                                                                    2013 WI 52

                  SUPREME COURT            OF    WISCONSIN
CASE NO.:               2010AP3034-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Kenneth M. Sobczak,
                                  Defendant-Appellant-Petitioner.




                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 338 Wis. 2d 410, 808 N.W.2d 730
                                  (Ct. App. 2012 – Published)
                                     PDC No: 2012 WI App 6

OPINION FILED:          June 20, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          December 4, 2012

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Washington
   JUDGE:               Patrick J. Faragher

JUSTICES:
   CONCURRED:           ZIEGLER, J., concurs. (Opinion filed.)
   DISSENTED:           ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
                        filed.)
  NOT PARTICIPATING:    PROSSER, J., did not participate.

ATTORNEYS:
       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.
                                                                        2013 WI 52
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.    2010AP3034-CR
(L.C. No.   2009CF297)

STATE OF WISCONSIN                            :            IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent,
                                                                     FILED
      v.
                                                                JUN 20, 2013
Kenneth M. Sobczak,
                                                                   Diane M. Fremgen
             Defendant-Appellant-Petitioner.                    Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                Affirmed.



      ¶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,
                                                               No.   2010AP3034-CR



415 U.S. 164, 171 (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


       1
       More specifically, Officer Nathanial (spelled "Nathaniel"
elsewhere in the record) Dorn testified at the suppression
hearing that Podella informed him that she and Sobczak met
approximately three months earlier and "had been dating."     In
Sobczak's statement of facts in his initial brief, Podella
describes Sobczak to Officer Dorn as "her boyfriend of three
months."       No   party   disputes   either    Officer  Dorn's
characterization in his testimony or Sobczak's in his filing——
indeed, the State adopts Sobczak's statement of the facts as its
own   and  presents   only  certain   additional   facts.    For
convenience, we will use "romantic," "dating," "girlfriend," and
similar terms in our opinion in discussing the type of
relationship between Podella and Sobczak.     We do not thereby
imply that we are drawing a firm line in Fourth Amendment law
based on the degree of intimacy shared by the consenter and the
defendant, though that degree is one factor to be considered
amongst several, and it is one factor we consider here. See ¶20
infra.

                                        2
                                                                       No.        2010AP3034-CR



Kenosha.        At   Sobczak's      invitation,             Podella    arrived        at    the

Hartford residence on Friday, September 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

                                            3
                                                             No.    2010AP3034-CR


     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




     2
       The motion to suppress also made reference to the Fifth
Amendment, but Sobczak does not raise a Fifth Amendment argument
here.

                                       4
                                                                              No.     2010AP3034-CR



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

       3
       In its oral ruling, the circuit court appeared to rely
upon a variety of other justifications for upholding the search,
including exigent circumstances, property law, and public
policy, among others. The State does not defend the judgment on
any of these grounds and we do not consider them.

                                                    5
                                                                        No.     2010AP3034-CR



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 question of 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




                                             6
                                                                        No.        2010AP3034-CR



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 (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   (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 (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 (2006) (internal quotation marks and

       4
       A parallel provision is enshrined in the Wisconsin
Constitution. Wis. Const. Art. I, § 11. Sobczak relies solely
upon its federal counterpart, so our discussion too will be
limited to the U.S. Constitution.     In any event, though, we
ordinarily interpret the two identically. See State v. Kramer,
2009 WI 14, ¶18, 315 Wis. 2d 414, 759 N.W.2d 598 ("On only one
occasion   in  our   development  of   Article I,  Section  11
jurisprudence have we required a showing different from that
required by the [U.S.] Supreme Court's Fourth Amendment
jurisprudence.").

                                                 7
                                                                             No.    2010AP3034-CR



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           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
                                                    8
                                                                   No.     2010AP3034-CR



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, the exception set forth by Matlock is

limited      to     "co-occupants"       and   "co-inhabitants,"        and       does   not

cover       those    with   shorter      stays     like    Podella.      Effectively,

Sobczak asks us to draw a bright-line rule focused solely on the

duration of the consenter's time in the residence.                         For several

reasons, we decline to do so.

      ¶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

        5
       According to his testimony, Officer Dorn discussed with
Podella the possibility of her bringing the laptop outside the
home for him to inspect it.   She never did so, however, so we
need not analyze the constitutionality of that hypothetical
scenario.

                                               9
                                                                         No.     2010AP3034-CR



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
"commonsensical        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

     6
       In a recent decision on a Fourth Amendment question
relating to law enforcement's use of global positioning systems,
the U.S. Supreme Court explained that property law remains
relevant   to   search-and-seizure  jurisprudence   in   certain
circumstances. See United States v. Jones, 565 U.S. __, 132 S.
Ct. 945, 950 (2012) (clarifying that while some of the court's
cases "deviated from [an] exclusively property-based approach,"
it never renounced the notion that the Fourth Amendment embodies
"a particular concern for government trespass upon the areas"
protected by the Amendment). The Jones court, however, did not
suggest that third-party consent cases must now be viewed
through the lens of formal property law, after United States v.
Matlock, 415 U.S. 164 (1974) said the opposite, and other courts
have not read Jones as working such a dramatic change in the
law. See Braskett v. Fender, 884 F. Supp. 2d 1119, 1130 (D. Or.
2012) (quoting Matlock's repudiation of property law in the
third-party consent context and not mentioning Jones); People v.
Fernandez, 145 Cal. Rptr. 3d 51, 59 (Ct. App. 2012) (same),
cert. granted, 569 U.S. __, __ S. Ct. __, 2013 WL 2149804
(2013); Pryor v. City of Clearlake, 877 F. Supp. 2d 929, 944
                                          10
                                                                                   No.     2010AP3034-CR



       ¶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

quarters . . . 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 guest is invited to spend the weekend.                                                  We are

aware of authority from other jurisdictions to that effect, see,

e.g., People v. Pickens, 655 N.E.2d 1206, 1209 (Ill. Ct. App.

