Wi-Fi, Curtilage and Kyllo

After being indicted for “interstate cyberstalking” in violation of 18 U.S. Code § 2261A and identity theft in violation of 18 U.S.Code § 1028, Shawn Sayer filed a motion to suppress certain of the evidence the government intended to use at trial.  U.S. v. Sayer, 2012 WL 2180577 (U.S.District Court for the District of Maine 2012).

This, according to the opinion in which the court rules on the motion, is how the case arose:

While living in Maine, the victim dated [Sayer]. In January 2006, after they broke up, [he] began to stalk and harass the victim. . . . [Sayer] was convicted in Maine Superior Court for stalking the victim [who] obtained a protection from abuse order against [him] and in February 2008 [Sayer] was convicted of violating that protective order. On several occasions in October 2008 men came to the victim's home saying they had met her on the Internet and were looking for sexual encounters. Later, [she] found an ad on Craigslist under the heading `casual encounters’ that provided pictures of her in lingerie [Sayer] had taken before they split up. . . . [T]he ad included directions to her home and a list of `sexual things’ she would do when they got there.

To get away from the stalking, [she] changed her name and moved to Louisiana. In August 2009, the same thing started to happen -- men whom she did not know started to arrive at her home in Louisiana, saying they had met her on the Internet and were looking for sexual encounters. During August 2009, a sexually explicit video of the victim, consensually taken with [Sayer] while they were dating, was posted on several adult pornography sites. These sites also listed the victim's new name as well as her original given name and her Louisiana address. The internet postings were not made by the victim.

In September 2009, a new Facebook account was created in [her] name and included a photograph of her. The victim did not create this account, but the IP address of where the account was created was in Biddeford, Maine and assigned to Richard Cook, who lived across the street from [Sayer] and had an unsecure wireless internet connection. 

U.S. v. Sayer, supra.

(As the judge notes, the “government’s contention” in the indictment is that after she moved to Louisiana to “escape him,” Sayer, who was “still in Maine”, created the “fictitious internet advertisements and social media profiles” described above for the purpose of cyberstalking the victim.   U.S. v. Sayer, supra.)

“Based on” the information outlined above, a federal judge issued a warrant to search Sayer’s home “and to seize computers, computer equipment, cameras, and computer records or data.”  U.S. v. Sayer, supra.  That led to his being indicted on the charges noted above and to the issuance of the search warrant.  U.S. v. Sayer, supra.

Sayer’s first argument in his motion to suppress was “that law enforcement violated his Fourth Amendment rights by obtaining certain information without a warrant on October 29, 2009, inside the curtilage of his residence.”  U.S. v. Sayer, supra.  More precisely,

[w]hat law enforcement did was drive into his driveway entrance, ostensibly to turn around, and while in the entrance used a laptop computer to determine what wireless signals could be detected there.

U.S. v. Sayer, supra.  Whether what the officers did violated the 4th Amendment depends on the answers to two related questions:  Were the officers on the curtilage of Sayer’s residence when they checked for wireless signals?  And was checking for wireless signals a 4th Amendment “search”?  Like the judge, we’ll examine the questions in this order.

As Wikipedia notes, “curtilage” is a legal term that is used to “define the land immediately surrounding a house or dwelling. . . . within which a home owner can have a reasonable expectation of privacy [under the 4th Amendment].”  Basically, the concept of curtilage is used to distinguish between the area proximate to a home, which is protected by the 4th Amendment’s ban on “unreasonable” searches and seizures, and the area beyond the curtilage, which is considered “open fields” not protected by the 4th Amendment.  The issue arises because the 4th Amendment creates a right to be free from unreasonable searches of our “persons, houses, papers, and effects”.  Houses and their contents, then, are clearly protected; and since land surrounding the home is neither “papers,” “persons” nor “effects”, the issue was whether the 4th Amendment only applies to the home and its interior or also protects at least some of the surrounding land. 

In U.S. v. Dunn,480 U.S. 294 (1987), the Supreme Court noted that it has historically distinguished between the “curtilage”, which is protected, and “open fields” which, as noted above, are not.  Or, as this judge put it, the “`curtilage’” of a house is “an area that should be treated as the home itself as distinguished from open fields that might surround it.”  U.S. v. Sayer, supra.  The judge also noted that the Dunn Court said

curtilage questions should be resolved with particular reference to four factors: 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.

