STATE of Wisconsin, Plaintiff-Respondent, v. Kenneth M. SOBCZAK, Defendant-Appellant-Petitioner.
No. 2010AP3034-CR
Supreme Court of Wisconsin
June 20, 2013
2013 WI 52 | 833 N.W.2d 59 | 348 Wis. 2d 724
Oral argument December 4, 2012.
For the plaintiff-respondent, the cause was argued by Warren Weinstein, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
¶ 1. MICHAEL J. GABLEMAN, J. Our Constitution obeys the “centuries-old principle of respect for the privacy of the home,” Wilson v. Layne, 526 U.S. 603, 610 (1999), and the state therefore may not intrude into a residence without a warrant unless it satisfies one of the few and narrowly-drawn exceptions to the warrant requirement. Welsh v. Wisconsin, 466 U.S. 740, 749 (1984). One exception permits the police to enter the home when the prosecution can persuade a court that the officer was invited to cross the threshold by someone authorized by the defendant to extend such invitations. United States v. Matlock, 415 U.S. 164, 171 (1974). At issue now is whether Kristina Podella had
I. BACKGROUND
¶ 2. The relevant facts are undisputed and taken largely from the uncontroverted testimony offered at the suppression hearing. Sobczak and Podella met online and began dating in the summer of 2009.1 In early-September 2009, approximately three months into their relationship, Sobczak was living at his parents’ home in Hartford, Wisconsin and Podella was living in Kenosha. At Sobczak‘s invitation, Podella arrived at the Hartford residence on Friday, September
¶ 3. While using the laptop, Podella encountered a video file that appeared to show underage girls engaging in sexual behavior. She further observed four or five other videos with file-names that suggested to her that they might contain child pornography, but she did not open any of them. Troubled by these discoveries, Podella called her grandmother and asked her to call the police, which the grandmother promptly did.
¶ 4. Officer Nathanial Dorn arrived at the scene shortly thereafter and Podella met him at the front door of the house. While standing on the porch, the two spoke for about ten minutes. During the course of that conversation, Podella conveyed her suspicions regarding the videos. To quote his uncontested testimony at the suppression hearing, Officer Dorn responded as follows:
So I asked her [sic] I‘m going to need to view the video. I said we can either go inside and look at it, or you can bring it out here; whatever is more comfortable for you. She said, no, we can go inside and look at it. She [had been] sitting on the couch [with the laptop,] which she then pointed out, and I could see through the front door [that the couch] was a few feet inside, which was 20 feet inside the front door.
¶ 5. Officer Dorn then asked Podella if he could enter the residence and she answered in the affirmative. Once inside, Officer Dorn informed Podella, as he
II. PROCEDURAL HISTORY
¶ 6. Sobczak was arrested and charged with possession of child pornography in Washington County Circuit Court. He filed a motion to suppress the evidence seized on the ground that it was taken in violation of his Fourth Amendment rights.2 The circuit court, Faragher, J., denied the motion to suppress, concluding that Podella validly consented to Officer Dorn‘s entry and search.3 In a unanimous, published opinion the court of appeals affirmed, reasoning that Podella “had actual authority to consent to the officer‘s entry into the house and to the search and seizure of
¶ 7. Explaining its decision, the panel wrote that “[w]hile 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.’ ” Id. (quoting 4 Wayne R. LaFave, Search and Seizure, § 8.5(e) (4th ed. 2011). To resolve whether Podella had the run of the house in this sense, the court of appeals reviewed Podella‘s relationship with the house and the laptop, emphasizing that she was invited to stay at the house for the weekend and that Sobczak never contended that he placed any restrictions on her use of the property or the laptop while alone in the residence. Id. In light of those facts, the court determined that Podella did have the run of the house for Fourth Amendment purposes and “thus had authority to allow the officers to enter the residence and to search and seize Sobczak‘s computer.” Id. However, the court tоok care to highlight the outer boundaries of its holding, noting that Podella‘s “authority to consent to a search was limited to the property that she possessed ‘common authority’ over,” which here encompassed the living room into which she led Officer Dorn and the laptop she presented for his inspection. Id., ¶ 13.
¶ 8. We granted Sobczak‘s petition for review and now affirm.
III. STANDARD OF REVIEW
¶ 9. When ascertaining whether evidence should have been suppressed as the result of a Fourth Amendment violation, we are confronted with a mixed ques-
IV. DISCUSSION
¶ 10. As we explain below, Podella had actual authority to consent to Officer Dorn‘s entry and search of the laptop. Sobczak‘s motion to suppress was therefore properly denied by the circuit court and that judgment in turn was properly affirmed by the court of appeals.
A. FOURTH AMENDMENT BACKGROUND PRINCIPLES
¶ 11. A cornerstone of our Bill of Rights, the Fourth Amendment to the United States Constitution forbids law enforcement from conducting “unreasonable searches and seizures.”4 The Fourth Amendment applies to state officers by virtue of its incorporation
¶ 12. The U.S. Supreme Court has recently reiterated that the Fourth “Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When the Government obtains information by physically intruding on... houses ..., a search within the original meaning of the Fourth Amendment has undoubtedly occurred.” Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1414 (2013) (internal quotation marks and citation omitted). It is undisputed here that the State acquired the incriminating evidence from the laptop “by physically intruding” into the home. If the officers so intruded in violation of the Fourth Amendment, then, the challenged evidence must be suppressed. See id. at 1417 (“That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred,” and since the search was not justified under the Fourth Amendment the evidence seized was properly excluded). Thus the question for us is whether Officer Dorn had the constitutional authority to enter the home and search the laptop.5 He did.