1995),       but    viewed         in   relation       to       the    reasoning          of    the     U.S.

Supreme       Court's          binding        case    law       we     think       it     conceptually

unsound.

       ¶16     Human nature being what it is, most members of society

do     not    ground           their     expectations             regarding          the        potential


(N.D. Cal. 2012) (same). We follow Matlock's dictate on third-
party consent and its separation from property law, as neither
the U.S. Supreme Court nor our own has departed from its
analytical approach.

                                                     11
                                                                         No.     2010AP3034-CR



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


       7
       Instructively, the approach we take today was followed by
a court that reached the opposite outcome, but did so not with
reference to the inflexible rule advocated by Sobczak, but
rather in consideration of the quality of the relationship
between the consenter and the premises.        In that decision,
Cardenas v. State, the Texas Court of Appeals declared, "At
best, [the consenter] was merely a" passing acquaintance who
happened to spend the night.          "Consequently," the court
reasoned, "he did not have actual authority to consent to the
officer's entry." 115 S.W.3d 54, 60 (2003) (citation omitted).
The distinction between a passing acquaintance who happens to
spend the night like the consenter in Cardenas and an overnight
guest in a romantic relationship with the defendant is precisely
the type of distinction that alters the "widely shared social
expectations" regarding access and risk that guide our inquiry.
Georgia v. Randolph, 547 U.S. 103, 111 (2006).

                                                12
                                                                        No.     2010AP3034-CR



(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


        8
       The full passage reads, in its entirety: "On these facts
the State has not established that, with respect to the South
California apartment, Fischer had 'joint access or control for
most purposes.'      To the contrary, the Appellate Court's
determination of no common authority over the apartment was
obviously correct." Illinois v. Rodriguez, 497 U.S. 177, 181-82
(1990).
        9
       Though it was unclear whether she obtained the key with
the defendant's permission.       Rodriguez, 497 U.S. at 181.
Officer Dorn testified that he had no recollection whether he
asked Podella if she had a key to the residence, and we
consequently cannot base our decision on a finding that she did.

                                              13
                                                                  No.   2010AP3034-CR



persuasive      force.        In    the   final   analysis,   however,       we   must

follow    the    underlying         logic   of    the   Supreme    Court     in   its

definitive pronouncement on the subject, not a passing remark in

an opinion almost entirely devoted to other issues.10                   Matlock is

the law on actual authority in third-party consent cases, and

Matlock   directs        us    to    consider     the   "widely     shared    social

expectations" and "commonly held understanding" that give rise

to an assumption of risk that an individual in one's domicile

may admit others.         As we have explained, such considerations are




     10
       The dissent's characterization of our comments on
Rodriguez borders on the disingenuous.        It accuses us of
"reject[ing] the Supreme Court's holding as 'cursory'" when it
was instead "measured and deliberate . . . ."      Dissent, ¶74
(emphasis added).     Though the dissent prefers to pretend
otherwise, Rodriguez contains three holdings: 1) the consenter
had no actual authority; 2) the state court relied upon federal
and not state law; and 3) a remand was necessary for a
determination of whether there was apparent authority.       See
generally Rodriguez, 497 U.S. 177. The section deemed "measured
and deliberate" by the dissent takes up one paragraph, contains
a single citation (to Matlock), and includes no substantive
analysis.   Id. at 181-82.    In stark contrast, Justice Scalia
devoted 10 paragraphs, 6 pages, and citations to 13 different
cases to resolve the third issue.          One need not be a
constitutional scholar to readily detect the court's principal
motive for taking up and deciding the case: it was to establish,
for the first time, the new doctrine of apparent authority
(which required the court to find no actual authority), not to
recite a bare-bones summary of a doctrine that was already 16-
years old at the time and then apply it without any substantive
analysis.   That is not to say that we can ignore Rodriguez's
words concerning actual authority, and we do not do so. Unlike
the dissent, however, we opt not to bury our heads in the sand
regarding the context of Rodriguez and Matlock in attempting to
resolve the tension between the two.

                                            14
                                                                    No.     2010AP3034-CR



incompatible with a blanket refusal to grant some weekend guests

the authority to consent.11

       ¶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."

415 U.S. at 171 (footnote omitted).                    It follows that the courts

must explore any facts that bear on that authority and that


       11
       The dissent describes our opinion as "refus[ing] to
recognize" Rodriguez as binding.     Dissent, ¶74.   Untrue.   We
acknowledge, as we must, that Rodriguez is binding, but so too
is Matlock, and the result of the former is incompatible with
the test set forth by the latter. It is not a novel situation
for tension to exist between two binding precedents.      When it
does, we discharge our constitutional duty as a law-developing
court better by honestly grappling with the tension, as we have
done here, rather than ignoring it, as the dissent elects to do.

