Friday, January 25, 2013

Private Searches, Wireless Networks and the 4th Amendment

After he was charged with “one count of Transportation of Child Pornography and one count of Possession of Child Pornography” in violation of federal law, John Henry Ahrndt filed a motion to suppress certain evidence, which the federal district court judge who has the case denied.  U.S. v. Ahrndt, 2013 WL 179326 (U.S. District Court for the District of Oregon 2013).  

When the judge denied his motion, Ahrndt “entered a conditional guilty plea to Count 2,” the possession charge, the prosecution dismissed the other count and he was sentenced to “the mandatory minimum of 120 months” in prison on Count 2.  U.S. v. Ahrndt, supra. (You can find my post on that decision here.)

Ahrndt appealed the denial of his motion to the U.S. Courtof Appeals for the 9th Circuit, which reversed and remanded the case to the district court “for additional fact finding” regarding the actions that led to the discovery of the evidence at issue.  U.S. v. Ahrndt, 475 Fed. App’x 656 (9th Cir. 2012). The district court judge then granted his motion to withdraw his guilty plea and granted the prosecution’s motion to dismiss Count 1 (the transportation charge), so Count 2 is all that is left of the case. U.S. v. Ahrndt, supra.

In this opinion, the district court judge is ruling, again, on Ahrndt’s motion to suppress.  U.S. v. Ahrndt, supra.  He is basing this ruling on evidence presented at the evidentiary hearing he originally held on the motion and on a second hearing he held after the issue was remanded to him.  U.S. v. Ahrndt, supra.  Since the facts are critical to the ruling, I need to outline them in a fair amount of detail (though less than the opinion does).

We start with the wireless network problem:

On February 21, 2007, a woman [`JH’] was using her computer at her home in Aloha, Oregon. She was connected to the internet via her own wireless network, but, when her network malfunctioned, her computer automatically picked up another nearby network called `Belkin54G.’ Belkin54G refers to a wireless router . . .  that broadcasts a wireless signal in a roughly 400 foot radius. Its default setting has no security.

At the second evidentiary hearing, defense expert Robert Young testified that JH's laptop would not have automatically connected to Belkin54G the first time she lost her signal. Instead, her computer would have sent a signal to search for wireless routers within range of her computer and the names of available wireless routers would have appeared in a list on her computer. JH would have clicked on Belkin54G to prompt her computer to connect to that wireless router. If the router was secured, she would have had to enter a password to connect to the wireless router.

Because the Belkin54G was not secured, JH connected without entering a password. From that time forward, her computer remembered the available connection and she did not have to select Belkin54G again when her own signal failed. Nevertheless, even after that first time, to connect to Belkin54G, JH's computer needed to send a signal into Ahrndt's computer and the router's processor to use the wireless network.

U.S. v. Ahrndt, supra.  The opinion notes that a Belkin54G router comes with CD manual that notes the need to secure networks, but there was “no evidence” Ahrndt had read or received this manual. U.S. v. Ahrndt, supra. 

After JH went online via the Belkin54G network, she opened her iTunes software to listen to music. U.S. v. Ahrndt, supra.  The opinion explains that the software lets users

browse music and video stored in the iTunes libraries of other computers on the same network, if those libraries are enabled to `share.’ . . . iTunes software on one computer (`computer 2) integrates with LimeWire installed on another (`computer 1’) so when the computers are on the same network iTunes will display media on computer 2 available through LimeWire on computer 1. . . . [W]hen JH opened her iTunes, she noticed another user's library -- `Dad's LimeWire Tunes’ -- was available for sharing. . . .

U.S. v. Ahrndt, supra. 

JH opened Dad's Limewire Tunes and observed files with names that prompted her to call the Washington County Sheriff's Office a little before 10:45 p.m. U.S. v. Ahrndt, supra.  The transcript of the call shows that she began with this:

`I just um was looking at my ITunes um and I, you can share music with people that are I guess in your area and I was just um sharing some music with this I guess it's a neighbor, I have no way of knowing where they are or whatever but it's a whole bunch of um underage child pornography. I just wanted somebody to know about that.’

