After being charged with possessing child pornography in
violation of 18 U.S. Code § 2252(a)(4)(B), Richard Stanley moved to suppress certain
evidence. U.S. v. Stanley, 2012 WL 5512987 (U.S. District Court for the Western District of Pennsylvania 2012).
On
May 24, 2012, the district court judge held a hearing on his motion, at which
it “heard testimony from Cpl. Robert Erdely (retired) of the Pennsylvania State
Police” and received “certain exhibits” into evidence. U.S. v.
Stanley, supra. In this opinion, the judge is ruling on the motion to
suppress.
In the paragraphs below, I’m summarizing the judge’s very
detailed description of the investigation that led to the charges against
Stanley. Everything below comes from the
opinion cited above. U.S. v. Stanley, supra.
On November 11, 2010, Erdely was investigating the
distribution of child pornography files over peer-to-peer file-sharing networks
when he discovered
a computer sharing seventy-seven files on the Gnutella network. By using hash
values for known child pornography, he confirmed that “several” of the files
contained child pornography. U.S. v. Stanley,
supra.
Erdely identified the globally unique identification (“GUTD”) of the
person sharing these files on the Gnutella network as “8754E6525772BA0134C4C6CACF12E300”
(“300 GUID”). U.S. v. Stanley,
supra. He also identified that
the subject computer was using an IP address of “98.236.6.174.” Using
publically available records, Erdely determined that the IP address was subscribed to through Comcast Cable and got a court order directing Comcast to identify the subscriber of that address. U.S. v. Stanley,
supra. Comcast said it was assigned to William Kozikowski and provided his home address in Allegheny County.
Based on the information above, Erdely obtained and executed a search
warrant for Kozikowski's home. He found two computers, but neither contained
file-sharing software with the 300 GUID. Erdely learned that Kozikowski was
running a wireless network in which one computer was connected to the wireless
router via a cable, while another was connected to it via a signal. Kozikowski's
network was unsecured, i.e., did not require users to enter a username and
password to connect. Kozikowski told Erdely he had not given anyone outside his
home permission to use his internet connection. U.S. v. Stanley,
supra.
Kozikowski left his router unsecured and let Erdely place a computer in
his home and connect it to his router. On January 19, 2011, Erdely
was using a computer system in Harrisburg that let him view the search results
of other officers’ investigations of child pornography. He learned that Jessica Eger, an employee of
the Pennsylvania Attorney General's Office and Paula Hoffa, an investigator
with the Hartland Police Department, each identified a computer sharing child
pornography that had the same 300 GUTD as the subject computer identified by
Erdely. U.S. v. Stanley,
supra.
After learning about their investigations, Erdely logged into the computer
in Kozikowski's home from his computer in Harrisburg and examined the
configuration of his wireless router. The
215 IP address was assigned to Kozikowski's router; its logs showed a computer connected
to it with a private IP address of “192.168.2.114” and a MAC address of
“mac=00–lC–B3–B4–48–95”. U.S. v. Stanley,
supra. The networking card was an Apple wireless device,
which led Erdely to believe the computer using the private 114 IP address was
an Apple computer. U.S. v. Stanley,
supra. Neither of Kozikowski’s computers was an Apple computer.
Erdely learned that the computer using the private 114 IP address was
using port 6346 to interact with other devices assigned IP addresses. U.S. v. Stanley,
supra. He had seen port 6346 used consistently by
persons using the Gnutella network to view and share child pornography.
Erdely decided to use Moocherhunter to locate the computer assigned the
114 IP address. He had received “a few minutes of training” on the use of
Moocherhunter and used a free version of the program, which was available on the
manufacturer's website. U.S. v. Stanley,
supra. According to the opinion, the site described Moocherhunter as a free
mobile tracking software tool for the real-time on-the-fly geo-location of
wireless moochers, hackers and users of wireless networks for objectionable
purposes”. U.S. v. Stanley, supra.
The program has an “active mode and a passive mode”; Erdely
used it in the passive mode. U.S. v. Stanley, supra. “In the passive
mode, the user . . . enters the MAC address of a wireless router that is
connected to a wireless device and traces the signal of that wireless device
from the wireless router back to its source.” U.S. v. Stanley, supra. Erdely downloaded the “software to his laptop, connected a
directional antenna to his laptop, and used a USB wireless card to connect to
Kozikowski's wireless router.” U.S. v.
Stanley, supra.
Moocherhunter provides a reading that indicates how
close the user of the software is to the source of a signal, with 100 being the
highest possible reading. Erdely followed the signal from Kozikowski's wireless
router and pointed the antenna across the street from his residence, which is
directly across the street from Stanley's residence. . . . Stanley's residence
is one unit in an apartment complex comprised of six units. . . .
When Erdely pointed the antenna . . .
toward the . . . building in which Stanley resided, the meter reading was 67.
Erdely . . . walked across the street to the sidewalk in front of the apartment
building in which Stanley's unit was located. . . .
When [he] stood on the sidewalk in
front of Stanley's residence and pointed the antenna toward the front door . .