                                           15
                                                                          No.     2010AP3034-CR



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 use of

the   property,      joint     access      or       control,      "or    that     the    room's

occupants assumed the risk one of their number might permit the

common area to be searched."               77 Wis. 2d at 215.

      ¶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




                                               16
                                                              No.   2010AP3034-CR



two.        A   romantic12   relationship,   for   example,    gives      rise   to

different expectations than does a passing acquaintance or a

purely      economic    connection.     See,   e.g.,    Chapman      v.    United

States, 365 U.S. 610, 616-17 (1961) (holding that a landlord

could not consent to a search of a tenant's home).                  Second, the

duration of the consenter's stay in the premises can shed light


       12
       We are perplexed by the dissent's concern over our
occasional use of the words "romantic" and "intimate."        See
dissent, ¶¶62-64. While the dissent is troubled that the terms
"girlfriend" and "dating" are undefined, it provides no
definition for the apparently crucial word "romantic."     As we
have noted, we use "romantic" merely to indicate that Sobczak
and Podella enjoyed a more intimate association than, say,
strangers or passing acquaintances.     See supra ¶2 n.1.     The
dissent appears to assume that the term "romantic" applies only
to star-crossed lovers of the Romeo and Juliet variety.     While
we admire the dissent's idealism, we use the word in the more
pedestrian sense to convey an intimate, personal relationship.
Prior to today's protestations from the dissent, we would not
have thought such a use controversial.      See, e.g., Lasure v.
Commonwealth, 390 S.W.3d 139, 140 (Ky. 2012)("Thereafter,
Lasure's relationship with Tolliver became romantic and the two
began casually dating."); Tex. Fam. Code Ann. § 71.0021(b) (West
2013) (defining "dating relationship" as "a relationship between
individuals who have or have had a continuing relationship of a
romantic or intimate nature"). We might just as accurately have
used the term "dating relationship" instead of "romantic
relationship," but because there is no need to do so, we are
comfortable with our chosen nomenclature. At any rate, we agree
with the dissent's more general observation that "[t]he more
distant the relationship [between the consenter and the
resident], the more likely" there is no actual authority.
Dissent, ¶61. When all is said and done, the dissent's quibble
regarding our terminology serves more as a smokescreen for its
dubious application of this general principle than as the
articulation of a meaningful dispute. For the only real upshot
of the dissent's lengthy exegesis on the nature of romance is
that it considers a girlfriend of three months to be a distant
association under the Fourth Amendment. Neither society nor the
Constitution shares that groundless assumption.

                                       17
                                                             No.   2010AP3034-CR



on   her    authority   to   allow   visitors   in,   though,      as   we   have

demonstrated, that alone does not settle the question.13                     See,

e.g.,      Commonwealth v.   Lopez,   937   N.E.2d    949,   957   n.9    (Mass.

2010) (including the duration of the guest's stay as a factor in

the determination of actual authority to consent).                      Third, a

defendant's decision to leave an individual in his home alone

helps support an inference that the individual has been given

some choice in excluding some visitors and opening the door to

others.      See, e.g., United States v. Sanchez, 608 F.3d 685, 689
(10th Cir. 2010) (noting that the consenter was regularly left


      13
       In rather overheated prose, the dissent remarks that
"federal and state courts alike have held the line, refusing to
recognize that temporary guests, without more, have actual
authority to consent."      Dissent, ¶79.     Drama aside, the
insertion of the caveat "without more" strips this sentence of
any discernible content.    Certainly the Fourth Amendment does
not permit the police to rifle through a person's drawers at the
behest of a complete stranger invited into a foyer for five
minutes.    If that is what the dissent means to say, its
statement is quite right, and quite beside the point, as Podella
does not remotely fit that description. If instead the dissent
means to imply that a non-resident can never offer consent, that
is simply not the law. The leading treatise on Fourth Amendment
jurisprudence notes the "sound authority" that allows a guest
who has "the run of the house" to consent "to a police entry
into an area where a visitor would normally be received."      4
Wayne R. LaFave, Search and Seizure, § 8.5(e) (5th ed. 2012).
LaFave is routinely cited in search and seizure cases, including
in numerous decisions by this court and the U.S. Supreme Court.
See, e.g., State v. Sveum, 2010 WI 92, ¶33, 328 Wis. 2d 369, 787
N.W.2d 317; Arizona v. Gant, 556 U.S. 332, 345 n.5 (2009). More
to the point, the rule enunciated in § 8.5(e) is cited to seven
opinions and has, in turn, been cited in jurisdictions around
the country.   See, e.g., State v. Morse, 123 P.3d 832, 837-38
(Wash. 2005); Hilbish v. State, 891 P.2d 841, 848 (Alaska Ct.
App. 1995).   The dissent's assertions notwithstanding, we break
no new legal ground here.

                                      18
                                                                                No.       2010AP3034-CR



alone in the home as one of the reasons supporting a finding of

actual authority).                  Of course, the longer a person is left alone

in the home, the more likely she will have authority to consent.

See,     e.g.,          Davis    v.    State,       422       S.E.2d    546,    549       (Ga.    1992)

(mentioning the limited time period for which the consenter was

left     alone          in    the   home      in    finding      a     lack    of     authority     to

consent).           Finally, there are the various other miscellaneous

facts        that        may     illuminate         the        depth    of     an     individual's

relationship to the premises, such as whether she has been given

a key, whether she keeps belongings in the home, whether her

driver's license lists the residence as her address, and so on.

