After being charged with distributing child pornography and
receiving child pornography in violation of 18 U.S. Code § 2252A(A), Kyle Scott
Broadhurst moved to “suppress all evidence obtained as a result” of executing a
search warrant on his property. U.S. v. Broadhurst, 2012 WL 5985615
(U.S. District Court for the District of Oregon 2012).
The case began in May of 2010, when Deputy Sheriff
Schweitzer was investigating the use of peer-to-peer (P2P) networks to share child
pornography. U.S. v.
Broadhurst, supra. She traced the files to computers in the Linwood School
neighborhood and used Peer Spectre to record the time and date of the file
transmissions and the SHA–1 value and filenames of the files transmitted. U.S. v. Broadhurst, supra. She used her access to the P2P network to
obtain the IP addresses of the computers sharing the files. U.S. v. Broadhurst, supra. Over the next eight months, Schweitzer
used Peer Spectre and the P2P network to identify ten IP addresses in the
Linwood School neighborhood that were sharing thousands of child pornography
files. U.S. v. Broadhurst, supra.
On September 22, she used subpoenas to get
subscriber information for the ten IP addresses. U.S. v. Broadhurst, supra. They were registered to six residences
in the Linwood School neighborhood, including Broadhurst’s. U.S. v. Broadhurst, supra. Schweitzer determined
that the IP addresses’ Internet connections were accessible through unsecured
wireless networks. U.S. v. Broadhurst,
supra. She therefore believed that only one individual was accessing the
unsecured wireless networks to share child pornography files. U.S. v. Broadhurst, supra.
To find the device accessing the
unsecured networks, Schweitzer requested the assistance of Detective Link, who
purchased “the Shadow.” U.S. v.
Broadhurst, supra. According to the opinion, the Shadow is a handheld device about the size of a
smartphone that allows the user to observe and locate wireless access points
and station devices. U.S. v. Broadhurst,
supra. The judge explained that in
order to observe access points and station devices, the Shadow
receives wireless radio signals within
the immediate area. Access points and station devices emit these signals to
facilitate Internet connections. An access point sends out a signal announcing
its Internet connection, and a station device sends out a signal to locate
available access points.
The Shadow scans for these signals within range
and displays the results on a touchscreen. The results show the detected access
points and station devices and their relative signal strength. The Shadow can
also display which station device is connected to a detected access point.
U.S. v. Broadhurst, supra.
The judge also explained that the Shadow displays
the signal strength of a particular access point or station device selected by
the user. This signal strength, labeled Received Signal Strength Indicator
(`RSSI’), is displayed on the Shadow's screen in the range of –60 to 6. As the
Shadow gets physically closer to the selected access point or station device,
the signal strength increases and the RSSI displays a higher number.
Thus, the Shadow allows the user to locate a
particular access point or station device by displaying the access point or
station device's signal strength in real-time to the user.
U.S. v. Broadhurst, supra.
On December 21, Link observed a station device connected to an access
point with an IP address subscribed to one of the residences identified as
using a network to share child pornography. U.S.
v. Broadhurst, supra. The signal strength of the device was weak near the
residence, indicating it was probably not inside. U.S. v. Broadhurst, supra. On January 18, 2011, he observed the suspect
station device connected to a different access point with an IP address
subscribed to another residence identified as using a network to share child
pornography files. The signal strength of the station device was weak near that
residence, also. U.S. v. Broadhurst, supra.
On January 24, Schweitzer used “investigative software” to
determine that a station device with a GUID known to have shared child
pornography was using an IP address subscribed to the J. residence, which was one
of the residences identified as using a network to share child pornography. U.S. v. Broadhurst, supra. She also determined
the station device was actively uploading and downloading child pornography. U.S. v. Broadhurst, supra. Schweitzer advised
Link of this active network connection, and they met near the J. residence at
approximately 6:40 p.m. U.S. v.
Broadhurst, supra. Using the Shadow, Link determined that the device was
connected to an access point with an IP address subscribed to the J. residence
but, again, the Shadow showed that the signal strength of the suspect device
was weak near that residence. U.S. v. Broadhurst, supra.
To locate the device, Link walked
south on a sidewalk on the east side of Broadhurst’s residence at approximately
7:15 p.m. U.S.
v. Broadhurst, supra. While standing on the sidewalk directly east of a window on the
southeast corner of his home, he observed “a spike in signal strength” that correlated
with RSSI numbers between –7 to –11. U.S.
v. Broadhurst, supra. Link testified at the suppression hearing that the
spike was so significant that he immediately believed they had located the
right residence. U.S. v. Broadhurst,
supra.
Link then turned north on the sidewalk towards the driveway of Broadhurst’s
residence; when he reached the driveway, he turned walked up it towards the
residence. U.S. v. Broadhurst, supra. Near
its front entry, the signal strength weakened with RSSI numbers between –45 and
–39. U.S. v. Broadhurst, supra. Link
left the driveway and walked across the front lawn and up to the southeast
window, where he observed strong signals with RSSI numbers up to –5. U.S. v. Broadhurst, supra.
Link and Schweitzer then went to the J. residence and used the Shadow
to confirm that the suspect station device was not in that residence. U.S. v.
