Case o' The Week: Freeloaders Forfeit Fourth - Norris, the internet, and curtilage

  Internet moochers get no Fourth love.

United States v. Norris, 2019 WL 5688802 (9th Cir. Nov. 4, 2019), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges Schroeder and O’Scannlain. Hard-fought appeal by former ED Cal AFPD John Balazs.  

Facts: The FBI investigated the distribution of child porn through a file sharing network. Id. at *1. The agent couldn’t determine the physical address for the porn’s source: “boysforboys1.” Id. A search of an apartment linked to this address revealed no evidence of child porn. Id.

  Using “Moocherhunter” software, the agents traced the suspected signal that – without permission -- logged onto the apartment’s router. The signal strength of the child-porn addresses suggested they originated in a different nearby apartment. Id. at *2. The agents got a search warrant for this second apartment and found child porn. Norris was charged. Id. at *3.

  Norris moved to suppress, “alleging that use of the Moocherhunter software amounted to a warrantless search in violation of the Fourth Amendment.” Id. The court relied on Jardines, and concluded that because there was no encroachment on Norris’s curtilage there was not a Fourth Amendment violation. Id. The court “concluded that Norris lacked a subjective, reasonable expectation of privacy, because he connected to a third-party’s router without authorization and assumed the risk that his signal would reveal the MAC address to authorities.” Id.

  Norris was convicted after trial and appealed.

Issue(s): “[ ] Norris seeks to have us apply the protections of the Fourth Amendment to the use of a wireless tracking program to identify the address of his wireless device.” Id. at *1.

Held: “[W]e conclude that no Fourth Amendment search occurred in the course of identifying Norris’s wireless device . . . .” Id. 

  “Although physically located in his home, Norris’s wireless signal reached outside his residence to connect to the wireless router in Apartment 242. The FBI captured Norris’s wireless signal strength outside Norris’s residence to determine the source of the signal. The FBI’s actions may be likened to locating the source of loud music by standing and listening in the common area of an apartment complex. Although the music is produced within the apartment, the sound carries outside the apartment. Just as no physical intrusion ‘on constitutionally protected areas’ would be required to determine the source of the loud music, no physical intrusion into Norris’s residence was required to determine the strength of the wireless signal emanating from the devices in his apartment . . . . We conclude that no subjective expectation of privacy exists under these circumstances, where information is openly available to third parties.” Id. at *4.

Of Note: What about Kyllo? Recall that in that case SCOTUS rejected the cops’ use of thermal-imaging technology to hunt for heat consistent with weed-grow lights. Id. at *5. Isn’t that analogous to the sniffing of Norris’s internet signal here? 

  Not according to the Ninth. 

  “We agree with the district court that Kyllo does not dictate the conclusion that a Fourth Amendment search occurred in this case.” Id. “Unlike in Kyllo, where the defendant confined his illegal activities to the interior of his home and relied on the privacy protections of the home to shield these activities from public observation, Norris’s activities reached beyond the confines of his home, thereby negating any expectation of privacy.” Id.

   Judge Rawlinson is equally unpersuaded that Norris had a reasonable expectation of privacy in the signal: “it strains credulity to suggest that society would be prepared to recognize an expectation of privacy as reasonable when an individual gains access to the internet through the unauthorized use of a third-party’s password-protected router located outside his residence.” Id. at *6.

How to Use: What if, like the Big Bang Theory’s “Penny,” Norris was an authorized internet moocher? The Norris opinion doesn’t get that far, id. at *5, so there may be a sliver of “reasonable expectation” remaining in that fact pattern.

                                               

For Further Reading: Norris is another round Fourth Amendment peg in a square technology hole. A better approach is “digital curtilage.” 

  For an interesting piece discussing that idea, see Professor Andrew Ferguson, The Internet of Things and the Fourth Amendment of Effects, available here.

Image of Penny from “Big Bang Theory” from https://www.pinterest.com/pin/464996730251364996/

Steven Kalar, Federal Public Defender N.D. Cal. Website available at www.ndcalfpd.org

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Case o' The Week: Lundin - "I hear you knocking . . . "

“. . . .but you can’t come in.”

  United States v. Lundin, 2016 WL 1104851 (9th Cir. Mar. 22, 2016), decision available here.