See State v. St. Martin, 2011 WI 44, ¶18 n.10, 334 Wis. 2d 290,
800    N.W.2d 858,             cert.    denied,      565       U.S.    __,     132    S.    Ct.    1003

(2012).14

        ¶21       We now apply these factors to the facts at hand.

        C. PODELLA HAD ACTUAL AUTHORITY TO CONSENT TO OFFICER DORN'S

                               ENTRY INTO THE HOME AND THE LIVING ROOM

        ¶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


        14
       We hasten to add that the list above is not exclusive but
rather composed with an eye to the facts of the case at bar.
Other searches will no doubt implicate other factors that may
assist in the inquiry.   For a more extensive list of potential
factors, see, e.g., United States v. Groves, 530 F.3d 506, 509-
10 (7th Cir. 2008).

                                                    19
                                                                             No.     2010AP3034-CR



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

        ¶23 We respectfully disagree with the dissent's claim that

Podella       did    not   have    joint   access         or   control        because        "[a]ny

access and control . . . 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."                              Dissent, ¶69.              The

      15
       The dissent maintains that "nothing in the record
supports" our view that Sobczak assumed the risk that Podella
would invite unwanted guests onto the premises. Dissent, ¶58.
However, the fact that the record contains no indication of any
restrictions placed upon Podella's use of the house is itself
evidence that she was granted unlimited use of it, which in turn
reinforces the conclusion that Sobczak assumed the risk of her
welcoming the police into the home.        Cf. United States v.
Sanchez, 608 F.3d 685, 689 (10th Cir. 2010) (finding actual
authority in part because "nothing in the record suggests any
restrictions or limitations whatsoever on [the consenter's]
access to or use of any part of the home.").

                                              20
                                                                 No.    2010AP3034-CR



dissent does not clarify what these limitations must be, and we

find    it    difficult    to    imagine   they   are   so    substantial     as   to

eclipse the control she did exercise.               Granted, 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.                        The fact that

Sobczak permitted Podella to stay in the house alone where there

are no indicia that he placed any restrictions on her use of the

property is a powerful sign that she had the authority to bring

Officer Dorn into an area of the home to which visitors would be

expected to come.16

       ¶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 authority.            See, e.g., United States v. Cos, 498 F.3d
1115,       1128   (10th   Cir.    2007)    (excluding       evidence    where     the




       16
       That does not necessarily mean that Podella would have
been entitled to invite Officer Dorn into every area of the
house. If Officer Dorn had conducted the search in a different
room, other facts, such as whether the room was locked, would
presumably have been brought out at the suppression hearing and
those facts would then bear on the Fourth Amendment analysis.
Cf. State v. Vinuya, 32 P.3d 116, 128-32 (Haw. Ct. App. 2001)
(finding actual authority to consent to a search of the common
areas of the house but no actual authority to consent to a
search of the defendant's locked bedroom). That is not the case
before us. We consider Podella's seemingly unrestricted use of
the home only as it relates to her invitation to Officer Dorn to
enter the living room and search the laptop there.    We make no
comment regarding any other area of the residence.

                                           21
                                                                   No.    2010AP3034-CR



consenter    was   left    alone   in   home       for   40    minutes    before   the

arrival of law enforcement).

      ¶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 that 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




                                        22
                                                                     No.    2010AP3034-CR



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


        17
       The dissent chides us for making it "easier for a weekend
houseguest than a co-resident to be accorded authority to
consent to a search of another's residence." Dissent, ¶72. We
have done no such thing. As should be abundantly clear from a
cursory review of our opinion, many of the factors we consider
would quite obviously lend themselves to a stronger case for
authority with a resident than with a weekend guest.         For
instance, the duration of a consenting resident's stay would
presumably be indefinite or at least substantial, and such a
person would almost certainly be left home alone at times, would
possess a key, would have belongings at the premises, and so on.
Contrary to the dissent's undefended assumption, the fact that
this weekend guest had authority does not mean that all do.

                                            23
                                                              No.     2010AP3034-CR



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 Amendment has

drawn a firm line at the entrance to the house," Payton, 445
U.S. at 590, and it is our duty to zealously guard that line.

See Kyllo, 533 U.S. at 37 ("In the home, our cases show, all

details are intimate details, because the entire area is held

safe from prying government eyes.") (Emphasis in original.)                     But

the line was crossed here upon valid consent, and Officer Dorn's

entry was therefore within the bounds set by the Constitution.

       ¶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
                                       24
                                                                 No.    2010AP3034-CR



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.").

           D. OFFICER DORN'S SEARCH OF THE LAPTOP WAS PERFORMED UPON

                                        VALID CONSENT

      ¶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

      18
       Sobczak's position regarding the relationship between the
entry and the search is less than crystal clear.      On the one
hand, he repeatedly frames the issue in terms of the search,
characterizing it in one place as whether "Podella, as a weekend
visitor, [had] the authority to subject . . . Sobczak's home and
its contents to a police search."     (Emphasis added.)   On the
other hand, Sobczak concedes in his reply brief that he is no
longer "assert[ing] an independent privacy interest in his
computer" or "disput[ing] . . . Podella's authority to consent
to its search." We are unsure as to how these two contentions
can be reconciled. Nonetheless, in the interest of clarity and
comprehensiveness, we will address the search.

