distinction between consent to search and consent to enter is important, the state noted.

    Counsel for the state pointed to the holding in State v. Tomlinson, 2002 WI 91, where a child of the defendant gave police access to the defendant’s property. There, although a child will not have the same authority as an adult to consent to a search, “a child has some use of the premises, and thus has some authority to grant permission to search,” the state said.

    As applied to Podella’s consent in the current case, counsel for the state suggested that Podella, as an overnight guest, has “some use” of the property during the time she occupies the property. Even if that use is a lesser interest that that of Sobczak, such as the child in Tomlinson, it is a sufficient interest to allow police entry onto the premises.

    A decision is expected later this term.

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