Players: Decision by Judge W. Fletcher, joined by Judges Berzon and Bea, upholding suppression decision by ND Cal D.J. Tigar. Big win for N.D. Cal Chief Ass’t Geoff Hansen and Research and Writing Attorney Steve Koeninger.

Facts: Cops learned of a request for the arrest of Eric Lundin. Id. at *2. At 4:00 a.m. they went to Lundin’s home, stood on his porch, and knocked loudly on his door. Id. They heard crashing behind the house, ran around, and discovered Lundin in the backyard. Id. 

 A search in the backyard and patio revealed a pair of handguns that matched the description of guns used in an earlier alleged kidnapping. Id. Lundin was charged with being a felon in possession, and moved to suppress the guns. Id. at *3. 

  District Judge Tigar granted the motion; the government took an interlocutory appeal.

Issue(s): “[T]o show that exigent circumstances [relating to the crashing sounds in the backyard] justified the warrantless search, the government must show that the officers lawfully stood on Lundin’s front porch and knocked on his door.” Id. at *4. “The government contends that the officers were permitted to knock on Lundin’s door under the so-called ‘knock and talk’ exception to the warrant requirement, which permits law enforcement officers to encroach upon the curtilage of a home for the purpose of asking questions of the occupants.” Id. at *5 (citation and quotations omitted).

Held: “For two reasons, we agree with the district court that the officers exceeded the scope of the customary license to approach a home and knock . . . .First, unexpected visitors are customarily expected to knock on the front door of a home only during normal waking hours.” Id. at *5.

  “Second, the scope of the license is often limited to a specific purpose.” Id. “The ‘knock and talk’ exception to the warrant requirement does not apply when officers encroach upon the curtilage of a home with the intent to arrest the occupant.” Id. at *6.

  “Thus, the officers violated Lundin’s Fourth Amendment right to be free from unlawful searches when they stood on his porch and knocked on his front door.” Id.

Of Note: Huge, huge win. But really nothing new or novel, in this welcome opinion. Instead, Lundin is the first Ninth case to really engage with Justice Scalia’s 2013 decision in Jardines. 

  District Judge Tigar (and, on appeal, Judge Fletcher) considered the subjective intent of the officers when they stomped onto Lundin’s porch at 4:00 in the morning. Id. at *6. Judges getting into the officers’ heads may raise eyebrows -- we’ve all been so browbeat by Whren’s horrible admonition, “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” 

  But Judges Tigar and Fletcher aren’t plowing new Fourth fields -- it was Justice Scalia in Jardines who explained that the implied license for a “knock and talk” depended on the purpose the officers had for entering the curtilage. Id. at *6. “Knock and talk” isn’t the only Fourth exception that looks to the “actual motivations” of the officers – “special needs” and “administrative inspections” also look at the intent of the police. Id. at *6. (And, as discussed below, maybe other “implied license” cases trigger a subject inquiry?)  

How to Use: Is it per se unreasonable for officers to intrude upon curtilage at 4:00 a.m. for a “knock and talk” exception? Judge Fletcher explains it not. 

  Maybe your client “sells fresh croissants out of his home,” and “generally expects strangers on his porch early in the morning.” Id. at *5. Maybe the officers are warning your client that “a fox has gotten into the resident’s henhouse.” Id. (a lovely, subtle metaphor in this Fourth Amendment case). 

  These examples seem crazy? That’s crazy deliberate. The Ninth is signaling that it will be the rare case indeed where cops have a credible subjective intent for a “knock and talk” in the middle of the night.

                                               

For Further Reading: Cops’ subjective intent can matter for “implied license” searches. Does that new(ish) Jardines’ reality bear on implied license searches in, for example, email and Facebook? For post mulling that interesting question, see Some Thoughts on Jardines and Police Intent, available here.