                                          25
                                                                               No.       2010AP3034-CR



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

consent 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 warrantless             search       by    proof       of    voluntary

consent,       it . . . may         show        that     permission            to        search      was

obtained from a third party who possessed common authority over

or    other    sufficient        relationship           to    the       premises         or    effects

sought    to    be    inspected."              415    U.S.    at    171    (emphasis               added)

(footnote      omitted).           If,    in    a     third-party         consent         case,      the

State must demonstrate that its inspection of the effects was

constitutional in addition to its inspection of the premises, as

Matlock       teaches,      it     stands       to     reason       that    the          State      must

demonstrate that it had consent to examine those effects.                                           Here

that means that after Podella consented to Officer Dorn's entry,

an independent analysis must be performed to determine whether
                                                 26
                                                                          No.     2010AP3034-CR



she consented to a search of the laptop.                           Cf. United States v.

Karo,     468      U.S.    705,     726      (1984)    (O'Connor,         J.,     concurring)

("[W]hen a guest in a private home has a private container to

which     the       homeowner          has      no    right        of     access . . . the

homeowner . . . lacks the power to give effective consent to the

search of the closed container."); United States v. Fultz, 146

F.3d 1102, 1106 (9th Cir. 1998) (adopting quoted language from

Justice O'Connor's concurrence in Karo); Commonwealth v. Porter

P., 923 N.E.2d 36, 48 n.11 (Mass. 2010) ("Even if a coinhabitant

of the home had actual authority to consent to a search of the

home,     the      consent      would     not    extend      to    a    closed      suitcase,

overnight bag, or gym bag located inside the home that did not

belong to the coinhabitant.") (citation omitted); United States

v. Smairat, 503 F. Supp. 2d 973, 991 (N.D. Ill. 2007) (applying

the principles above to computers).

        ¶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.
                                                27
                                                                          No.       2010AP3034-CR



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.

       ¶32    It    is   important        to    underscore         the     limitations           of

today's decision.             As the court of appeals cautioned, "We are

not holding that the girlfriend's status as a houseguest gave

her carte blanche to consent to a search of all the contents in
                                               28
                                                        No.    2010AP3034-CR



the home.      Rather, her authority to consent to a search was

limited to the property that she possessed 'common authority'

over."     Sobczak, 338 Wis. 2d 410, ¶13.      We agree.      Officer Dorn

went only into the living room, a common area of the residence,

and searched only the laptop, an object Podella had been granted

explicit permission to use.         For present purposes, it is enough

to say that Officer Dorn's entry and search complied with the

dictate of the Fourth Amendment.          Future courts should consider

future cases with this sensitivity to detail in mind.

     ¶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 was invited to

cross the threshold by someone authorized by the defendant to

extend such invitations.       Matlock, 415 U.S. at 171.         At issue

now is whether Podella had such authority when she invited law
                                     29
                                                                   No.    2010AP3034-CR



enforcement       to   enter   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.

      By    the   Court.—The       decision    of    the   court    of    appeals   is

affirmed.

      ¶35     David T. Prosser, J., did not participate.




                                         30
                                                                           No.    2010AP3034-CR.akz




       ¶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."         A   violation           occurs      "when       government       officers

violate a person's 'reasonable expectation of privacy.'"                                      United

States     v.    Jones,      565    U.S.     __,       132    S.     Ct.      945,      950   (2012)

(quoting        Katz    v.   United        States,          389    U.S.       347,      360    (1967)

(Harlan, J., concurring).                  The purpose of the Fourth Amendment

is    to     curb     abusive      police        practices         by    protecting           against

unreasonable searches and seizures.                         See Payton v. New York, 445

U.S.    573,     608    (1980)       (White,          J.,    dissenting).               The    police
engaged in no such abusive practice in the case at issue.                                       Under

these facts and circumstances, law enforcement's entry into this

house, with Podella's consent, and the search of this portable

laptop computer survives constitutional scrutiny.

       ¶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

                                                  1
                                                                        No.       2010AP3034-CR.akz


Podella possessed the authority to 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

     ¶39     A third party may consent to a search when that party

"possessed        common        authority              over     or         other       sufficient

relationship to the premises or effects sought to be inspected."

United States v. Matlock, 415 U.S. 164, 171 (1974) (emphasis


     1
       If instead of finding child pornography, Podella was
sexually assaulted by the defendant that morning and wished that
law enforcement enter the home to take her statement, would her
statement be suppressed under the logic that law enforcement had
no authority to enter the home?

                                                  2
                                                                   No.    2010AP3034-CR.akz


added).          In this case, the effect the police sought to inspect

and did inspect was Sobczak's laptop computer.                            Sobczak admits

that        he   gave   Podella    permission      to     use    the     computer.        The

majority opinion correctly concludes that Podella had consent to

authorize Officer Dorn to search the files on the computer that

she believed depicted child pornography.                        See majority op., ¶32

(noting that Podella has explicit consent from Sobczak to use

the computer, that she was using it in a common area of the

house, that Officer Dorn opened only the files suspected to be

child        pornography,       and     that   the      files     were     not   password

protected).

