Wi-fi Privacy, Dogs and Apartments

This is a follow-up to my last post, which, of course, was a follow-up to the earlier post I did on U.S. v. Ahrndt. (And I anticipate that this will be my last wi-fi privacy post for a bit.)

In this post, I’m going to extrapolate a bit on the 4^th Amendment. In so doing, I’ll probably refer back to the facts and holding in U.S. v. Ahrndt; since I won’t repeat them here, you should check that post (“Wi-fi Privacy?) for those details. Amendment principles I talked about in that last post.

The Ahrndt court held that Ahrndt didn’t have a 4^th Amendment reasonable expectation of privacy in files available for sharing via an unsecured wireless network. The Ahrndt judge said there definitely is a “lower [4^th Amendment] expectation of privacy in unsecured wireless networks”, but also factored the file-sharing aspect of the case into his holding that it wasn’t a search for a law enforcement officer to check out some of those files, using Ahrndt’s unsecured wireless network.

In my last post, I extrapolated a bit from the Ahrndt case, explaining that, IMHO, there’s a good argument that if you don’t secure your wireless network any signals that leak out of your residence into the area surrounding it aren’t protected by the 4^th Amendment. As I noted in my last post, I can see an argument that the signals have moved outside the 4^th Amendment bubble of privacy that encompasses your home (and here, I’m assuming a free-standing house) and into “open fields”, where they lose 4^th Amendment protection.

As I explained in my last post, the open fields argument is based on the principle the Supreme Court applies when someone argues that police trespassing on land around their home violated a 4^th Amendment expectation of privacy. Under that principle – the open fields doctrine – a free-standing house is divided into two zones for 4^th Amendment purposes: the home itself and the bubble of space immediately around it (known as the curtilage) are protected by the 4^th Amendment’s guarantees of privacy; the area outside the home and outside the curtilage is considered "open fields" and is therefore not protected. The area outside the curtilage is considered open fields even if you live in a suburb where your yard isn’t exactly expansive, i.e., isn’t the equivalent of the ranches at issue in the two Supreme Court cases I talked about in my last post.

As far as I’m concerned, the open fields-curtilage analysis doesn’t make sense anywhere, let alone when it comes to suburban homes. There is, though, another area where it becomes even more problematic: apartments. To illustrate what I mean, I’m going to use a case involving a drug dog and marijuana.

The case is Fitzgerald v. State, 384 Md. 484, 864 A.2d 1009 (Maryland Supreme Court 2004), and here is how it arose:

In February 2002, an anonymous source informed Detective Leeza Grim of the Howard County Police Department . . . that [Matthew] Fitzgerald and his girlfriend Allison Mancini lived in an apartment at 3131 Normandy Woods Drive in Ellicott City. . . . The source stated that Fitzgerald and Mancini drove a white pick-up truck and sold a high quality grade marijuana called `Kind Bud.’ Grim's subsequent investigation confirmed that the couple lived in the building and the car was registered to Alicia Joy Mancini, apparently Allison’s relative. Grim also learned Fitzgerald had a juvenile record of 1998 arrests for distribution of marijuana near a school and for three first-degree burglaries. . . .

Grim met with Officer Larry Brian of the Police Department's K-9 unit on March 19. Brian then visited Fitzgerald and Mancini's apartment building accompanied by Alex, Brian's certified drug detecting dog. . . . Brian and Alex entered the building through unlocked glass doors leading to a vestibule with a stairwell and mailboxes. Brian led Alex to scan apartment doors A, B, C, and D. Alex `alerted’ at apartment A, indicating the presence of narcotics. Apartment A was Fitzgerald and Mancini's apartment. Sniffs of the other three apartments did not result in alerts. Alex repeated the sniffs with the identical outcome. Finally, on March 20, the anonymous source contacted Grim again and asserted that Fitzgerald and Mancini continued to sell `Kind Bud’ marijuana

The next day, District Court Judge Ellinghaus-Jones issued a search warrant for Fitzgerald and Mancini's apartment based on Grim's affidavit. The warrant was executed on April 2, 2002. Grim seized substantial amounts of marijuana and other evidence of marijuana use and distribution. Fitzgerald and Mancini were arrested and charged with possession of marijuana with intent to distribute and related offenses.

Fitzgerald v. State, supra. (If you’re wondering what Alex did to alert, Officer Brian said “he sits there in that area, and what . . . he'll sit and he looks at me and that is his indication to me that he smells the presence of a narcotic.’” Fitzgerald v. State, supra.)