¶ 13. Sobczak‘s principal argument is that Podella could not have had actual authority to consent to Officer Dorn‘s entry to the house and living room because she was merely a weekend guest. In his view,
¶ 14. First, while 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; cf. Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 1564 (2013) (“While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake.“). Although Sobczak pays lip-service to this crucial footnote from Matlock, claiming that it supports his “common-sensical understanding” as to who possesses authority, his proposed approach flatly contradicts it. For what would a single-minded fixation on the often-blurry distinction between co-occupants, weekend guests, and so on be if not the type of overly formalistic property-law inquiry that the U.S. Supreme Court has expressly disavowed in this area?6
¶ 15. Resisting this inevitable conclusion, Sobczak insists that the strict weekend guest/co-occupant dichotomy he constructs to delineate who has authority to consent can be maintained within the more flexible framework established by the U.S. Supreme Court. As Sobczak acknowledges, the power to give consent turns on “widely shared social expectations” and “commonly held understanding about the authority that co-inhabitants may exercise in ways that affect each other‘s interests.” Randolph, 547 U.S. at 111. In other words, the exception is premised on the axiom that people who “share quаrters... understand that any one of them may admit visitors, with the consequence that a guest obnoxious to one may nevertheless be admitted in his absence by another.” Id. Sobczak recognizes this language and seeks to turn it to his advantage, submitting that no such assumption of risk takes place when a
¶ 16. Human nature being what it is, most members of society do not ground their expectations regarding the potential behavior of guests on formal titles like “co-occupant” and “weekend guest,” divorced from all context. Cf. State v. Kieffer, 217 Wis. 2d 531, 544, 577 N.W.2d 352 (1998) (stressing that the familial relationship of the consenter to the defendant is one non-dispositive factor among others). Nor should they, as not all “weekend guests” are created equal. As counsel for the State astutely noted at oral argument, a college student home for the weekend enjoys a very different status than a casual acquaintance left momentarily at a home while the owner runs an errand. It would be absurd to sanction a police officer for entering a home after being let in by a college student who had spent, say, 18 of his 20 years living at the residence solely because he was, at that particular time, merely a “weekend guest.” Society is not so irrational.7
¶ 17. The only binding authority that is arguably at odds with our conclusion is Illinois v. Rodriguez, 497 U.S. 177 (1990). There, the U.S. Supreme Court reviewed a case in which a woman named Gail Fischer had lived with the defendant for several months but left almost a month before the challenged search, taking her children‘s clothing with her but leaving behind various pieces of furniture and other objects. Id. at 181. After moving out, Fischer occasionally stayed overnight at the defendant‘s apartment, to which she had a key, though she did not invite friends, did not go when he was not there, did not have her name on the lease, and did not contribute to the rent. Id. In a cursory two sentences,8 the court dismissed the possibility that Fischer had actual authority to consent to a search of the apartment, calling the lower court‘s rejection of that assertion “obviously correct.” Id. at 181-82.
¶ 18. Sobczak reasonably regards this passage as most helpful to his cause, seeing as how Fischer was in some senses more closely associated with the searched premises than was Podella, as she had lived there in the past, had left belongings there, and had a key.9 Id. It is an argument with some persuasive force. In the final
¶ 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. State v. Pires, 55 Wis. 2d 597, 609, 201 N.W.2d 153 (1972) (footnote omitted); see also McNeely, 133 S. Ct. at 1564 (“[A] case-by-case approach is hardly unique within our Fourth Amendment jurisprudence. Numerous police actions are judged based on fact-intensive, totality of the circumstances analyses rather than according to categorical rules....“). 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.” Matlock, 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. See Kieffer, 217 Wis. 2d at 542 (“[I]t is the sufficiency of the consenting individual‘s relationship to the premises to be searched... that the State must establish.“). In McGovern we did just that, affirming the suppression of evidence seized on grounds of third-party consent because there was nothing in the record to reflect mutual
¶ 20. To date, we have had little opportunity to elaborate on the specific factors that weigh on whether an individual has the constitutional authority to invite law enforcement into the home of another. This case requires us to expand the list. First, the relationship of the consenter to the defendant is important, not only in the familial sense, Kieffer, 217 Wis. 2d at 544, but also in terms of the social ties between the two. A romantic12
¶ 21. We now apply these factors to the facts at hand.
¶ 22. 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.15
¶ 24. Lastly, although Podella‘s weekend invitation does not put her in the company of long-term guests with more expansive authority over the premises, it does distinguish her from the far briefer stays that have occasioned judicial rejection of claims of
¶ 25. There are, to be sure, considerations cutting in the opposite direction. In particular, Podella‘s stay, while not of the extremely brief duration of the consenter‘s in Cos, was also not of the more indefinite length at issue in many third-party consent cases. See, e.g., Matlock, 415 U.S. at 166 (noting that the consenter lived at the house with her son). Furthermore, there is no evidence that Podella had ever stayed in the house before, that she had been given a key to the residence, that she was leaving any belongings there or intended to return in the future, or any other indication of a relationship to the building that extended beyond the weekend of September 4, 2009. These omissions are not insignificant, and they make the case a far closer one than 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.17
¶ 26. The dissent purports to go through the same balancing test that we conduct, but it puts its thumb on the scales and preordains the result by concluding that Podella could not have had actual authority because “[a]ny access or control” she had “was clearly inferior to that of the defendant . . . .” Dissent, ¶ 69. If the only question for authority purposes was whether the consenter enjoys the same amount of access to and control over the property as the defendant, there would be no need to run through all of the various factors in the list. Instead, a court could simply search the list for the single respect in which the consenter‘s access or control was “inferior” and then suppress the challenged evidence. That is plainly not the law. See, e.g., United States v. Kimoana, 383 F.3d 1215, 1222 (10th Cir. 2004) (finding that the consenter had actual authority to allow law enforcement to search a motel room because “he had stayed there overnight, left his possessions there, and carried a key to the room” even though he “was not the registered guest who had paid for the room . . . .“); United States v. Kim, 105 F.3d 1579, 1582 (9th Cir. 1997) (finding that the consenter had actual authority to permit police to search a storage unit because it was leased in his name, even though the defendant “had the only key to the lock and had general control over the unit” and even though the consenter “did not have independent access and, without [the defendant‘s] permission, did not have the authority to open the unit (and never did open it for his own purposes).“).