U.S. v. Sayer, supra (quoting U.S. v. Dunn, supra).

He applied these factors to the Sayer case and found the “officers did not invade the curtilage” of his residence.  U.S. v. Sayer, supra.  According to the judge, Sayer’s

driveway entrance satisfies none of those four factors. His driveway entrance is not close to his home; there is no enclosure; the area is used to access the driveway from the public street (for example by delivery people); and nothing protects the area from observation by people passing by. A photograph of the house and driveway makes that all obvious. . . .

Moreover, the First Circuit has stated: `If the relevant part of the driveway is freely exposed to public view, it does not fall within the curtilage.’ U.S. v. Brown,510 F.3d 57, 65 (1st Cir.2007). That is the case here.

U.S. v. Sayer, supra. 

He then took up the second question:  Sayer argued that “regardless of the legality of the driveway turnaround, it was still an illegal warrantless search to do a `wireless survey of WiFi/Internet signals’ on October 29, 2009.”  U.S. v. Sayer, supra.  In making this argument Sayer relied on the Supreme Court’s decision in Kyllo v. United States, 533 U.S. 27 (2001), which I’ve discussed in prior posts.

In Kyllo, federal agents who suspected Danny Lee Kyllo was growing marijuana in his

home in a triplex, . . . used a thermal-imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. The scan showed that Kyllo's garage roof and a side wall were relatively hot compared to the rest of his home and substantially warmer than the neighboring units. Based in part on the thermal imaging, a Federal Magistrate Judge issued a warrant to search Kyllo's home, where the agents found marijuana growing. 

U.S. v. Kyllo, supra. 

After Kyllo was indicted on a drug charge, he moved to suppress, claiming the use of the thermal imager was a 4th Amendment “search” which was unlawful because it was conducted without a warrant or an applicable exception to the warrant requirement.  U.S. v. Kyllo, supra.  He lost at the district court and court of appeals levels, but the Supreme Court agreed with him, holding that

obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical `intrusion into a constitutionally protected area,’ Silverman v. U.S., 365 U.S. 505 (1961), constitutes a search -- at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy . . . that existed when the 4th Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search.

U.S. v. Kyllo, supra. 

So, Sayer was trying to do the same thing Kyllo did, i.e., argue that the agents’ using a laptop to attempt to detect wireless signals was a 4th Amendment “search”, at least under Kyllo.  Unfortunately for Sayer, his judge did not buy the argument:

Unlike Kyllo, what law enforcement detected here was not a signal that was in or coming from [Sayer’s] residence; instead, the assertion is that the detected signals came from a wireless router in a neighbor's house across the street. (Apparently part of the government's case is that [Sayer] used others' wireless access so that his actions could not be traced to him.)

Moreover, the technology that they used is in general public use; anyone with a laptop with wireless capability can find evidence of WiFi signals. This is not Kyllo 's advanced technology `not in general public use.’

U.S. v. Sayer, supra. 

The judge also noted that if the officers did not “invade his curtilage,” Sayer “has no standing to object to their discovery of the signals they detected, because they did not come from [him] or his residence, but from others.”  U.S. v. Sayer, supra. 

As I noted in an earlier post, the legal term “standing” has a specific meaning in the context of 4th Amendment law. As a U.S. District Court explained, someone who is

seeking to exclude evidence allegedly obtained in violation of the 4th Amendment must have standing to challenge the illegal conduct that led to the discovery of the evidence. `[T]o say a party lacks 4th amendment standing is to say that his reasonable expectation of privacy has not been infringed. . . .’

U.S. v. King, 560 F.Supp.2d 906 (U.S. District Court for the Northern District of California 2008) (quoting U.S. v. Taketa, 923 F.2d 665 (9th Circuit Court of Appeals 1991)).

To establish that he had standing, Sayer had to show he had a reasonable expectation of privacy in the place and/or item searched. U.S. v. King, supra. As I explained in an earlier post, to have such an expectation, Sayer had to show (i) that he subjectively (personally) believed the place/thing was private and (ii) his belief is one society (objectively) is prepared to accept as reasonable.  According to this judge, Sayer had not done that.

If you’d like to read a little more about the case, including Sayer’s sentence, and see a photo of him, check out the news story you can find here.