Fitzgerald moved to suppress the evidence obtained as a result of the execution of the warrant, claiming “a canine sniff of an apartment’s exterior is a search under the 4th Amendment.” Fitzgerald v. State, supra. This argument has two aspects: whether the area outside an apartment door is curtilage; and whether a dog triggers the Supreme Court’s decision in Kyllo v. U.S., 533 U.S. 27 (2001). We’ll start with the curtilage issue and then get to Kyllo.

A few courts have indicated that an officer’s having a drug detection dog like Alex sniff the immediate exterior of a home, e.g., a front door, is a 4^th Amendment search because the dog and the officer are within the curtilage of the home. State v. Rabb, 920 So.2d 1175 (Florida Court of Appeals 2006). Most courts, though, have reached the opposite conclusion as long as the officer and the dog were standing on a part of the curtilage – such as the area outside a front door – that is open to use by guests, delivery people and even total strangers. State v. Jardines, 9 So.3d 1 (Florida Court of Appeals 2008).

Courts distinguish an officer's presence (with or without a dog) on a public area of the curtilage from cases in which courts have held that an officer’s walking onto a non-public area of the curtilage (e.g., the side of the home) and peering through a window to see what’s inside is a 4^th Amendment search because the officer is within the bubble of 4th Amendment protection that surrounds the home. State v. Carter, 569 N.W.2d 169 (Minnesota Supreme Court 1997).

Most courts have held that an officer’s walking a drug dog down an apartment hallway so the dog can detect odors emanating from the apartment doors isn’t a 4^th Amendment search, because the officer isn’t on the curtilage of a home. Some courts have analogized apartment hallways to public sidewalks; the Fitzgerald court held it wasn’t a search to have Alex sniff Fitzgerald’s apartment door because Alex and Brian were in “the apartment building’s common area and hallways were accessible to the public through . . . unlocked glass doors.” Fitzgerald v. State, supra.

I know signals from unsecured wireless networks leak outside houses, so I’m going to assume they also leak outside apartments. If those assumptions are valid, they inferentially indicate that a law enforcement officer walking down the hallway of an apartment carrying a laptop can detect unsecured wireless signals seeping into the hallway, just as the odor of marijuana leaked from Fitzgerald’s apartment into his hallway. If an officer were to do this, would that then constitute a 4^th Amendment search or would the result be the same as in the dog sniff cases?

This is where Kyllo comes in: As I explained in my post on the case, in Kyllo the Supreme Court held that it is a 4^th Amendment search for an officer, even standing outside a home’s curtilage, to use “technology not in general public use” to detect information from inside the home that he could not otherwise obtain except by actually entering the home. What happens if we factor Kyllo into the scenario I outlined above?

Lots of defendants have argued that the use of drug detection dogs like Alex is a search under Kyllo, but so far they’ve lost. One issue that arises there is whether a drug dog is “technology”. Courts seem to have consistently held that a drug dog isn't "technology," perhaps because a dog isn't mechanical or electrical technology. (I say a dog can be technology because technology can be biological as well as mechanical, but I haven’t seen that argument made yet.) The "isn't-technology" argument won’t arise here because the laptop the officer’s using (I’m using a laptop for a reason; it could be any appropriate technology) is definitely technology.

No one’s sure what the Kyllo Court meant by “not in general public use,” but I think it’s pretty clear that a laptop, even one capable of detecting wireless signals, is in general public use. Not everyone has one, but lots and lots of people do, and all that's needed to acquire one is to buy it (or maybe borrow it). If a laptop is in general public use, I don’t see why an officer couldn’t use a laptop (or any other technology that’s in general public usage) to detect wireless signals leaking into an apartment hallway without violating a 4^th Amendment expectation of privacy (at least, under the law as it now stands). If apartment hallways are open to the public, then, according to some courts, what the officer is doing is indistinguishable from his carrying the laptop down a public sidewalk (or driving along a street with it in his car).

If that works, then the laptop can be used in a fashion analogous to the way officers use drug dogs: In the Fitzgerald case, the officer used the dog to get information to establish probable cause for a warrant to search the apartment. I assume the laptop’s detecting wireless signals (and, perhaps, files available for sharing) could be used in much the same way: If using the laptop (like using a drug dog) isn’t a 4^th Amendment search, the officer can walk down the hallway with the laptop (or whatever technology) without getting a warrant or having probable cause or any level of 4th Amendment suspicion. The information, if any, obtained by the walk could then be used to get a search warrant, just as it was in the Fitzgerald case.

I'm not arguing that this should be the outcome under the 4th Amendment. I'm just speculating as to what happens if we extrapolate the result in cases like Fitzgerald to leaking wi-fi signals.