¶ 27. There can be no doubt that “the Fourth Amеndment has drawn a firm line at the entrance to
¶ 28. Consent to enter a home, however, does not necessarily confer authority to enter a particular room within the home. Cf. Florida v. Jimeno, 500 U.S. 248, 251-52 (1991) (discussing when consent to search a car implies consent to search containers within the car, and when it does not). The Fourth Amendment therefore demands a justification for Officer Dorn‘s entry to the living room, where the search of the laptop occurred. That justification is readily apparent. Officer Dorn testified, without dispute, that the search took place in the living room, 20 feet inside the front door. Sobczak does not suggest that he had placed the living room off limits to Podella during her visit and, given that she was his girlfriend and was left alone in the home for an evening, it is implausible to imagine that he would have. As a result, Podella had “joint access or control” of the living room “for most purposes,” Matlock, 415 U.S. at 171 n.7, and she was legally entitled to bring Officer Dorn into that room. Cf. Logan v. State, 729 N.E.2d 125, 130-31 (Ind. 2000) (finding proper third-party consent to search a living room where there was “nothing in the record to indicate that police should have been on notice that the room was anything other than what it appeared to be— a living room used by all the residents of the home.“).
¶ 29. Having resolved that Officer Dorn‘s entry to the home and living room were constitutionally permissible, the only question that remains is whether his search of the laptop was as well.18 For similar reasons, the search did not transgress the Fourth Amendment and the exclusionary rule is therefore inapplicable.
¶ 30. Liberally construing Sobczak‘s argument on this point, we understand him to maintain that even if Podella had the authority to consent to the entry, she had no authority to consеnt to the far more intrusive search of the laptop. To substantiate that claim, Sobczak surveys a variety of cases in which a third party let an officer of the law into a home without inviting a search of the premises. Sobczak‘s conclusion that this collection of cases implies that short-term houseguests can never consent to searches is erroneous because his premise is flawed. That other courts have sanctioned entries without searches does not mean that any search following any such entry is unconstitutional. Indeed, the language of Matlock compels the contrary conclusion: “when the prosecution seeks to justify a warrant-
¶ 31. To validate the search of an object within a home on consent, the government must satisfy the same requirements as apply to consent to enter, namely, that the consenter had “joint access or control” of the object “for most purposes.” See, e.g., United States v. Waller, 426 F.3d 838, 845 (6th Cir. 2005). The question of whether Podella had sufficient access or control of the laptop for most purposes such that she was constitutionally entitled to allow Officer Dorn to search it is a far easier one than the question regarding his entry into the home. Undisputedly, Podella was explicitly granted permission by Sobczak to use the laptop, and the record contains no intimations of Sobczak placing any parameters on that use. Moreover, Podella used the computer in a common area of the house—the living room—which is where Officer Dorn conducted the search. It is also relevant that Officer Dorn opened only those files to which Podella had called his attention; a more searching examination of the machine occurred only after a search warrant was obtained. No one involved in the case has ever averred that the files inspected upon Podella‘s consent were password protected, and it is consequently safe to assume that they were accessible to anyone using the laptop. We therefore have no difficulty in saying that Podella was authorized to consent to Officer Dorn‘s search of the laptop. See State v. Ramage, 2010 WI App 77, ¶¶ 7-18, 325 Wis. 2d 483, 784 N.W.2d 746 (upholding the search and seizure of a computer on consent offered by an individual who was allowed by the defendant to use the machine without password protection); see also United States v. Stabile, 633 F.3d 219, 233 (3d Cir.) (concluding that an individual had authority to consent to a search and seizure of the defendant‘s hard drives where the computer was used by both the consenter and the defendant, was not password protected, and was located in a common area), cert. denied, 565 U.S. __, 132 S. Ct. 399 (2011). In short, the Fourth Amendment permitted Officer Dorn to search the files Podella had viewed on her consent.
¶ 33. Because Podella had actual authority to consent, we need not—and do not—consider the other issues raised by the parties: apparent authority, the independent source doctrine, and the inevitable discovery doctrine. See State v. Cain, 2012 WI 68, ¶ 37 n.11, 342 Wis. 2d 1, 816 N.W.2d 177 (“In conformity with our prior practice, we choose to decide this case on the narrowest grounds possible . . . .“) (citations omitted).
V. CONCLUSION
¶ 34. Our Constitution obeys the “centuries-old principle of respect for the privacy of the home,” Wilson, 526 U.S. at 610, and the state therefore may not intrude into a residence without a warrant unless it satisfies one of the few and narrowly-drawn exceptions to the warrant requirement. Welsh, 466 U.S. at 749. One exception permits the police to enter the home when the prosecution can persuade a court that the officer
By the Court.—The decision of the court of appeals is affirmed.
¶ 35. David T. Prosser, J., did not participate.
¶ 36. ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join the majority‘s opinion, and I agree with the majority‘s conclusion that the police actions in this case were not unconstitutional. I write separately to emphasize our consideration of Podella‘s authority to consent to the search of this portable laptop under the facts presented.
¶ 37. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
¶ 38. Homeowners would be justifiably disturbed if we were to conclude that an overnight guest possesses the authority to give carte blanche consent to a police search of their home. The majority opinion does not provide any such authority to an overnight guest, such as Podella. There is no dispute that Podella possessed the authority tо allow law enforcement to view the contents of this laptop computer. Here, evidence of child pornography was found on this portable laptop, which just happened to be viewed in the home. Podella requested that law enforcement view the laptop in the living room. The laptop could have been viewed anywhere. There is nothing about the laptop being in this home versus somewhere else that elevates the police entry under these circumstances to somehow being an unreasonable search and seizure. There is nothing in this record that indicates law enforcement was particularly interested in gaining entry of the home. Instead this record reflects that law enforcement was interested in viewing the laptop, wherever it may be viewed, and that Podella was interested in ensuring that they see the contents of the computer. Should the fact that law enforcement viewed the laptop in the living area of the home dictate that the evidence be suppressed, when it is undisputed that if the laptop were viewed at the police station, a coffee shop, or some similar location, no challenge would have been made to the search?1
¶ 40. In this case, law enforcement entered the home with the consent (and at the request) of Podella. There is no evidence that law enforcement was trying to gain entry into the home for any reason other than to view the laptop‘s contents. There is no indication that law enforcement otherwise wished to search the home or engage in conduct that in any way required them to gain entry to the home.2 Law enforcement entered the
¶ 41. As a practical matter, the object of the search—Sobczak‘s laptop computer—was a portable object that Podella could have brought to Officer Dorn for him to view. In the case at hand, we are confronted with scrutinizing law enforcement‘s conduct in a constitutional sense when Podella consented to the search of this portable object in the common area of this home. We face this challenge because law enforcement viewed the laptop in the home instead of elsewhere. See majority op., ¶ 28 (“There can be no doubt that ‘the Fourth Amendment has drawn a firm line at the entrance to the house,’ and it is our duty to zealously guard that line.“) (quoting Payton, 445 U.S. at 590). We are not confronted with a situation where the police used the pretext of searching a laptop to gain entry into a home. A person has a highly-protected expectation of privacy when it comes to law enforcement entering his or her home. There is no evidence in the record that suggests
¶ 42. In short, I join the majority‘s opinion, and I agree with its conclusions that the police actions in this case were constitutional. Here, a constitutional challenge would not have been brought had the laptop been viewed in a myriad of other places. Under these facts and circumstances, Podella possessed sufficient authority to allow the police to enter the home in order to conduct a search of the laptop.
