United States v. Alexander Norris

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10354
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00188-KJM-1
ALEXANDER NATHAN NORRIS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted February 14, 2019
San Francisco, California
Filed November 4, 2019
Before: Mary M. Schroeder, Diarmuid F. O’Scannlain,
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson
2 UNITED STATES V. NORRIS
SUMMARY*
Criminal Law
The panel affirmed a conviction for distribution and
possession of material involving the sexual exploitation of
minors, in a case in which an FBI agent used wireless-
tracking software to detect the signal strength of the address
of the defendant’s wireless device.
The panel held that because there was no physical
intrusion into the defendant’s residence to detect the signal
strength of his device’s media-access-control (MAC) address,
the district court correctly applied the factors set forth in Katz
v. United States, 389 U.S. 347 (1967), and determined that no
search occurred under the Fourth Amendment. The panel
wrote that the defendant lacked a subjective expectation of
privacy in the signal strength of his MAC address emanating
from his unauthorized use of a third-party’s password-
protected wireless router. The panel concluded that society
is not, in any event, prepared to recognize as reasonable an
expectation of privacy predicated on unauthorized use of a
third-party’s internet access.
The panel held that the district court did not err in
denying the defendant’s request for a Franks hearing, where
the defendant failed to make a substantial preliminary
showing that the search warrant affidavit included any
knowingly, intentionally, or recklessly made material
misrepresentations or omissions; and where a corrected
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. NORRIS 3
and/or supplemented affidavit would not have affected the
probable cause determination.
COUNSEL
John Paul Balazs (argued), Sacramento, California, for
Defendant-Appellant.
Matthew G. Morris (argued) and Shelley D. Weger, Assistant
United States Attorneys; Camil A. Skipper, Appellate Chief;
McGregor W. Scott, United States Attorney; United States
Attorney’s Office, Sacramento, California; for Plaintiff-
Appellee.
OPINION
RAWLINSON, Circuit Judge:
To resolve this case, we must once again venture into the
intersection of technology and the Fourth Amendment.
Defendant-Appellant Alexander Nathan Norris (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. Under the facts of this case, we
conclude that no Fourth Amendment search occurred in the
course of identifying Norris’s wireless device, and we affirm
his conviction.
I. BACKGROUND
This case originated in December, 2010, when Federal
Bureau of Investigation (FBI) Special Agent Nicholas G.
4 UNITED STATES V. NORRIS
Phirippidis (Special Agent Phirippidis) initiated an
investigation into the possession and distribution of child
pornography through a peer-to-peer file-sharing network (P2P
network).1 Special Agent Phirippidis downloaded child
pornography from username “boyforboys1,” using an Internet
Protocol address (IP address)2 of 67.172.180.130 registered
to Comcast Communications (Comcast). Comcast could not
determine the physical address for “boyforboys1.”
In March, 2011, “boyforboys1” logged into the same P2P
network, using a different IP address of 64.160.118.55
registered to AT&T Internet Services (AT&T), and Special
Agent Phirippidis again downloaded child pornography from
“boyforboys1.” In response to a subpoena, AT&T identified
the subscriber associated with the IP address as residing in
Apartment 242. After conducting a public records search and
confirming with the apartment manager that the subscriber
still resided at Apartment 242, Special Agent Phirippidis
obtained a search warrant for Apartment 242.
Upon execution of the search warrant, Special Agent
Phirippidis discovered that the password-protected wireless
internet router (router) located in Apartment 242 used an IP
address of 69.105.80.128 rather than the 64.160.118.55 IP
1
P2P file-sharing software “allows network computer users,
connected to the Internet, to share many types of files; these files typically
include music, graphics, images, movies, and text. In this way, [P2P
network] users are able to collect large numbers of files, including child
pornography.”
2
An IP address “refers to a unique number used by a computer to
access the Internet.” IP addresses can be dynamic (the number changes
each time the computer accesses the Internet) or static (the number
remains the same each time the computer accesses the Internet).
UNITED STATES V. NORRIS 5
address connected to “boyforboys1.” The search revealed
that no devices in Apartment 242 contained any evidence of
child pornography or of the P2P file-sharing program used by
“boyforboys1.”