., the meter reading was 100. When Erdely pointed the antenna to the left or
right of Stanley's residence, the meter reading weakened. Based on the
Moocherhunter readings, Erdely determined the signal from the computer assigned
the 95 MAC address to connect to Kozikowski's wireless router was emanating
from Stanley's residence.
U.S. v. Stanley,
supra.
Erdely used the information he had obtained to get a search
warrant for Stanley’s residence, which he executed. U.S. v.
Stanley, supra. Evidence “obtained
from the search of Stanley’s home and computer” was used to charge him with
possessing child pornography, and was therefore the focus of the motion to
suppress noted above. U.S. v. Stanley, supra. Stanley apparently argued that the search of
his home and computer violated the 4th Amendment because while it
was conducted pursuant to a warrant, the warrant was the product of another
search that violated the 4th Amendment. U.S. v.
Stanley, supra. He claimed Erdely’s
use of Moocherhunter to track the wireless signal to his home was a 4th
Amendment “search.” U.S. v. Stanley, supra.
The judge began her analysis of Stanley’s argument by noting
that it required her to determine whether he “had a legitimate expectation of
privacy in the wireless signal he caused to emanate from the computer in his
home to Kozikowski's wireless router and the wireless signal he received back
from Kozikowski's wireless router in order to connect to the internet.” U.S. v.
Stanley, supra. As Wikipedia notes,
and as I have explained in prior posts, the 4th Amendment bans
“unreasonable” searches and to be “reasonable” a “search” must either be
conducted pursuant to a warrant or to an exception to the warrant
requirement.
As I’ve also explained in prior posts, a “search” violates a
“reasonable expectation of privacy” in a place or thing. In Katzv. U.S., 389 U.S. 347 (1967), the Supreme Court held that one has a
reasonable expectation of privacy in a place or thing if (i) they believe
(subjectively) that it is private and (ii) society agrees that their belief is
objectively reasonable. For more on
that, check out this prior post.
The judge began her analysis of whether using Moocherhunter
to track the wireless signal was a search by citing the Katz test and then pointing out that the Supreme Court “has held
that under the 4th Amendment, there is no reasonable expectation of privacy in
information voluntarily conveyed to third parties.” U.S. v.
Stanley, supra.
The case the judge was referencing was the Court’s decision
in Smith v. Maryland, 442 U.S. 735 (1979), which I’ve discussed in prior
posts. In Smith, the Court held that a man did not have a 4th
Amendment expectation of privacy in the numbers he dialed from his home phone,
and which were recorded by a pen register officers had installed on his phone,
because he voluntarily conveyed that information to the phone company. As I’ve noted, the Smith Court found that if someone shares information with another
person, they assume the risk that the person will betray them by sharing it
with other parties.
The judge in this case essentially found that it was
indistinguishable from Smith:
Here, Moocherhunter monitored the
strength of a signal that Stanley voluntarily caused to send from his computer
to Kozikowski's wireless router and to receive a signal back from the wireless
router in order to gain unauthorized access to Kozikowski's internet
connection.
In both cases, the party seeking
suppression of evidence assumed the risk that information disclosed to a third
party may be turned over to the police. Notably, Moocherhunter, like the pen
register, did not reveal the contents of the communications; it only revealed
that communications were taking place.
U.S. v. Stanley,
supra.
The judge also noted that
[e]ven though that signal was sent from
and to the inside of Stanley's home and revealed there was a computer inside of
the home, no expectation of privacy existed. By connecting to Kozikowski's
wireless router, Stanley exposed his wireless signal to a third party and
assumed the risk that the signal would be revealed to the authorities.
Like the defendant in Smith who
dialed a telephone number from inside his home, Stanley cannot hide behind
sending the signal from inside his home and claim he had a reasonable
expectation of privacy in the signal.
U.S. v. Stanley,
supra.
She therefore held that Stanley
did
not have a reasonable expectation of privacy in the wireless signal he caused
to emanate from his computer to Kozikowski's wireless router or the wireless
signal he received from Kozikowski's wireless router in order to connect to the
internet. The information logged on that wireless router was accessible to
Kozikowski and through his consent, to Erdely.
This information showed the private IP
address of Stanley's computer. Stanley, therefore, could have no reasonable
expectation of privacy in the signal he was sending to or receiving from
Kozikowski's wireless router in order to connect to the internet.
U.S. v. Stanley,
supra.
Finally, she also rejected Stanley’s argument that Erdely’s
use of Moocherhunter was a 4th Amendment “search” under the Supreme
Court’s decision in Kyllo v. U.S., 533 U.S. 27 (2001). U.S. v. Stanley, supra.
As I explained in a prior post, in Kyllo the Supreme Court held that it is a 4th Amendment
“search” to use technology that is not in general public usage to obtain information
from inside a home that could not otherwise be obtained except by entering the
home. The judge found that Kyllo did not apply because, unlike Kyllo, Stanley voluntarily shared the
information at issue with a third party.
U.S. v. Stanley, supra.
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