¶ 43. For the reasons set forth, I respectfully concur.
¶ 44. SHIRLEY S. ABRAHAMSON, C.J. (dissenting). “When it comes to the Fourth Amendment, the home is first among equals.”1 The rule is that a law enforcement officer who enters a residence without a warrant is engaging in an unconstitutional act. Courts have, however, “jealously and carefully drawn”2 exceptions to the rule, one of which posits that an individual possessing appropriate authority may voluntarily “consent” to the entry and search of a residence.3 Exceptions to the warrant requirement, such as voluntary consent,
¶ 45. The question presented in the instant case is: Can a weekend guest in a residence call the police and authorize a search of a living room and computer while the resident is at work? Or is such a search a violation of the resident‘s constitutionаl rights under the Fourth Amendment to the United States Constitution?
¶ 46. In other words, when is a person authorized under the law to invite law enforcement into someone else‘s residence or to allow law enforcement to search someone else‘s computer?5
¶ 47. The majority rules that a one-time weekend guest can consent to a search of the living room of the residence and the resident‘s computer. Yet the majority points to no case in any jurisdiction holding that a weekend guest under the circumstances of the present case may validly consent to a search of another‘s residence.6
In Chapman v. United States, 365 U.S. 610 (1961), a landlord did not have actual authority to consent to a search of a tenant‘s home.
In Commonwealth v. Lopez, 937 N.E.2d 949, 958 (Mass. 2010), an unknown woman who opened the door of the defendant‘s home had neither actual nor apparent authority to consent to a search. Although the Commonwealth conceded the unknown woman did not have actual authority, the Massachusetts court noted that a cohabitant is a “person who lives in the home, either as a member of the family, a roommate, or a houseguest whose stay is of substantial duration and who is given full access to the home,” and that this cohabitant may have actual authority to consent to a warrantless search. Lopez, 937 N.E.2d at 956-57 n.9 (quoting Commonwealth v. Porter P., 923 N.E.2d 36 (Mass. 2010)).
In United States v. Sanchez, 608 F.3d 685, 687 (10th Cir. 2010), the United States Court of Appeals for the Tenth Circuit held that the homeowner‘s 15-year-old daughter who lived in the home had actual authority to consent to a search of the home.
In Davis v. State, 422 S.E.2d 546, 549 (Ga. 1992), a 10-year-old child who lived in the residence did not have sufficient authority to consent to a search of his parents’ home.
In State v. St. Martin, 2011 WI 44, ¶ 2, 334 Wis. 2d 290, 800 N.W.2d 858, cert. denied, 565 U.S. __ (2012), this court held that a co-tenant‘s consent is valid as against the absent, non-consenting co-tenant (citing United States v. Matlock, 415 U.S. 164, 170 (1974)).
In United States v. Collins, 515 F. Supp. 2d 891, 902 (N.D. Ind. 2007), a wife and son who occupied the home with their husband/father, the defendant, and had a “close personal and familial relationship with” the defendant, had actual authority to consent to a search of their home, where the defendant‘s computer was located (citing United States v. Duran, 957 F.2d 499, 504-05 (7th Cir. 1992) (holding that “a spouse presumptively has authority to consent to a search of all areas of the homestead . . .“)); see also United States v. Ladell, 127 F.3d 622, 624 (7th Cir. 1997) (“A third-party consent is also easier to sustain if the relationship between the parties—parent to child here, spouse to spouse in other cases—is especially close.“).
In United States v. Groves, 530 F.3d 506, 510 (7th Cir. 2008), a co-occupant had actual authority to consent to a search when she lived in the residence; registered the residence‘s phone in her name; registered her daughter for school using the residence‘s address; kept clothes, mail, bills, and drugs at the residence; cleaned the residence; and had a key and unlimited access to the residence.
In United States v. Kim, 105 F.3d 1579, 1580-83 (9th Cir. 1997), an employee had actual authority to consent to a search of his employer‘s rented storage locker when the employee had been hired to lease the locker and the lease was in the employee‘s name while the employer‘s name was listed only as an additional person authorized to access the unit.
In State v. Vinuya, 32 P.3d 116, 132 (Haw. 2001), the defendant‘s mother, who owned and resided in the home with the defendant, could consent to a search of most of the home, but did not have actual authority to consent to a search of the defendant‘s locked bedroom.
In United States v. Cos, 498 F.3d 1115, 1117-18 (10th Cir. 2007), a woman whom the defendant was dating did not have actual or apparent authority to consent to a search of the defendant‘s home. The woman had spent the night on multiple occasions and had been alone in the apartment when the defendant went out, but did not have a key, did not live there, did not pay rent, was not named on the lease, and did not keep any personal belongings in the apartment. In Cos, the Tenth Circuit concluded that the “girlfriend” did not have “mutual use” or “joint accеss” because she could not enter the apartment without the defendant‘s consent. She was “more like an occasional visitor whom [the defendant] allowed to visit, rather than one who asserted a right to access the property jointly with [the defendant].” Cos, 498 F.3d at 1127.