FBI agents identified all the devices that had recently
connected to the router located in Apartment 242 and
pinpointed two unknown devices, “bootycop” (media access
control [MAC] address unknown) and “CK” (with a MAC
address of 00.25:d3:d4:c4:73).3 Because the apartment
residents could not identify either unknown device, Special
Agent Phirippidis concluded that “CK” and “bootycop”
accessed the router in Apartment 242 without permission.
Neither computer was connected to the router when Special
Agent Phirippidis executed the search warrant, but agents
attempted to identify the location of the “CK” device using
Moocherhunter software (Moocherhunter)4 and the
00.25:d3:d4:c4:73 MAC address.
With Moocherhunter in passive mode and using a
wireless antenna, Special Agent Phirippidis and his
colleagues captured signal strength readings to locate the
00.25:d3:d4:c4:73 MAC address. Specifically,
Moocherhunter was installed on a laptop computer and
connected to a directional antenna. The Moocherhunter
3
A MAC address is “a unique identifier assigned to a network device
for communication on a physical network. A MAC address is most often
assigned by the manufacturer of a network device,” and differs from an IP
address.
4
As its name implies, Moocherhunter is an open-source wireless
tracking software program designed to identify computers trespassing on
wireless computer networks. Moocherhunter enables the detection of
wireless traffic without directly accessing any device.
6 UNITED STATES V. NORRIS
program was provided the 00.25:d3:d4:c4:73 MAC address,
and approximately seventeen location readings were taken in
the vicinity of Apartment 242. The readings were
significantly higher when the antennae was aimed in the
direction of Apartment 243. As a result, the agents concluded
that Apartment 243 housed the “CK” device. After
identifying the target apartment, Special Agent Phirippidis
waited for “boyforboys1” to log on to the P2P network.
A week later, “boyforboys1” logged onto the P2P network
and distributed child pornography from the 69.105.80.128 IP
address linked to the wireless router in Apartment 242.
Special Agent Phirippidis downloaded child pornography
files from “boyforboys1,” and went to Apartment 242 to
confirm whether “boyforboys1” utilized “CK” or “bootycop”
devices to distribute the child pornography. With the consent
of a resident of Apartment 242, Special Agent Phirippidis
and his colleagues determined that “CK” (with the
00.25:d3:d4:c4:73 MAC address) and “bootycop” (with a
MAC address of 00:1f:1f:49:d3:11) were logged into the
wireless router belonging to the residents of Apartment 242.
After a period of time, “CK” disconnected from the
router, leaving only “bootycop” connected to the router.
Again using the Moocherhunter software and a wireless
antenna, Special Agent Phirippidis measured the signal
strength of MAC address 00:1f:1f:49:d3:11, taking readings
from Apartment 242 and from a nearby vacant apartment
(with permission from the apartment manager). He
concluded that: (1) “CK” and “bootycop” exhibited similar
signal strengths; (2) “CK” and “bootycop” were associated
with each other; (3) Apartment 243 housed both devices;
and (4) both had gained unauthorized access to the
password-protected router in Apartment 242.
UNITED STATES V. NORRIS 7
Based on the Moocherhunter data, Special Agent
Phirippidis obtained a search warrant for Apartment 243.
When Special Agent Phirippidis and his colleagues executed
the search warrant, they discovered evidence of child
pornography.
II. PROCEDURAL HISTORY
The government indicted Norris on one count of
distribution of material involving the sexual exploitation of
minors, in violation of 18 U.S.C. § 2252(a)(2), and one count
of possession of material involving the sexual exploitation of
minors, in violation of 18 U.S.C. § 2252(a)(4)(B). Norris
subsequently moved to suppress the evidence obtained as a
result of the search warrant, alleging that use of the
Moocherhunter software amounted to a warrantless search in
violation of the Fourth Amendment. Norris also moved for
a Franks5 hearing on the basis that the search warrant
affidavit contained misrepresentations and omissions that
materially misled the magistrate judge and negated any
probable cause determination. The district court denied both
motions.