U.S. v. Ahrndt, supra. 

JH gave her name, address and phone number and when she was asked, “[H]ow long ago did you get, receive that?’” she said

`Its up there now. I just turned on my computer and turned on my Itunes and just saw that I was sharing music so I just checked it and um I just saw it. I mean I didn't open any of the stuff but the names are all stuff about 11 year old girls and 9 year olds you know, just stuff that I don't it sounds inappropriate.’

U.S. v. Ahrndt, supra. 

Deputy John McCullough came to her house within an hour and JH showed him “a play list of approximately 25 picture and video files”, which “had pornographic titles that indicated” they “were of underage children.” U.S. v. Ahrndt, supra.  They could not open files or identify the owner.  U.S. v. Ahrndt, supra. McCullough called his sergeant to ask “`if it would be appropriate or not . . . to look further into those files and try to determine what was enclosed within them.’” U.S. v. Ahrndt, supra.  

After talking to his supervisor, McCullough concluded it would be acceptable to investigate and asked JH to open one of the files (by then, she was able to do so). U.S. v. Ahrndt, supra. They saw a “sexually explicit image of a boy masturbating” but JH’s computer lost the signal and she could not open other files.  U.S. v. Ahrndt, supra. 

JH told McCullough the Belkin54G showed as an available network on her computer when she moved in; at the time, only one other person lived in her development. U.S. v. Ahrndt, supra.  She pointed out an older house, about 150 feet away.  U.S. v. Ahrndt, supra. McCullough ran the plates of a car in the driveway of the house and learned that Ahrndt, a convicted sex offender, lived there. U.S. v. Ahrndt, supra. 

Two days later, Sheriff's Detective Ray Marcom and Department of Homeland Security Senior Special Agent James Cole interviewed JH.  U.S. v. Ahrndt, supra.  She told them “much of what she had told McCullough.” U.S. v. Ahrndt, supra.  She remembered one file name: “11–yr old masturbating .” She remembered words such as “tiny,” “fuck,” and “cunt,” in conjunction with acronyms like “5yoa” and “8yoa.” U.S. v. Ahrndt, supra.  Cole also spoke with McCullough, who reported that some of the age acronyms, like “5yoa,” were followed by the words “getting raped” and “being raped.”  U.S. v. Ahrndt, supra. 

On April 7, 2007, Cole got a search warrant to “access the Belkin54G wireless network for the purpose of determining the internet protocol (`IP”) address associated with the router.” U.S. v. Ahrndt, supra. That same day, he drove near the house, accessed the Belkin54G network, and determined its IP address. U.S. v. Ahrndt, supra.  He used the American Registry for Internet Numbers to determine that it was a Comcast IP address and used a summons served on Comcast to learn Ahrndt was the subscriber for that IP address.  U.S. v. Ahrndtsupra. 

On April 17, Cole got a second warrant to search Ahrndt’s home for wireless routers, computers, and any files or storage media that could contain images of child pornography. U.S. v. Ahrndt, supra.  The next morning officers searched Arndt’s home and seized “one tower computer, a Belkin wireless router, various hard drives, numerous disc media and flash media.”  U.S. v. Ahrndt, supra. 

When the agents interviewed Ahrndt, he admitted “downloading child pornography as recently as eight months” before, using LimeWire, but “had deleted any images he downloaded from that time.”  U.S. v. Ahrndt, supra.  A forensic examination of the equipment found “20 images, 17 of which depicted children engaged in sexually explicit conduct.” U.S. v. Ahrndt, supra.  The first three were “advertising pages in an `orphan’ file, meaning its parent file had been deleted.” U.S. v. Ahrndt, supra. 

The next four were in a Google Hello “scache,” indicating they had been sent or transmitted. U.S. v. Ahrndt, supra.  Image 8 was a .mpg movie that had been viewed in Windows Explorer or by using a My Computer thumbnail or filmstrip view. U.S. v. Ahrndt, supra.  Image 9 was a deleted file and the last ten images were deleted files recovered from the flash drive. U.S. v. Ahrndt, supra.  The opinion notes there was evidence Ahrndt had used LimeWire to download child pornography eight months earlier, but “no evidence he was using iTunes or deliberately sharing files.”  U.S. v. Ahrndt, supra. 