¶ 49. In United States v. Matlock, 415 U.S. 164, 171 (1974), the United States Supreme Court set forth the test applicable to all consenting persons, explaining that consent depends on “common authority” and rests “on mutual use of the property by persons generally having joint access or control for most purposes” or some “other sufficient relationship to the premises.”7
¶ 50. The United States Supreme Court has also explained that a court must examine the circumstances of the consent to determine whether a consenting party is authorized by law to give consent8 or whether the consent is sanctioned by the “commonly held understanding about the authority of co-inhabitants”9 or by
In doing so we do not mean, however, to suggest that the rule to be applied to them is similarly varied.”
For a discussion of the role of both property law and privacy law in interpretation of the Fourth Amendment, see Florida v. Jardines, __ U.S. __, 133 S. Ct. 1409 (2013). In Jardines, the United States Supreme Court ruled that police conducted an illegal search within the meaning of the Fourth Amendment when, without a warrant, they used a police dog on the porch of a home to sniff for drugs inside the home.
Five justices in Jardines relied on property law. The majority decision, written by Justice Scalia, explained that “[t]he Katz reasonable-expectations test ‘has been added to, not substituted for,’ the traditional property-based understanding of the Fourth Amendment . . .“(emphasis in original). The Jardines Court also discussed its recent decision in United States v. Jones, __ U.S. __, 132 S. Ct. 945, 948-52 (2012), explaining that “[in Jones], we held that tracking the vehicle‘s movements was a search: a person‘s ‘Fourth Amendment rights do nоt rise or fall with the Katz formulation.’ “. Jardines, 133 S. Ct. at 1417 (quoting Jones, 132 S. Ct. at 951-52).
Justice Kagan, joining the Scalia opinion and separately concurring with two justices, explained that property and privacy concepts mostly align in Fourth Amendment cases, writing, “The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines’ privacy interests.”
Justice Kagan went on to explain, “The law of property ‘naturally enough influence[s]’ our ‘shared social expectations’ of what places should be free from governmental incursions. And so the sentiment ‘my home is my own,’ while originating in property law, now also denotes a common understanding—extending even beyond that law‘s formal protections—about an especially private
¶ 51. The application of the Matlock test and the Randolph “widely shared social expectations” test enables a court to determine whether it is reasonable to hold that the consenting party has the authority to consent in his or her own right and that the resident has “assumed the risk” that the consenting party might permit the common area or personal effect to be searched.12
¶ 52. There are no statutes or case law in Wisconsin applicable to the present case declaring that a weekend guest of limited duration has authority to consent to a search of another‘s residence.13 So how do we apply the concepts of “common authority,” “widely shared social expectations,” and the resident‘s assumption of the risk in the present case?
¶ 53. We have no polls or social science research to advise us that, according to “widely shared social expectations,” a weekend houseguest under the circumstances of the present case may consent to a search of the residence or a computer. Do the houseguest and the resident have “common authority” over the residence or the computer, that is, do they hаve “mutual use of the property because they have joint access or control for
most purposes“?14 Did the resident (here the defendant) assume the risk of the houseguest‘s inviting law enforcement into the residence to search it or the computer?¶ 54. Case law sets forth a number of facts for courts to consider when determining the authority of a third party to consent to a search of the residence of another. The validity of the search of the residence or the computer based on third-party consent requires an intensely fact-specific inquiry, and slight variations in the facts may cause the results to vary.15 The inquiry into the validity of a consensual search is based on considerations of both property law and the invasion of privacy.16
¶ 56. The following list of factors is not exclusive or exhaustive. The factors examine the characteristics of the consenting party and the consenting party‘s relationship to the resident and to the residence to answer the ultimate question from Matlock, namely whether the consenting party had “mutual use of the property” and is a person “generally having joint access or control for most purposes.”
- Does the consenting person possess a key to the residence?17
Does the consenting person live in the residence?18 - Does the consenting person claim to be living in the residence?19
- Does the consenting person have a driver‘s license listing the residence as the driver‘s legal address?20
- Does the consenting person receive mail and bills at the residence?21
- Does the consenting person keep clothing at the residence?22
- Do the consenting person‘s children reside at the residence?23
Does the consеnting person perform household chores at the residence?24 - Is the consenting person‘s name on the lease for the premises or does he or she pay rent?25
- Does the consenting person keep personal belongings such as a diary or a pet at the residence?26
- Is the consenting person allowed in the residence when the defendant is not present?27
- Do the consenting person and the defendant have a relationship to each other or the residence that supports the conclusion that the person has authority to consent?28
- Is the duration of the consenting person‘s stay in the residence of sufficient length to support the conclusion that the person has authority to consent?29
¶ 58. The State has the burden to prove by clear and convincing evidence that a warrantless search was reasonable and in compliance with the Fourth Amendment.30 Yet the State has failed to meet its burden to prove that the houseguest had actual authority to consent to a search because nothing in the record supports the majority‘s assertion that the defendant “must have envisioned [the houseguest‘s] ‘mutual use of the property’ and her possession of ‘joint access or control for most purposes. . . .‘” Majority op., ¶ 22. The record is distinguished by its singular lack of facts.
¶ 59. In the present case, the houseguest did not have any of the characteristics set forth in factors (1)-(10). As I stated previously, no precedent supports the mаjority‘s conclusion that this houseguest had actual authority to consent. She did not possess a key,
¶ 60. When I look at factor (11), I conclude that the record shows that the houseguest here was alone in the residence for a few hours when the owner was not present one afternoon.31
¶ 61. With regard to factor (12), I note that courts have repeatedly reinforced the importance of the relationship between the defendant and the person consenting to the search in determining the authority of a consenting third party. The more distant the relationship, the more likely the resident has a reasonable expectation of privacy in relation to the third party and to spaces typically perceived as private.
¶ 62. In the present case, the nature of the relationship is not in the record. The majority opinion nonetheless assumes an intimate, romantic relationship. Indeed the entire majority opinion is premised on an intimate, romantic relationship supporting the inference that the houseguest was authorized to consent to others coming into the house.
