United States Court of Appeals

For the Eighth Circuit

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No. 22-1071

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Matthew Patrick Langenberg

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Eastern

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Submitted: September 22, 2022

Filed: November 4, 2022 

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Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges. 

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WOLLMAN, Circuit Judge.

Matthew Patrick Langenberg worked as a salesman at a retail flooring store. 

The company gave Langenberg a cell phone, which he was allowed to take home and

use as a personal phone. After a co-worker alleged in 2020 that Langenberg had used

the phone to record her, the company’s co-owner Scott Storck asked Langenberg for

the phone and its passcode. After Langenberg unlocked the phone and provided the

passcode, Storck discovered images that he believed were child pornography. He
thereafter gave the phone and passcode to law enforcement officers, telling them that

the company owned the phone.

Langenberg moved to suppress the evidence of child pornography which the

officers had discovered on the phone. Following the district court’s1

 denial of the

motion, Langenberg pleaded guilty to receipt of child pornography in violation of 18

U.S.C. § 2252(a)(2), (b)(1), and was sentenced to 60 months’ imprisonment.

Assuming without deciding that Langenberg has standing to challenge the

officers’ search of the cell phone, we conclude that Storck had apparent authority to

consent to the search. “Apparent authority exists when the facts available to the

officer at the moment . . . warrant a man of reasonable caution in the belief that the

consenting party had authority over the premises.” United States v. Lindsey, 702

F.3d 1092, 1096 (8th Cir. 2013) (internal quotation marks and citations omitted). 

Authority exists when a “third party has either (1) mutual use of the property by

virtue of joint access, or (2) control for most purposes.” United States v. Chavez

Loya, 528 F.3d 546, 554 (8th Cir. 2008) (citation omitted).

When the officers searched the phone, they knew that Storck had possession

of the phone, had access to its contents, had claimed ownership over it, and had

searched the phone himself. It thus appeared that Storck had either joint access to the

phone or control over it. Langenberg argues that the officers should have

investigated further because neither possession nor ownership alone would have been

sufficient to establish actual authority. Storck seemed to have both possession and

ownership, however, as well as access to and use of the phone’s contents. Officers

at the time of the search were not aware of the other facts that allegedly call Storck’s

authority into question—that Langenberg claimed ownership of the phone, that he

1The Honorable John A. Jarvey, then Chief Judge, United States District Court

for the Southern District of Iowa, now retired.

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had requested its return, and that the receipt for the phone’s alleged purchase did not

match the phone that had been provided to police.

 

Quoting United States v. Basinski, Langenberg argues that because of the

highly private nature of a cell phone, “it is less reasonable for a police officer to

believe that a third party has full access” to it. 226 F.3d 829, 834 (7th Cir. 2000). 

Basinski involved a search of the defendant’s locked briefcase, which a third party

had in his possession. Officers knew that the defendant was the sole owner of the

briefcase and its contents. The third party did not know the combination to the lock,

but nonetheless had consented to the search. The Seventh Circuit held that the third

party’s mere possession of the briefcase, without a possessory interest in its contents

or “access to, control over, or use of the interior of the case,” was insufficient to

create a reasonable belief that he had authority to consent. Basinski, 226 F.3d at 835. 

Unlike in Basinski, the officers here reasonably believed that Storck had authority to

consent to the search of the phone that was in his possession, over which he had

asserted ownership, and of which he had the passcode and access to its contents.

Because we find that Storck had apparent authority to consent to the search, we

need not reach Langenberg’s argument that the warrantless search constituted an

unlawful trespass. Storck’s apparent authority also defeats Langenberg’s argument

that the later search of his residence should be suppressed as fruit of the poisonous

tree.

The judgment is affirmed.

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