       ¶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
        2
       In contrast to the facts and circumstances of this case, a
court will suppress evidence when law enforcement violates a
homeowner's right to privacy by unreasonably searching a home
and recovering evidence that is somehow tied to the home.     See
e.g., State v. Stevens, 213 Wis. 2d 324, 326, 328-29, 570
N.W.2d 593 (Ct. App. 1997), aff'd, 217 Wis. 2d 518, 580
N.W.2d 688 (1998) (suppressing cocaine and a gun recovered from
the defendant's bedroom where police attempted a ruse of a pizza
delivery to gain entry into the defendant's home and when that
failed, entered the defendant's home without knocking and
announcing); State v. Sanders, 2008 WI 85, ¶¶13-15, 26, 311
Wis. 2d 257, 752 N.W.2d 713 (suppressing cocaine found in a
canister   underneath  defendant's bed    after police    entered
defendant's home without a warrant, arrested the defendant, and
conducted two searches of the defendant's bedroom after the
arrest).
                                3
                                                               No.    2010AP3034-CR.akz


main living area of the home with consent to view a portable

laptop.     Podella, not the homeowner, consented to Officer Dorn

entering into the common living area, which was approximately 20

feet from the front door, in order to view the suspicious videos

on Sobczak's computer.           After doing so, Officer Dorn took the

laptop to the police station.             See majority op., ¶¶4-5.                  While

law   enforcement     did   view        the   computer    in         the    home,     law

enforcement did not otherwise search the home.                         In fact, the

police later obtained a search warrant to justify a search of

Sobczak's home.

      ¶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   the    police          conducted a



                                          4
                                               No.   2010AP3034-CR.akz


broader search than was necessary to determine whether the files

Podella found on Sobczak's computer were child pornography.

     ¶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.




                                 5
                                                                      No.   2010AP3034-CR.ssa




        ¶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, are construed narrowly

because       warrants      are          generally     preferable     to    police    action

without a warrant.4

        ¶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




        1
       Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409, 1414
(2013).
        2
            Jones v. United States, 357 U.S. 493, 499 (1958).
        3
       Georgia v. Randolph, 547 U.S. 103, 106, 109 (2006) (citing
United States v. Jones, 357 U.S. 493, 499 (1958)); Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990)).

     "'[O]ur law holds the property of every man so sacred, that
no man can set foot upon his neighbour's close without his
leave.'   2 Wils. K.B., at 291, 95 Eng. Rep., at 817. . . .'
[T]he only question is whether he had given his leave (even
implicitly) for them to do so." Jardines, 133 S. Ct. at 1415.
        4
            Randolph, 547 U.S. at 117.

                                                  1
                                                     No.    2010AP3034-CR.ssa


constitutional 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




     5
       No exigent circumstances existed in the present case
justifying a warrantless search of the residence or the
computer. There was plenty of time for law enforcement to get a
warrant.   For a discussion of when exigent circumstances may
justify a warrantless search, see Missouri v. McNeely, ___ U.S.
___, 133 S. Ct. 1552 (2013).
     6
       The majority opinion discusses many cases as a basis for
its holding. In not one of these cases did the court rule that
a non-resident had actual authority to consent to a search of a
residence.

     In State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352
(1998), this court held that the defendant's father-in-law
lacked actual and apparent authority to consent to a search of a
loft area above the father-in-law's garage, where the defendant
and his wife were living.

     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.

                                     2
                                             No.   2010AP3034-CR.ssa




     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.").

                               3
                                                                   No.   2010AP3034-CR.ssa


     ¶48        The   cases     regarding       consent    to    search    a   residence

present     a    wide    variety     of     consenting         persons,    including    a

landlord,       an    unknown    guest,     a       resident    15-year-old    child,   a


     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 access" 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.

     More importantly, the Cos court recognized that a short-
term   dating relationship   is   not  the equivalent   of  the
relationships that establish a presumption of control: those
between parent and child and between husband and wife. Cos, 498
F.3d at 1128.

                                                4
                                                                       No.    2010AP3034-CR.ssa


resident       10-year-old          child,       a     non-married           co-resident,     a

resident      spouse,       a    resident    adult       child,       and    a   non-resident

houseguest of short duration.                    Yet none of these cases provides

support for the majority's conclusion.

       ¶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-




       7
       "The [United States Court of Appeals for the] Ninth
Circuit has summarized post-Matlock cases as requiring that 'a
consent-giver with limited access to the searched property lacks
actual authority to consent to a search. . . . The cases
upholding searches generally rely on the consent-giver's
unlimited access to property to sustain the search.'" Braskett
v. Fender, 884 F. Supp. 2d 1119, 1130 (D. Ore. 2012) (quoting
United States v. Kim, 105 F.3d 1579, 1582 (9th Cir. 1997)).
       8
       For example, a landlord may be able to show the police a
written lease agreement allowing the landlord to enter the
residence for any purpose and to permit others to enter the
residence.

                                                 5
                                                 No.   2010AP3034-CR.ssa


inhabitants"9 or by "widely shared social expectations."10           In

consent     cases,   "widely   shared   social   expectations"      are

"naturally enough influenced by the law of property, but not

controlled by its rules."11




     9
       Randolph, 547 U.S. at 111. The Randolph court, 547 U.S.
at 109 n.2, explained its use of the word "co-inhabitants" as
follows:   "Mindful of the multiplicity of living arrangements,
we vary the terms used to describe residential co-occupancies.
In doing so we do not mean, however, to suggest that the rule to
be applied to them is similarly varied."
     10
          Randolph, 547 U.S. at 111.
     11
          Id.

     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
not 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."