¶ 64. I conclude the State has not met its burden of proof. Rather, the majority opinion has filled in the gaps in the State‘s proffered facts by imaginatively inferring an “intimate” romance without any proof in the record about the nature of the relationship.32
¶ 66. As to factor (13), the record is clear that the duration of the houseguest‘s stay in the residence was to be short, a weekend.33
¶ 67. A review of the 13 factors (and any other facts that were in the record) makes clear that the houseguest did not have “mutual use of the property by persons generally having joint access or control for most purposes.” The guest had “access” to the residence for one purpose: to remain in the home on Saturday afternoon when the defendant went to work. As in United States v. Cos, 498 F.3d 1115, 1117 (10th Cir. 2007), the houseguest in the instant case was “more like an occasional visitor whom [the defendant] allowed to
¶ 68. If we are discussing the extent of the houseguest‘s “control,” the record is absolutely silent on whether she had any control whatsoever over the residence. Nothing in the record indicates that she could invite friends over or have them use any room she occupied or exercise authoritative or dominating influence over the residence, as a dictionary definition of “control” contеmplates.34 Any inferences regarding the extent of her control are improper. The record is absolutely silent on facts from which inferences of control can be made.
¶ 69. Any access and control of the houseguest in the present case was limited to the temporary access and control a weekend guest might have when invited to someone else‘s home to stay for a short time. The houseguest did not share “joint” access or control, which contemplates that she “shared” an interest or had a “common interest” in the residence. Any access or control the houseguest had to the residence was clearly
¶ 70. In sum, all that can be gleaned from this evidence-deficient record is that a weekend houseguest described in the briefs as a girlfriend but of unknown relationship to the resident-defendant was given consent to use the defendant‘s computer and was left in the residence alone for a few hours on a Saturday afternoon while the resident-defendant was working. The record reveals nothing more.
¶ 71. This record does not support a reasonable inference that the houseguest has authority to consent to a law enforcement entry or search of the residence. No precedent supports the majority‘s conclusion that such a houseguest has authority to invite law enforcement officers into the home.
¶ 72. Under the majority opinion, it is easier for a weekend houseguest than for a co-resident to be accorded authority to consent to a search of another‘s residence. The majority opinion‘s rationale is illogical on its face and contravenes precedent.
¶ 73. In Illinois v. Rodriguez, 497 U.S. 177 (1990), the United States Supreme Court concluded that a former girlfriend, who had previously lived in the defendant‘s apartment and still occasionally spent the night and had a key, did not have actual authority to consent to a search of the apartment.35 The consenting third party in Rodriguez has a stronger connection to the resident and to the residence than the consenting third party in the present case, yet this court reached a different conclusion than the United States Supreme Court.
¶ 75. In Rodriguez, police were called to the residence of Dorothy Jackson. There, police were met by Ms. Jackson‘s daughter, Gail Fischer, who showed signs of a severe beating and indicated she had been assaulted by Edward Rodriguez, who Fischer believed
¶ 76. The question posed to the high court in Rodriguez was whether Fischer had actual or apparent authority to consent to the search of Rodriguez‘s apartment. Justice Scalia addressed the issue and relied on the Matlock test, that is, there is authority to consent when there is “common authority” that rests “on mutual use of the property by persons generally having joint access or control for most purposes.”41 Justice Scalia, writing for the Rodriguez Court, concluded that on the basis of the record it was clear that the State had not met its burden of establishing that Fischer had common authority over the residence.42
¶ 77. Although Fischer had a key, had previously lived in the residence with her children, had clothes and furniture there, and occasionally spent the night there
¶ 78. The facts in Rodriguez and the present case are similar: Both Fischer and the houseguest here called the police to report a crime. Both let the police into the residence in which they did not live. Although Fischer had a greater attachment to the apartment, had a closer relationship to the defendant, had a key, and had spent a longer time in the apartment than the houseguest in the present case, the United States Supreme Court held that Fischer did not have actual authority to consent to the search.
¶ 79. Following Rodriguez, federal and state courts alike have held the line, refusing to recоgnize that temporary guests, without more, have actual authority to consent. Professor LaFave explains that “[t]here is sound authority that, at least when the guest is more than a casual visitor and ‘had the run of the house,’ his lesser interest in the premises is sufficient to render that limited consent effective.”44 Professor LaFave takes the “run of the house” language from United States v. Turbyfill, 525 F.2d 57 (8th Cir. 1975). In Turbyfill, the United States Court of Appeals for the Eighth Circuit held that an “occupant of indefinite
¶ 80. Although the majority opinion attempts to offer “something more” for the houseguest in the present case to render her more than a casual visitor for a limited duration, the majority opinion‘s “offer” is something far less than what existed in Turbyfill and Rodriguez, and the “something more” that other courts have carefully required.
¶ 81. In United States v. Cos, 498 F.3d 1115 (10th Cir. 2007), the United States Court of Appeals for the Tenth Circuit recognized that a relationship between a man and a woman who “had dated for a short time” is not the equivalent of relationships that establish a presumption of control: those between parent and child and between husband and wife.46
¶ 82. In Cos, a guest who had been dating the tenant and was possibly living with him, and clearly had spent the night and had been left alone in the apartment on multiple occasions, did not have actual nor apparent authority to consent to a search when police arrived while she was in the apartment in the tenant‘s absence.47
¶ 83. The Tenth Circuit concluded that the guest was “more like an occasional visitor whom [the defendant] allowed to visit, rather than one who asserted a right to access the property jointly with [the defendant].”48 The facts of Cos are substantially similar to
¶ 84. When the analysis turns to the search of the defendant‘s laptop, I agree with the majority opinion that “an independent analysis must be performed to determine” whether the houseguest had authority to consent to a search of the defendant‘s laptop. Majority op., ¶¶ 30-31. In contrast to the position taken by the concurrence, the majority opinion and I agree: “Courts must independently consider whether a third party has the authority to consent to a search of a residence and whether the third party has authority to consent to particular containers within that residence.”49 A computer has long been analogized to a closed container for Fourth Amendment purposes.50 Authority to consent to search a room does not necessarily extend to authority to consent to search closed containers within that room.51
¶ 85. “A valid consent to search the closed container must come from one who has common authority over the effects sought to be inspected, one who has mutual use of the property, and one who generally has joint access or control for most purposes.”52
¶ 87. The concurrence turns a blind eye to the Fourth Amendment‘s prohibition of unreasonable searches not only of “persons [and] houses,” but also of “papers and effects.” The defendant‘s computer is one of the defendant‘s effects. The Fourth Amendment protects the contents of a computer from government intrusion whether the computer is found inside or outside the home.
