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.
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)