State v. Sobczak

• Citation: 2013 WI 52,347 Wis.2d 724,833 N.W.2d 59
• Decision Date: 20 June 2013
• Docket Number: No. 2010AP3034–CR.,2010AP3034–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Kenneth M. SOBCZAK, Defendant–Appellant–Petitioner.
• Court: United States State Supreme Court of Wisconsin

347 Wis.2d 724

833 N.W.2d 59

2013 WI 52

STATE of Wisconsin, Plaintiff–Respondent,

v.Kenneth M. SOBCZAK, Defendant–Appellant–Petitioner.

No. 2010AP3034–CR.

Supreme Court of Wisconsin.

Argued Dec. 4, 2012.

Decided June 20, 2013.

For the defendant-appellant-petitioner, there were briefs and oral argument by Andrew R. Hinkel, assistant state public defender.

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.

MICHAEL J. GABLEMAN, J.

[347 Wis.2d 727]¶ 1 Our Constitution obeys the “centuries-old principle of respect for the privacy of the home,” Wilson v. Layne, 526 U.S. 603, 610, 119 S.Ct. 1692, 143 L.Ed.2d 818 (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, 104 S.Ct. 2091, 80 L.Ed.2d 732 (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, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). At issue now is whether Kristina Podella had that authority when she invited law enforcement to enter Kenneth Sobczak's residence and view suspicious files on his computer. The circuit court found that she did have that authority and accordingly denied Sobczak's motion to suppress, and the court of appeals agreed. We agree with both the trial and appellate courts, and consequently affirm the decision of the court of appeals.

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 [347 Wis.2d 729]4, 2009 to spend the weekend while Sobczak's parents were away on vacation, planning to depart on Sunday, September 6. The afternoon of the following day, Sobczak reported to his bartending job, leaving Podella alone in the house. Because she had no means of transportation and was unfamiliar with the town, Podella asked and received permission from Sobczak to use his personal laptop to occupy herself in his absence.

¶ 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 later testified, that he would “have to look at the video to view it.” Podella agreed to help him do so and found the video on the computer, which had been sitting on the couch throughout the encounter. Having located the video, Podella pressed play and Officer Dorn watched the video. Like Podella, Officer Dorn believed that the video contained child pornography, and he briefly inspected “a couple” of the other videos that had aroused Podella's suspicions. He thought that these too depicted child pornography and called his supervisor for guidance. Officer Dorn's supervisor instructed him to bring the laptop to the station, and he complied.

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 Sobczak's laptop.” State v. Sobczak, 2012 WI App 6, ¶ 12, 338 Wis.2d 410, 808 N.W.2d 730.

¶ 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 took 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 questionof law and fact. State v. Buchanan, 2011 WI 49, ¶ 8, 334 Wis.2d 379, 799 N.W.2d 775. First, the circuit court's findings of fact are taken as true unless clearly erroneous. State v. Sykes, 2005 WI 48, ¶ 12, 279 Wis.2d 742, 695 N.W.2d 277. Second, our application of constitutional principles to those facts is de novo. State v. Vorburger, 2002 WI 105, ¶ 32, 255 Wis.2d 537, 648 N.W.2d 829.

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 through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Hess, 2010 WI 82, ¶ 41, 327 Wis.2d 524, 785 N.W.2d 568. It has long been established that the Fourth Amendment places the greatest protection around the home, as it was drafted in part to codify “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.” Payton v. New York, 445 U.S. 573, 601, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (footnote omitted); Holt v. State, 17 Wis.2d 468, 477, 117 N.W.2d 626 (1962) (“A home is entitled to special dignity and special sanctity.”). Due to the constitutional sanctity of the home, the police may not venture across the threshold without a warrant except under limited circumstances, on pain of suppression. Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); State v. Pinkard, 2010 WI 81, ¶ 13, 327 Wis.2d 346, 785 N.W.2d 592. One such exception—“jealously and carefully drawn”—“recognizes the validity of searches with the voluntary consent of an individual possessing authority.” Georgia v. Randolph, 547 U.S. 103, 109, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (internal quotation marks and citation omitted); see generally State v. McGovern, 77 Wis.2d 203, 252 N.W.2d 365 (1977). In order to preserve the integrity of the warrant requirement, when the State seeks to admit evidence searched or seized without a warrant on grounds of lawful consent, it must prove, by clear and convincing evidence, that it obtained such consent. State v. Tomlinson, 2002 WI 91, ¶ 21, 254 Wis.2d 502, 648 N.W.2d 367. As a factual matter, the parties agree that Podella consented to Officer Dorn's entry and search. They disagree as to whether the Fourth Amendment empowered her to offer such consent. As we show below, it did.

B. WEEKEND GUESTS ARE NOT PER SE EXCLUDED FROM GRANTING THIRD–PARTY CONSENT TO ENTER A HOME AND CONDUCT A SEARCH THEREIN

¶ 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...