¶ 88. A computer is not just another container. It is more like a filing cabinet or safe ordinarily containing substantial personal data.53
¶ 90. Therefore, when addressing whether the houseguest had actual authority to consent to a search of the computer inside or outside the home, the court must complete a consent analysis specifically applicable to the computer. The majority opinion does so in vain, but the concurrence believes it need not even go through the motions.
¶ 91. In State v. Carroll, 2010 WI 8, 322 Wis. 2d 299, 778 N.W.2d 1, this court addressed whether police could search the contents of a cellular telephone incident to arrest after noticing an image on the screen that appeared to include illegal drugs. Our court held that law enforcement cannot search a cellular telephone (a personal electronic device) without a warrant when there is no immediate danger of the data disappearing before a warrant can be obtained.54
¶ 92. Thus, the concurrence ignores the established precedent of this court, which requires law enforcement to get a warrant to search a personal electronic device when no valid exception to the warrant requirement applies.
¶ 93. The ultimate question is whether the houseguest shared “joint access or control” of the computer
¶ 94. The State has not demonstrated that the defendant “аssumed the risk” that the houseguest who had authority to use the computer also had authority to open every single file on the computer, including those containing child pornography, personal financial records, health information, or other confidential data.
¶ 95. For the same reasons that I conclude that the houseguest did not have actual authority to consent to the search of the home, I conclude she also did not have actual authority to consent to the search of the contents of the computer. The State has failed to meet its burden to prove that the houseguest had actual authority to consent to a search of private computer data. The State did not prove that the defendant “assumed the risk” that the houseguest would access his personal files on the computer and invite the police to join her any more than he would assume the risk that she would open desk drawers just because she could use the surface of the desk.
¶ 96. This court‘s decision today disregards Wisconsin and United States Supreme Court precedent and rulings in other jurisdictions.
¶ 97. For the reasons set forth, I dissent.
¶ 98. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
Notes
Although Professor LaFave recognizes that a guest may consent to a search in certain circumstances, he explains:
[A] host and guest cannot be said to have “common authority” over the premises, in the sense in which that phrase is used in Matlock. Generally, it must be concluded that the host‘s interest in the premises and authority to permit a search of them is superior to that of the guest. This being so, it may be said that ordinarily a mere guest in premises may not give consent to search of those premises which will be effective against the superior interest and authority of the host.
4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.5(e) (5th ed. 2012) (citing United States v. Cos, 498 F.3d 1115 (10th Cir. 2007); People v. Wagner, 304 N.W.2d 517 (Mich. App. 1981); State v. Manns, 370 N.W.2d 157 (Neb. 1985)).
United States v. Shelton, 337 F.3d 529, 535 (5th Cir. 2003). See also note 11, supra.
In Shelton, 337 F.3d at 535-36, the court discussed viewing consent through the prism of the law relating to privacy as follows:
Although consent to a search is a well-established exception to the requirement for a warrant issued on the basis of probable cause, courts have left the theory underlying this rule largely unarticu-
lated. The validity of a consensual search is presumably based on the premise that a warrant and probable cause are unnecessary to justify the invasion of privacy that accompanies a consensual search, because by consenting, the individual evinces a voluntary willingness to forgo that privacy. Similarly, third party consent presumably extends the capacity to give consent to individuals to whom the one with the privacy interest has already substantially ceded his expectation of privacy. . . . Viewing third-party consent through the prism of privacy interests enables us to approach the question of common authority by asking whether A sufficiently relinquished his expectation of privacy to B, i.e., allowed mutual or common use of the premises to the extent of joint access and control for most purposes, so that it is reasonably anticipated that B might expose the same privacy interest to others, even including law enforcement officers (emphasis added).
State v. St. Martin, 2011 WI 44, ¶ 18 n.10, 334 Wis. 2d 290, 800 N.W.2d 858 (quoting Groves, 530 F.3d at 509).
The St. Martin test was taken from a longer list of factors laid out by the Seventh Circuit in United States v. Groves, in which the court examined 10 factors to determine whether a
State v. St. Martin, 2011 WI 44, ¶ 18 n.10, 334 Wis. 2d 290, 800 N.W.2d 858 (quoting Groves, 530 F.3d at 509).
See also Commonwealth v. Porter P., 923 N.E.2d 36, 47-48 (Mass. 2010), explaining:
[A] person may have actual authority to consent to a warrantless search of a residence by the police only if (1) the person is a coinhabitant with a shared right of access to the residence, that is, the person lives in the home, either as a member of the family, a roommate, or a houseguest whose stay is of substantial duration and who is given full access to the home; or (2) the person, generally a landlord, shows the police a written contract entitling that person to allow the police to enter the home to search for and seize contraband or evidence.
United States v. Groves, 530 F.3d 506, 509-10 (7th Cir. 2008) (quoting United States v. Groves, 470 F.3d 311, 319 n.3 (7th Cir. 2006), for its list of factors).
State v. St. Martin, 2011 WI 44, ¶ 18 n.10, 334 Wis. 2d 290, 800 N.W.2d 858 (quoting Groves, 530 F.3d at 509).
In Groves, the defendant‘s girlfriend was a co-occupant who registered her daughter for school using the residence‘s address; registered the residence‘s phone in her name and paid the monthly bill; kept clothes, mail, bills and drugs in the residence; regularly cleaned the residence; and had a key and unlimited access to the residence.
