FL2: Using an antennae to steal wifi that the police traced back didn’t violate a REP

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.

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