Image of Lego Cop with Croissant from https://41.media.tumblr.com/364fb49eec15ae92e3937f8a9e48ac37/tumblr_n3l38ln7bf1rnpm7mo1_500.jpg

Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcapfpd.org

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Case o' The Week: SOS on GPS -- Pineda-Moreno and GPS tracking

Two years ago, almost to the day, Chief Judge Kozinski dissented from the denial of rehearing en banc on the first Pineda-Moreno decision (a seminal Fourth Amendment decision tolerating warrantless GPS tracking). He complained:

The Supreme Court in Knotts expressly left open whether twenty-four hour surveillance of any citizen of this country by means of dragnet-type law enforcement violates the Fourth Amendment’s guarantee of personal privacy. When requests for cell phone location information have become so numerous that the telephone company must develop a self-service website so that law enforcement agents can retrieve user data from the comfort of their desks, we can safely saw that such dragnet-type law enforcement practices are already in use. This is precisely the wrong time for a court covering one-fifth of the country’s population to say that the Fourth Amendment has no role to play in mediating the voracious appetites of law enforcement.

United States v. Pineda-Moreno, 617 F.3d 1120, 1126 (ord.) (Kozinski, C.J., dissenting from denial of reh'g en banc) (quotations and internal citation omitted); see also blog describing dissent here).

   Two years, a Supreme Court decision, and another Ninth Circuit opinion on the case have come and gone  --- and the Chief still does not have a square answer to his righteous Fourth Amendment beef. United States v. Pineda-Moreno, 2012 WL 3156217 (9th Cir. Aug. 6, 2012), decision available here.

Players: Decision by Judge O’Scannlain, joined by Judges N.R. Smith and DJ Wolle. 

Facts: The DEA suspected Pineda-Moreno of running a marijuana grow. Id. at *1. With no warrant, they snuck onto his driveway and installed a tracking device on his Jeep. Id. Agents also stuck tracking devices to the Jeep while it was parked on public streets. Id. The tracking data (and info from earlier surveillance) lead to arrests, searches, and a federal prosecution. Id. Pineda-Moreno challenged the search, the original panel upheld it, a closely-divided en banc vote failed, cert. was filed. 

The Supremes then decided United States v. Jones, 132 S.Ct 945 (2012). “Jones holds that the government’s installation of a Global Positioning System (GPS) tracking device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’ under the Fourth Amendment.” Id. at *2 (citing Jones, 132 S. Ct. at 949). The Supreme Court remanded Pineda-Moreno in light of Jones.

Issue(s): “In this matter which arose prior to the Supreme Court’s decision in . . . Jones . . ., we must decide whether to apply the exclusionary rule where law enforcement agents attached mobile tracking devices to the underside of a defendant’s car and used those devices to track the car’s movements.” Id. at *1.

Held: “[T]he agents’ conduct in attaching the tracking devices in public areas and monitoring them was authorized by then-binding circuit precedent. Those attachments yielded the critical information that justified stopping Pineda-Moreno. Whatever the effect of Jones, then, the critical evidence here is not subject to the exclusionary rule.” Id. at *3 (citation and footnote omitted).

Of Note: Nice, one supposes, to have the Court acknowledge the new Supreme Court law on curtilage intrusions, and conceding that cell tracking is a “search.” Id. at *3. The battle has shifted, however, to another front: the Leon / Herring / “Good Faith” pass for unlawful searches (a trend manifested most lately in Davis v. United States, 131S. Ct. 2419 (2011)). 

Relying on Davis, Judge O’Scannlain concludes that these lousy searches survive suppression because – even if unconstitutional – they were authorized by Ninth precedent when undertaken. Id. at *3. “Davis held that ‘searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.’” Id. at *2 (citation omitted). Flag Davis – its frustrating tolerance of unconstitutional searches will be the subject of many brouhahas this year.

How to Use: Whole swaths of Ninth law were (we think) mowed down by Jones: a possibility conceded by Judge O’Scannlain in Pineda-Moreno. Id. at *4 (discussing McIver, Hufford, Miroyan, Maisano and Magana). To echo C.J. Kozinski’s “1984”theme from the original litigation of this case, ‘tis now a Brave New World. If your case involves warrantless cell tracking, or trespassing onto a driveway, don’t be dissuaded by old Ninth law – Jones will have most or all of those cases in the dustbin by next summer. 

                                               

For Further Reading: If this all seems vaguely familiar, think back to the Ninth post-Gant. A very similar question of retroactivity and Herring came up after that Supreme Court Fourth Amendment decision. The Ninth decided it precisely the right way, that time. See United States v. Gonzalez, 598 F.3d 1095 (9th Cir. 2010) (ord. denying reh’g en banc); see also blog entry here.  