Thus, courts have recognized the authority of mature children, United States v. Sanchez, 608 F.3d 685, 687 (10th Cir. 2010); siblings, People v. Shaffer, 444 N.E.2d 1096 (Ill. App. Ct. 1982); spouses, United States v. Ladell, 127 F.3d 622, 624 (7th Cir. 1997); United States v. Duran, 957 F.2d 499, 504-05 (7th Cir. 1992); United States v. Collins 515 F. Supp. 2d 891, 902 (N.D. Ind. 2007); and occupants under certain circumstances, United States v. Turbyfill, 525 F.2d 57, 58-59 (8th Cir. 1975) (an “occupant of indefinite duration rather than a casual visitor” who “had the run of the house” could consent to a search of the residence).
The guest has to stay for a “substantial duration” to be authorized to consent. Turbyfill, 525 F.2d at 58-59.
State v. Kieffer, 217 Wis. 2d 531, 541, 577 N.W.2d 352 (1998).
See also Commonwealth v. Porter P., 923 N.E.2d 36, 47-48 (Mass. 2010), explaining:
[A] person may have actual authority to consent to a warrantless search of a home by the police only if (1) the person . . . [is] a houseguest whose stay is of substantial duration and who is given full access to the home. . . .
It is difficult to argue with a straight face that one or two nights is a substantial duration in anything but the life of a mayfly.
The record does indicate that the defendant left sometime in the afternoon for his evening job as a bartender. The record indicates that Officer Dorn was dispatched to the residence at 5:32 p.m. Thus, the houseguest was alone in the residence from sometime in the afternoon when the defendant left for his evening job until Officer Dorn arrived at 5:32 p.m.
In this brief period of time in the afternoon between when the defendant left for his evening job and 5:32 p.m., the houseguest probably spent about an hour away from the residence walking to and from the nearest gas station to call her grandma.
The majority opinion indicates that the defendant and his guest were boyfriend and girlfriend, in a romantic, intimate relationship, which it argues is an important fact to support its finding that she had actual authority to consent to a search of at least part of the residence. Majority op., ¶¶ 2 n.1, 20 n.12, 22, 25, 28. The majority opinion uses the words “romantic” or “intimate” at least 15 times.
More properly, as the record reveals, the houseguest and the defendant met online, approximately three months earlier, and they had been “dating,” an undefined term. The majority apparently assumes that a 22-year-old man is having a romantic, intimate relationship with a 20-year-old woman whom he invites over for the weekend while his parents are away.
According to the record, the houseguest lived in Kenosha and the defendant lived in Hartford, approximately a 90-minute drive apart. The houseguest apparently did not have a car or a phone while she was at the defendant‘s residence. The defendant had a bartending job which required him to work at night.
According to the record, the houseguest arrived at the defendant‘s residence on Friday and planned to leave on Sunday. She left, however, on Saturday after filing the complaint. The actual duration of her stay in the residence was one night and part of a day.
I infer from the facts that are in the record that the defendant and the houseguest had met at least one time before this fateful weekend because the defendant had a picture of himself with the houseguest as his computer background.
The record does not state how many times the two had actually met in person before the weekend at issue, or how many “dates” they had. The record is silent about whether the houseguest had previously stayed at the defendant‘s residence.
The majority opinion‘s discussion of the houseguest‘s control of the residence is itself internally inconsistent, making it clear that the majority does not really know how much control she had while providing poor guidance for future courts. At one point, the majority opinion takes a broad approach, explaining that “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.” Majority op., ¶ 23. Later, the majority opinion “underscore[s] the limitations of today‘s decision,” explaining that the houseguest did not have “carte blanche” to consent to a search of all parts of the house. Majority op., ¶ 32.
All this leaves me perplexed. The houseguest apparently can do almost anything “with [the house].” The houseguest cannot, however, sell the house or consent to a search of certain parts of it. What about the bedroom where she slept or kept her clothes?
As the majority opinion explains in ¶ 18 n.10, the Rodriguez court applied the Matlock test in holding that the guest had no actual authority to consent to the search. The Rodriguez decision directly quotes the Matlock test, explaining that “the State has not established that . . . [the houseguest] had ‘joint access or control for most purposes.‘” Rodriguez, 497 U.S. at 181-82. Nevertheless, the majority opinion asserts that the Rodriguez result is “incompatible” with the Matlock test. Majority op., ¶ 18 n.11. How does tension exist between Matlock and Rodriguez, as the majority opinion asserts, when one United States Supreme Court decision directly relies on the standard put forth in another? The majority opinion attempts to resolve a nonexistеnt tension, never distinguishing the facts of Rodriguez from those in the present case for purposes of deciding the authority of the houseguest.
Fischer indicated that the assault had occurred earlier in the day. The United States Supreme Court opinion does not indicate whether Fischer had spent the previous night in the apartment or the number of hours she spent in the apartment that day.
4 Wayne R. LaFave, supra note 14, at § 8.5(e) (emphasis added).
See, e.g., United States v. Blas, 1990 WL 265179, *21 (E.D. Wis. 1990) (“[A]n individual has the same expectation of privacy in a pager, computer or other electronic data storage and retrieval device as in a closed container . . . .“)
United States v. Waller, 426 F.3d 838, 845 (6th Cir. 2005) (citing United States v. Karo, 468 U.S. 705, 725-26 (1984) (O‘Connor, J., concurring)).
Judge Posner recently wrote:
Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. “[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life. [T]here is a far greater potential for the ‘inter-mingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” . . . At the touch of a button a cell phone search becomes a house search, and that is not a search of a “container” in any normal sense of that word, though a house contains data.
United States v. Flores-Lopez, 670 F.3d 803, 805-06 (7th Cir. 2012) (internal citations omitted).
See also Smallwood v. Florida, 2013 WL 1830961, *7, 113 So. 3d 724 (Fla. 2013) (“The most private and secret personal information and data is contained in or accessed through small portable electronic devices and, indeed, many people now store documents on their equipment . . . that, twenty years ago, were stored and located only in home offices, in safes, or on home computers.“).
State v. Carroll, 2010 WI 8, ¶ 33, 322 Wis. 2d 299, 778 N.W.2d 1 (citing Arkansas v. Sanders, 442 U.S. 753 (1979) (Officers with probable cause to believe a suitcase contained contraband were justified in seizing that suitcase, but the Fourth Amendment precluded their immediate search of the suitcase without a warrant.)).