                                  6
                                                                   No.   2010AP3034-CR.ssa


     ¶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

     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 sphere."    Jardines, 133 S. Ct. at 1419 (Kagan, J.,
concurring) (citations omitted).
     12
       Randolph, 547 U.S. at 111 (quoting                          United          States   v.
Matlock, 415 U.S. 164, 171, n.7 (1974)).
     13
       In the two opportunities this court has had to consider
consent by a non-resident, this court has concluded that the
non-resident did not have actual authority to consent. State v.
Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998); State v.
McGovern, 77 Wis. 2d 203, 252 N.W.2d 365 (1977) (a person living
in a tent on the grounds of the residence did not have authority
while in the residence to consent to entry in the residence).

                                           7
                                                          No.    2010AP3034-CR.ssa


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 have "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



       14
       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)).
       15
       United States v. Shelton, 337 F.3d 529, 535 (5th Cir.
2003). See also note 11, supra.

                                         8
                                                                        No.    2010AP3034-CR.ssa


considerations           of    both     property          law   and      the     invasion     of

privacy.16

        ¶55     I have examined Wisconsin case law, federal case law,

and the case law of other states to list the factors courts

examine        to     determine       whether       and    when    a     third     party     has

authority to consent to a search of a residence, that is, what

facts        persuade    a    court    to     conclude      that    a    third     party    fits

widely shared social expectations that he or she has authority

to consent.

     ¶56        The     following      list    of     factors      is    not    exclusive    or

exhaustive.            The    factors       examine       the   characteristics        of   the

        16
       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 unarticulated.
     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).

                                                9
                                                    No.   2010AP3034-CR.ssa


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."

     (1)   Does   the   consenting    person   possess    a   key   to   the

residence?17

     (2) Does the consenting person live in the residence?18

     (3) Does the consenting person claim to be living in the

residence?19

     17
       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
defendant's girlfriend had actual or apparent authority to
consent to a search of the defendant's residence.
     18
       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.
     19
       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).

                                     10
                                                              No.   2010AP3034-CR.ssa


     (4)    Does   the    consenting    person     have   a    driver's      license

listing the residence as the driver's legal address?20

     (5) Does the consenting person receive mail and bills at

the residence?21

     (6)    Does   the     consenting     person    keep       clothing      at   the

residence?22

     (7)    Do   the     consenting    person's    children         reside   at   the

residence?23

     (8) Does the consenting person perform household chores at

the residence?24

     (9) Is the consenting person's name on the lease for the

premises or does he or she pay rent?25

     (10) Does the consenting person keep personal belongings

such as a diary or a pet at the residence?26

     (11) Is the consenting person allowed in the residence when

the defendant is not present?27




     20
       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).
     21
          Groves, 530 F.3d at 509.
     22
          Id.
     23
          Id. at 509-10.
     24
          Id. at 510.
     25
          Id.
     26
          Id.
     27
          Id.

                                        11
                                                         No.   2010AP3034-CR.ssa


     (12)   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

     (13) 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




     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.
     28
       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).
     29
       The guest has to stay for a "substantial duration" to be
authorized to consent. Turbyfill, 525 F.2d at 58-59.

     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.

                                    12
                                                                   No.    2010AP3034-CR.ssa


        ¶57       I consider all 13 factors, noting that the list is not

exclusive or exhaustive, to determine whether, under Matlock,

the consenting party had "mutual use of the property by persons

generally having joint access or control for most purposes."

Under the totality of the circumstances in the present case, I

conclude that the houseguest did not have authority to give law

enforcement consent to enter the residence.

        ¶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     majority's

conclusion that this houseguest had actual authority to consent.

She did not possess a key, live in the residence, claim to live

there, have a driver's license with the residence's address,

receive mail or bills at the residence, keep clothes there, have




        30
             State v. Kieffer, 217 Wis. 2d 531, 541, 577 N.W.2d 352
(1998).

                                               13
                                                            No.    2010AP3034-CR.ssa


her children or other relatives reside there, perform chores

there, pay rent there, or keep personal belongings there.

      ¶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.

      ¶63   In contrast to the majority opinion, the record merely

indicates    that    the    defendant      and    the     houseguest       had   been


      31
       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.

                                        14
                                                               No.   2010AP3034-CR.ssa


"dating" for a few months.                The parties' briefs describe the

houseguest       as   the    defendant's    "girlfriend,"       but    the    officer

testifying at the preliminary examination did not describe her

as a girlfriend.            The word "girlfriend" is not defined, and the

relationship between the houseguest and the resident was not

spelled out at the preliminary examination or in any part of the

record     or    in   the     briefs.       Very   little       evidence      of   the

relationship is in the record from which inferences can be made.

     ¶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
     32
       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.

     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.
                                          15
                                                       No.    2010AP3034-CR.ssa


     ¶65   What is clear from the record is that the defendant

and the houseguest did not have a relationship similar to those

in cases in which courts have recognized that actual authority

existed.    The houseguest was not a member of the defendant's

family, the defendant's spouse, an estranged spouse or a former

spouse, the defendant's child or sibling, or the defendant's

tenant or co-occupant or guest of substantial duration.

     ¶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 visit,          rather   than   one    who     asserted   a

right to access the property jointly with [the defendant]."



     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.
     33
       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.

                                      16
                                                                            No.    2010AP3034-CR.ssa


      ¶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" contemplates.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

      34
       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?

                                                 17
                                                                    No.    2010AP3034-CR.ssa


clearly inferior to that of the defendant, and not "joint" by

any definition of the word.                      The use of the premises by the

defendant and the houseguest could not be called "mutual" by any

definition of that word.

