Search and Seizure – consent — authority

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Wisconsin Supreme Court

Criminal

Search and Seizure – consent — authority

Where the defendant invited his girlfriend to stay the weekend at his home, she had authority to consent to a search of his computer.

“An application of the factors enumerated above to the facts of the instant case can lead to but one conclusion: 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.”

Affirmed.

2010AP3034-CR State v. Sobczak

Gableman, J.

Attorneys: For Appellant: Hinkel, Andrew, Madison; For Respondent: Weinstein, Warren D., Madison; Bensen, Mark, West Bend