  The only glitch? Gonzalez preceded the Supreme Court’s decision in Davis by a year. 

 Image of GPS tracking from http://www.advantrack.com/gps-tracking-atti-software/software.aspx

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Knocks Knock & Talk - Perea-Reyes, Curtilage, and Fourth Amendment

The Supreme Court has delivered good new authority that strengthens the Fourth Amendment, that fatally undermines previous Ninth Circuit law, and that produces great results for the defense.

Hey - it can happen. United States v. United States v. Perea-Rey, 2012 WL 1948973 (9th Cir. May 31, 2012), decision available here.

 

 Players: Big win for San Diego Ass't Fed Def. Gregory Murphy. Decision by Judge Wardlaw, joined by Judges Goodwin and visiting Judge William Sessions.   

Facts: Border patrol agents followed a man who illegally crossed into the US. Id. at *1. They watched the man go to Perea-Rey's home, enter through the gated fence entrance, and knocked on the front door. Id. An agent then followed the man as he went into an adjacent carport and met Perea-Rey: both were detained. Id. Perea-Rey refused to allow the agents in the house; agents with guns pulled nonetheless ordered everyone out of the home. Id.  Seven undocumented aliens were ultimately found.  Id. Perea-Rey was charged with harboring undocumented aliens. Id. The district court found the carport was curtilage, but upheld (most of) the search because "there was no reasonable expectation of privacy because it could be observed from the sidewalk." Id.

Issue(s): "The district court found that the carport, which the border agents occupied, was part of the curtilage of Perea-Rey's home, and we agree." Id. "The district court . . . reasoned that because the agents were able to freely enter the carport, Perea-Rey had no reasonable expectation of privacy in the carport." Id. at *4.

Held: "The Supreme Court has explained that the role of reasonable expectation analysis in evaluating the constitutionality of searches of the curtilage is only in determining the scope of the curtilage, and the not the propriety of the intrusion." Id. "[B]ecause [the carport] was curtilage, it was constitutionally protected area, and the warrantless entry, search and seizure by the agents violated Perea-Rey's Fourth Amendment rights." Id.

Of Note: Judge Wardlaw helpfully clarifies the "confusion that has existed for decades about the "reasonable expectation of privacy" and a search of its home and curtilage. Id. at *3. As the Supremes just explained in Jones, the Katz reasonable-expectation-of-privacy test "has been added to, not substituted for, the common-law trespassory test." Id. at *4. In other words, you retain a reasonable expectation of privacy in your home and curtilage, even if they can be seen from a public area. Stuff seen may be fair game for a warrant, id., but absent another exception cannot justify warrantless entry.  

How to Use: Perea-Rea's is a wonderful Fourth Amendment case -- in addition to the curtilage and Jones' analyses, it has a great limitation of the "knock and talk" doctrine. "Knock and talk" is that exception to the warrant requirement that allows cops to intrude on the curtilage to talk to occupants (and that tolerates searches done along the way). The theory of the "knock and talk" was Ninth law that focused on the subjective intent of the agents -- but that, explains Judge Wardlaw, has been made taboo by the Supreme Court. Id. at *5 (citing Kentucky v. King, 131 S. Ct. 1849 (2011)). King "implicitly overrules"   the reasoning of Ninth Circuit "knock and talk" law, observes Judge Wardlaw, and won't save the search here. Id. at *6. Perea-Reyes is a very important case on "knock and talk" -- will be our starting point when fighting warrantless home and curtilage searches relying on this theory.

                                               

For Further Reading: Investigators love Perea-Rea. In an intriguing little footnote, the Court takes judicial notice of Google maps and satellite images for determining the general location of the home. Id. at n.1 (citing a case that took judicial notice of online distances calculations). Ever seen those to-the-inch measurements that Google Earth can crank out? Maybe our investigators can finally hang up their rolling measuring wheels (much to their delight).  For a helpful guide on Google measurements, see Google Earth Blog here.

 Image of policemen at door from http://crimlaw.blogspot.com/2012/03/can-officer-enter-residence-to-arrest.html




Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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