       ¶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,35 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



       35
            Illinois v. Rodriguez, 497 U.S. 177 (1990).

                                                18
                                                                  No.    2010AP3034-CR.ssa


consent to a search of the apartment.36                        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.

       ¶74     The Rodriguez case has been cited favorably numerous

times,      including      in   the   recent      United       States    Supreme    Court

decision      in    Randolph     v.   Georgia.37         Yet    the     majority   simply

rejects the Supreme Court's holding as "cursory".                         Majority op.,

¶17.     Justice Scalia may be amused to learn that the majority of

justices       of    the   Wisconsin       Supreme       Court    characterizes         his

measured and deliberate approach in Rodriguez as "cursory" and

refuses      to     recognize    it   as   a    binding    interpretation          of   the

Fourth Amendment of the United States Constitution.                          The simple

fact    that      the   United    States       Supreme    Court       reached   multiple

conclusions in Rodriguez and chose to spend more time explaining

the doctrine of apparent authority rather than actual authority




       36
            Id., 181-82.
       37
            Randolph, 547 U.S. at 106, 109.

                                           19
                                                              No.   2010AP3034-CR.ssa


does not diminish the importance of its holding about actual

authority and does not permit us to ignore its holding.38

     ¶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     was   asleep      in   his     apartment.39         Fischer

consented to travel to the apartment with the police in order to

unlock the door for them with her key.                    Police learned that

Fischer referred to the residence as "our" apartment, had a key,

and had clothes and furniture there.                    It is unclear whether

Fischer     told   the   police     that     she    currently       lived    in   the

apartment, but in fact she had lived there for six months with

her two small children and Rodriguez and had moved out a few


     38
       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 nonexistent tension, never distinguishing the facts of
Rodriguez from those in the present case for purposes of
deciding the authority of the houseguest.
     39
       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.

                                        20
                                                                 No.   2010AP3034-CR.ssa


weeks earlier.           Even after she moved out, Fischer occasionally

spent the night at Rodriguez's apartment.40

        ¶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 after moving out,

the    Court     ruled    that   Fischer   did    not     have    "joint       access    or

control for most purposes."                After this thorough explanation,
Justice Scalia concluded that the lower courts' determination of

no common authority over the apartment was "obviously correct."43

Once    Fischer        no longer     resided    there    she    became     a   temporary

guest        without    common   authority,      like    the     houseguest      in     the

        40
             Rodriguez, 497 U.S. at 179-82.
        41
       Id. at 181 (quoting United States v. Matlock, 415 U.S.
164, 171, n.7 (1974)).
        42
             Illinois v. Rodriguez, 497 U.S. 177, 181-82 (1990).
        43
             Rodriguez, 497 U.S. at 181-82.

                                           21
                                                                           No.    2010AP3034-CR.ssa


present case.              The Court then moved to the issue of apparent

authority, an issue not presented in the instant case.

        ¶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 recognize 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 duration rather than a casual visitor" who "had

the     run     of    the       house"     could       consent       to    a     search       of   the

residence.45


        44
             4 Wayne R. LaFave, supra note 14, at § 8.5(e) (emphasis
added).
        45
             Turbyfill, 525 F.2d at 58-59.

                                                  22
                                                                       No.    2010AP3034-CR.ssa


       ¶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 the facts of this case, and the Tenth



       46
            Cos, 498 F.3d at 1128.
       47
            Id. at 1117-18.
       48
            Id. at 1127.

                                              23
                                                                         No.       2010AP3034-CR.ssa


Circuit's definition of the guest who cannot consent matches the

houseguest in the present case.

      ¶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




      49
       United States v. Smairat, 503 F. Supp. 2d 973, 987 (N.D.
Ill. 2007) (citing Groves, 470 F.3d at 320).
      50
       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 . . . .")
      51
       Smairat, 503 F. Supp. 2d at 987 (citing Rodriguez, 888
F.2d at 523).

                                               24
                                                            No.   2010AP3034-CR.ssa


to be inspected, one who has mutual use of the property, and one

who generally has joint access or control for most purposes."52

     ¶86     Without precedent or analysis, the concurrence asserts

that "it is undisputed" that the defendant's laptop could be

searched wherever police like "in a myriad of other places."

Concurrence, ¶¶38, 42.

     ¶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
     52
       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)).
     53
          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.
                                25
                                                          No.   2010AP3034-CR.ssa


      ¶89   Law enforcement needs a valid exception to the warrant

requirement to engage in a warrantless search of the contents of

the computer.        The only exception applicable to the computer in

the   present    case    is   consent.       No   other    Fourth     Amendment

exception applies.

      ¶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




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, ___ So.
3d ___ (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.").

                                     26
                                                                     No.      2010AP3034-CR.ssa


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 "for most purposes."

From the limited record, all we know is that the houseguest was

permitted          to     use     the     defendant's    computer        on     the    fateful

afternoon "because she was bored and wanted something to do."

The computer belonged solely to the defendant, and the defendant

and the houseguest did not generally share common authority over

it.          We    do     not     know     whether    the     defendant        provided      any

parameters on its use.

        ¶94       The     State    has     not   demonstrated       that       the    defendant

"assumed 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

        54
       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.)).

                                                 27
                                                                No.    2010AP3034-CR.ssa


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.




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