The judge then turned to Ahrndt’s argument that McCullough’s conduct constituted a search that was unlawful under the 4th Amendment because it was justified neither by a search warrant nor by an exception to the warrant requirement.  U.S. v. Ahrndt, supra.  He found, first, that McCullough’s viewing the file names in Dad’s LimeWire Tunes did not violate the 4th Amendment because he did nothing JH had not already done.  U.S. v. Ahrndt, supra.  

As I have noted in prior posts, the 4th Amendment only applies to state action, i.e., to law enforcement conduct, and so does not apply when a private person conducts what would otherwise be a 4th Amendment “search.”  As I have also noted, the Supreme Court has held that it does not violate the 4th Amendment for an officer to view evidence a private party has already discovered. 

The judge then addressed the next issue:  whether McCullough’s directing JH to open an image was an unlawful 4th Amendment “search”, because it exceeded the scope of what JH had done on her own.  U.S. v. Ahrndt, supra.  He found that it did exceed the scope of what she did, and so was an unlawful search.  U.S. v. Ahrndt, supra. 

The judge then took up the third issue, whether McCullough’s clicking on the image

violated Ahrndt's 4th Amendment rights. [T]o assess [his] 4th Amendment rights, I must evaluate whether any subjective expectation of privacy was objectively reasonable. . . . [M]y previous opinion incorrectly framed the issue as whether it is reasonable to have an expectation of privacy in the contents of a shared iTunes library on a personal computer connected to an unsecured home wireless network. 

In fact, the issue is whether it is reasonable to have an expectation of privacy in the contents of a LimeWire file, when there is no evidence of intentional sharing over the wireless network or the internet, on a personal computer connected to an unsecured home wireless network.

U.S. v. Ahrndt, supra (emphasis in the original). (As I have noted in earlier post, a 4th Amendment “search” violates a “reasonable expectation of privacy” in a place or thing.)

The judge found that Ahrndt’s 4th Amendment expectation of privacy in his computer “was not eliminated when he attached it to his unsecured wireless network router.”  U.S. v. Ahrndt, supra.  He based that, in part, on the fact that the manual that presumably came with the router noted the need for security but did not warn users that not securing their network could make their files accessible to others. U.S. v. Ahrndt, supra.  

He also found there was no evidence Ahrndt was sharing files on the peer-to-peer network:

[T]he evidence suggests LimeWire was likely configured to run whenever Ahrndt turned his computer on. The evidence also suggests [it] was set to its default mode of sharing content on Ahrndt's [network] making that content `accessible for Itunes and other Digital Audio Access Protocol enabled Players.’ . . .  [T]o preclude LimeWire from sharing with iTunes on his network, Ahrndt would have had to seek out and uncheck the sharing option, or choose to require a password for those wishing to access the contents of his LimeWire file.. . .[T]here is no evidence Ahrndt `intentionally’ enabled sharing of his files over his wireless network.

U.S. v. Ahrndt, supra. 

The judge therefore held that McCullough’s “clicking on the image in JH's iTunes directory to open the image violated Ahrndt's 4th Amendment rights”, which meant that his “description of the image, and any related tainted evidence, must be stricken from” the affidavit Agent Cole used to get the search warrant.  U.S. v. Ahrndt, supra. 

The judge then addressed whether there would have been probable cause to issue either the warrant to obtain Ahrndt’s IP address or to search his house if McCullough’s description of the image had not been included in the affidavit used to get both.  U.S. v. Ahrndt, supra.  Ahrndt conceded that a magistrate might have issued the first warrant, but argued that, “lacking specific titles and the description of an image, a magistrate would never have authorized police to invade Ahrndt's home and search his personal computer.”  U.S. v. Ahrndt, supra. 

The judge agreed, and therefore ordered that the “evidence obtained from his storage media” and his statements to the officers be suppressed, which probably ends the case. U.S. v. Ahrndt, supra.

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