CA9: Use of another’s wireless router was not protected by any REP; police tracked def with Moocherhunter

After child pornography was found exchanged on a peer-to-peer connection from a specific IP address, government agents got a search warrant for that home address in apartment 242. Once there, they determined that no devices there were involved. They found, instead, that someone else was using the home’s wireless from outside without authorization. With a Moocherhunter device and using a wireless antenna, they were able to determine the person accessing 242’s wireless was likely in 243. They waited for that person to access the P2P network again, which was about a week later. “Based on the Moocherhunter data, Special Agent Phirippidis obtained a search warrant for Apartment 243. When Special Agent Phirippidis and his colleagues executed the search warrant, they discovered evidence of child pornography.” First, while defendant’s wireless signal emanated from his home, it reached outside the home to another home. There was no physical intrusion into his home. Thus, no subjective reasonable expectation of privacy. Second, the court concludes that society is not willing to recognize a reasonable expectation of privacy in defendant’s actions. United States v. Norris, 2019 U.S. App. LEXIS 32890 (9th Cir. Nov. 4, 2019):

Although physically located in his home, Norris’s wireless signal reached outside his residence to connect to the wireless router in Apartment 242. The FBI captured Norris’s wireless signal strength outside Norris’s residence to determine the source of the signal. The FBI’s actions may be likened to locating the source of loud music by standing and listening in the common area of an apartment complex. Although the music is produced within the apartment, the sound carries outside the apartment. Just as no physical intrusion “on constitutionally protected areas” would be required to determine the source of the loud music, no physical intrusion into Norris’s residence was required to determine the strength of the wireless signal emanating from the devices in his apartment. Jardines, 569 U.S. at 11.

We conclude that no subjective expectation of privacy exists under these circumstances, where information is openly available to third parties. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, 389 U.S. at 351 (citations omitted); see also California v. Ciraolo, 476 U.S. 207, 213-14 (1986) (holding that use of an aircraft in public airspace to view marijuana plants in the backyard of a home did not violate the Fourth Amendment); California v. Greenwood, 486 U.S. 35, 40-41 (1988) (concluding that search of publicly exposed garbage did not violate the Fourth Amendment); United States v. Borowy, 595 F.3d 1045, 1047-48 (9th Cir. 2010) (upholding search of computer files using file-sharing software available to the public).

We agree with the district court that Kyllo does not dictate the conclusion that a Fourth Amendment search occurred in this case. In Kyllo, police officers utilized thermal-imaging technology to scan the inside of a house to detect the presence of heat in amounts consistent with the presence of high-intensity lights used to grow marijuana. See 533 U.S. at 29-30. The Supreme Court ruled the scan a search under the Fourth Amendment because the government used “sense-enhancing” technology to obtain information from the inside of a home that the police could not otherwise obtain “without physical intrusion into a constitutionally protected area.” Id. at 34. Unlike in Kyllo, where the defendant confined his illegal activities to the interior of his home and relied on the privacy protections of the home to shield these activities from public observation, Norris’s activities reached beyond the confines of his home, thereby negating any expectation of privacy. See Katz, 389 U.S. at 351.

United States v. Karo, 468 U.S. 705 (1984), is equally distinguishable. In Karo, the United States Supreme Court held that the government’s monitoring of a beeper inside a private residence violated the Fourth Amendment because the beeper provided location information that could not have been obtained from outside the curtilage of the house. See id. at 708, 714; see also Silverman v. United States, 365 U.S. 505, 506, 509-12 (1961) (holding that a Fourth Amendment search occurred when police inserted a “spike mike” into a house to overhear conversations of the house next door); Jardines, 569 U.S. at 4 (concluding that a Fourth Amendment search occurred when police used a drug-sniffing dog along the front porch (the curtilage) to establish the location of marijuana inside a house). Unlike in Karo, Silverman, and Jardines, the agents in this case collected information from non-constitutionally protected areas, and they collected no information from inside Norris’s residence. Thus, Norris lacked any expectation of privacy in the emission of the signal strength of the MAC address emanating from outside his apartment. See Borowy, 595 F.3d at 1047-48.

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