Broadhurst, supra. They left there and went back to
Broadhurst’s residence, where they used the Shadow device again, “mirror[ing”
Link’s “7:15 p.m. path with” it. U.S. v. Broadhurst, supra. He noted a spike
in signal strength on the sidewalk facing the window on the residence's
southeast corner and again “observed strong signals with high RSSI numbers
directly in front” of the southeast window. U.S. v.
Broadhurst, supra.
Schweitzer used the information outlined above and, I
assume, other information, to obtain a warrant for Broadhurst’s home. U.S. v.
Broadhurst, supra. The officers who executed it “collected evidence of
child pornography crimes” from his computers; the prosecution also sought to
use incriminating statements he made to those officers. U.S. v. Broadhurst, supra.
As noted above, he moved to suppress.
He argued (i) that the use of the Shadow constituted a “search” under
the 4th Amendment and/or (ii) that the officers unconstitutionally
trespassed on his property. U.S. v. Broadhurst, supra.
More precisely, Broadhurst argued that the Shadow
monitored signals emitting from his
station device, and thus it intruded upon a constitutionally protected privacy
interest in those signals. Therefore, because Schweitzer and Link did not
obtain a search warrant prior to using the Shadow, all evidence derived from
the Shadow must be suppressed.
The government responds that [Broadhurst]
lacked a reasonable expectation of privacy in the signals monitored by the
Shadow. As a result, use of the Shadow did not constitute a search under the 4th
Amendment.
U.S. v. Broadhurst,
supra.
The district court judge agreed with the prosecution,
explaining that this case
is very similar to those cases
recognizing no reasonable expectation of privacy in stolen property. See United
States v. Caymen, 404 F.3d 1196 (U.S. Court of Appeals for the 9th Circuit 2005) (`The 4th Amendment does not protect a defendant from a
warrantless search of property that he stole, because regardless of whether he
expects to maintain privacy in the contents of the stolen property, such an
expectation is not one that society is prepared to accept as reasonable.’) . .
.
Here, the Shadow monitored the station
device signals through the station device's connection to unsecured networks
and could not have measured the station device signal strength without this
connection . . . . Thus, when the Shadow was used to monitor the station device
signals coming from [Broadhurst’s] computer in his residence, the Shadow relied
on the station device's unauthorized connection to his neighbor's unsecured
network. Because the Shadow monitored the station device signals when the
station device had no authorization to be on that network, [Broadhurst] cannot
claim a reasonable expectation of privacy in the signals.
To put it more plainly: A defendant who
connects to the Internet by hijacking his neighbor's wireless network does not
have a privacy interest in the signals coming from his house that society is
prepared to recognize as reasonable.
U.S. v. Broadhurst,
supra.
The judge also noted that Broadhurst’s argument would create
inconsistent
expectations of privacy based only on
the means by which an individual shares child pornography files over the
Internet. On the one hand, this defendant would serendipitously receive 4th
Amendment protection because he hijacked another person's Internet connection
to share child pornography files. On the other hand, another individual who
uses his own Internet connection to share the same files lacks such protection,
merely because the IP addresses would track back to his house
U.S. v. Broadhurst,
supra. For this and the reason noted
above, he held that the use of the Shadow was not a 4th Amendment
search. U.S. v. Broadhurst, supra.
The judge did agree with Broadhurst on the issue of
trespass, noting that in
U.S. v. Jones, 132 S.Ct. 945 (2012), the Supreme Court held that a search under the 4th Amendment occurs
whenever `the [g]overnment obtains information by physically intruding on a
constitutionally protected area.’ . . .
The 9th Circuit Court of Appeals has interpreted Jones as
reaffirming the principle that `the home and its curtilage are sacrosanct’ and are
`areas expressly protected by the 4th Amendment.’ U.S. v. Duenas, 691
F.3d 1070 (U.S. Court of Appeals for the 9th Circuit 2012). Accordingly, after Jones, there is
no doubt that `[w]arrantless trespasses by the government into the home or its
curtilage are 4th Amendment searches.’ U.S. v. Perea–Rey, 680
F.3d 1179 (U.S. Court of Appeals for the 9th Circuit 2012)
U.S. v. Broadhurst,
supra. As Wikipedia explains,
curtilage is the area outside the home that is protected by the 4th
Amendment if it hosts the “intimate activities” associated with a home (as
opposed to commercial activities, say).
The judge noted that in deciding whether an area is within a
home’s curtilage, courts look at four factors:
the proximity of the area to the home, whether it is included within an
enclosure surrounding the home, the nature of the uses to which the area is
put, and the steps the resident has taken to protect the area from observation
by people passing by. U.S. v. Broadhurst, supra (citing U.S. v. Dunn, 480 U.S. 294 (1987)). He
found that all four factors were satisfied here, because 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, [Broadhurst’s] front lawn is
afforded the same 4th Amendment protection as the home . . . and Link's trespass constituted an unlawful
search under the 4th Amendment. . .
U.S. v. Broadhurst,
supra. (Indeed, the judge notes that
“[t]he government does not dispute that Link trespassed on” Broadhurst’s front
lawn. U.S. v. Broadhurst, supra.)
For these and other reasons, the judge granted Broadhurst’s
motion to suppress, holding that the “evidence obtained pursuant to the
execution of the search warrant and [Broadhurst’s] statements made during its
execution are suppressed.” U.S. v. Broadhurst, supra.
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