Police obtained information that child pornography was downloaded via an IP address. They searched the computers there, finding none. They investigated further and found defendant was a neighbor who was using a Yagi antennae to obtain radio access to the wifi. With the homeowner’s permission, they determined that the signals were going back and forth from defendant’s address. Then they applied for a search warrant for his address. Arguing from Kyllo, he argued that the police penetrated his walls to find him. Based on other precedents, the court concludes defendant had no reasonable expectation of privacy in the radio signal he sent out to steal wifi from someone else: he “did not confine his activities to the interior of his motorhome but instead extended ‘an invisible, virtual arm,'” to reach out, and that was what the police found. McClelland v. State, 2018 Fla. App. LEXIS 8615 (Fla. 2d DCA June 20, 2018):
Rather, McClelland was illegally accessing (i.e., stealing) a third-party’s Wi-Fi network by attaching an antenna similar to the one used by the detectives to his motorhome in order to capture the Wi-Fi signal and thereafter connecting his computer to the stolen Wi-Fi signal. By illegally accessing the Wi-Fi network, he was able to hide his identity while downloading the child pornography. In similar circumstances, other courts have rejected the argument that a defendant has an expectation of privacy that society is willing to recognize as reasonable. See, e.g., United States v. Stanley, 753 F.3d 114, 119 (3d Cir. 2014); United States v. Broadhurst, No. 3:11-cr-00121-MO-1, 2012 U.S. Dist. LEXIS 168893, 2012 WL 5985615, at *4 (D. Or. Nov. 28, 2012).
The Stanley court recognized that use of a tracking software tool and directional antenna to locate and measure the strength of radio waves was similar to the thermal imager in Kyllo because it involved “sense-enhancing technology.” Stanley, 753 F.3d at 119. But the court also distinguished Kyllo on the basis that it involved a defendant confining his activities to his own home whereas Stanley’s conduct in accessing his neighbor’s Wi-Fi was akin to extending “an invisible, virtual arm across the street to the Neighbor’s router so that he could exploit his [i]nternet connection.” Id. at 120. “In so doing, Stanley deliberately ventured beyond the privacy protections of [his own] home[] and[,] thus, beyond the safe harbor provided by Kyllo.” Id. The court further held that “while Stanley may have justifiably expected the path of his invisible radio waves to go undetected, society would not consider this expectation ‘legitimate’ given the unauthorized nature of his transmission.” Id. (citing Rakas v. Illinois, 439 U.S. 128, 143 n.12, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978)); see also Broadhurst, 2012 U.S. Dist. LEXIS 168893, 2012 WL 5985615, at *4-*5 (holding that defendant could not invoke the protection of the Fourth Amendment against law enforcement’s use of a handheld device to measure the strength of station device signals from the defendant’s computer where the defendant was maintaining an unauthorized connection to his neighbor’s unsecured Wi-Fi network and thus did not have a reasonable expectation of privacy in the signals).
We adopt the position taken by the courts in Stanley and Broadhurst and hold that McClelland cannot assert a subjective expectation of privacy that society would consider as reasonable or legitimate where McClelland did not confine his activities to the interior of his motorhome but instead extended “an invisible, virtual arm,” Stanley, 753 F.3d at 120, outside the motorhome in order to illegally access the subject Wi-Fi network. The unlawful nature of the computer data that McClelland was accessing and downloading only further supports our holding. See id.. Because there was no search for purposes of the Fourth Amendment, the trial court did not err in denying McClelland’s suppression motion.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)