D.Ore.: Entry onto front yard to attempt to electronically read wireless usage was trespass on curtilage under Jones; ambiguous information didn’t show PC

The use of a “Shadow” radio device to find wireless signals in an area associated with suspect IP address subscribers was not a Fourth Amendment search, and defendant had no reasonable expectation of privacy in a radio signal emitting from his house. Going on to defendant’s lawn, however, invaded the curtilage. Then, an ambiguous usage spike didn’t provide probable cause to believe that child pornography was being obtained. United States v. Broadhurst, 2012 U.S. Dist. LEXIS 168893 (D. Ore. November 28, 2012):

Defendant contends Detective Link’s actions fall squarely within the definition of a search under Jones. Detective Link trespassed on defendant’s front lawn to obtain data with the Shadow regarding the location of the suspect station device. The government does not dispute that Detective Link trespassed on defendant’s front lawn and offers no exigent circumstance for Detective Link’s actions. (Resp. [42] at 15). I agree with defendant that Detective Link engaged in a warrantless search in violation of the Fourth Amendment when he physically trespassed on defendant’s protected private property for the purpose of obtaining information.

Four non-exhaustive factors are examined to determine whether an area is part of a home’s curtilage: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” United States v. Dunn, 480 U.S. 294, 307 (1987); see Perea-Rey, 680 F.3d at 1184 (applying Dunn factors). “These factors do not yield a definite answer; rather they guide courts in determining whether the area is so intimately connected to the home that it should fall under the umbrella of the Fourth Amendment’s protections.” United States v. Johnson, 256 F.3d 895, 911 (9th Cir. 2001) (en banc) (Kozinski, J., concurring). Here, all four factors are met. The front lawn is next to the home and is included in the mixed enclosure of trees, shrubbery, and fence surrounding the home. The lawn appears well-kept with trimmed grass and trees, a garden, and a dog house. In addition to the enclosures, the lawn had at least two “Private Property/No Trespassing” signs. Because all four factors are satisfied, the front lawn is curtilage. Therefore, defendant’s front lawn is afforded the same Fourth Amendment protection as the home, see Duenas, 691 F.3d at 1081, and Detective Link’s trespass constituted an unlawful search under the Fourth Amendment, see Perea-Rey, 680 F.3d at 1186.

. . .

Perhaps some of this missing information in the warrant affidavit could be attributed to the fact that this investigation was the first time the Clackamas County Sheriff’s Office used the Shadow. Nonetheless, an officer must provide the issuing judge with sufficient information to understand the technology at issue. And although the suppression hearing more fully explained the Shadow technology, this information cannot be used retrospectively to evaluate the legality of the warrant affidavit. See Stanert, 762 F.2d at 778.

Consequently, an ambiguous spike coupled with a limited description of the Shadow technology did not establish a “fair probability” that evidence of child pornography crimes would be found in defendant’s residence.

The GUID confirmation also failed to support a finding of probable cause to search defendant’s residence. While the consistent GUID confirmed Deputy Sheriff Schweitzer’s belief that one peer with one computer was accessing multiple Internet connections, none of the IP addresses associated with this GUID was subscribed to defendant’s residence. Therefore, the GUID confirmation actually suggested that defendant’s residence might not have been the location of the suspect station device. This, too, undermined a finding of probable cause.