Addressing the motion to suppress, the district court held
that no Fourth Amendment search occurred, because, unlike
in Florida v. Jardines, 569 U.S. 1 (2013), the agents did not
encroach upon Norris’s curtilage to determine the location of
contraband inside the house. See id., 569 U.S. at 3, 11–12
(holding that a Fourth Amendment search occurred when
police brought a drug-sniffing dog to defendant’s porch to
determine the presence of drugs inside the residence). In
Jardines, the Supreme Court clarified that the focus in a
5
Franks v. Delaware, 438 U.S. 154 (1978).
8 UNITED STATES V. NORRIS
Fourth Amendment inquiry should be on “the traditional
property-based understanding of the Fourth Amendment.” Id.
at 11. Thus, if “the government gains evidence by physically
intruding on constitutionally protected areas,” such as the
curtilage of a home, a search has occurred, and no further
inquiry is required, including whether the defendant had a
reasonable expectation of privacy. Id.
Having found that the agents did not physically intrude
upon Norris’s property as in Jardines, the district court
proceeded to analyze whether Norris could nevertheless
establish that a search occurred under the analysis set forth by
the Supreme Court in Katz v. United States, 389 U.S. 347(1967). The Katz test has been described as encapsulating
two questions. The first question “is whether the individual,
by his conduct, has exhibited an actual (subjective)
expectation of privacy.” Smith v. Maryland, 442 U.S. 735,
740 (1979) (citation and internal quotation marks omitted).
The second question measures the objective reasonableness
of an individual expectation of privacy by inquiring “whether
the individual’s subjective expectation of privacy is one that
society is prepared to recognize as reasonable.” Id. (citation
and internal quotation marks omitted). The district court
answered both questions in the negative as applied to Norris.
The district 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. The district court distinguished Kyllo
v. United States, 533 U.S. 27 (2001), involving the use of
thermal-imaging devices to scan the residence to determine
the existence of fluorescent lights used in growing marijuana.
UNITED STATES V. NORRIS 9
The district court also ruled that society was not prepared
to recognize an expectation of privacy for an individual who
gains unauthorized access to a third-party’s
password-protected router.
Finally, the district court ruled that Norris failed to meet
the standard for a Franks hearing. Although the alleged
misrepresentations and omissions would likely provide a
more complete picture of the reliability of the software, the
district court concluded that the alleged misrepresentations
and omissions did not invalidate the probable cause finding.
Following trial, the jury convicted Norris on both counts.
The district court sentenced Norris to 72 months’
imprisonment and 180 months’ supervised release. The
district court entered final judgment, and Norris timely
appealed.
III. JURISDICTION AND STANDARD OF REVIEW
The district court had subject matter jurisdiction under
18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C.
§ 1291. We review denial of a motion to suppress de novo,
and the district court’s factual findings for clear error. See
United States v. Zapien, 861 F.3d 971, 974 (9th Cir. 2017).
We also review de novo the denial of a Franks hearing. See
United States v. Kleinman, 880 F.3d 1020, 1038 (9th Cir.
2018), as amended.
10 UNITED STATES V. NORRIS
IV. DISCUSSION
A. Fourth Amendment Search
It is undisputed that there was no actual physical intrusion
into Norris’s apartment. Therefore, we apply the Katz test to
determine if the agents engaged in a search under the Fourth
Amendment. See Jardines, 569 U.S. at 11.
1. Subjective Expectation of Privacy
To connect to the internet, Norris’s devices sent a wireless
signal transmitting the MAC address of the devices to the
password-protected wireless router in Apartment 242. Once
connected, Norris accessed the router to utilize the internet
connection without authorization.
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. Jardines, 569 U.S. at 11.
We conclude that no subjective expectation of privacy
exists under these circumstances, where information is openly
UNITED STATES V. NORRIS 11
available to third parties. “What a person knowingly exposes
to the public, even in his own home or office, is not a subject
of Fourth Amendment protection.” Katz, 389 U.S. at 351(citations omitted); see also California v. Ciraolo, 476 U.S.
207, 213–14 (1986) (holding that use of an aircraft in public
airspace to view marijuana plants in the backyard of a home
did not violate the Fourth Amendment); California v.
Greenwood, 486 U.S. 35, 40–41 (1988) (concluding that
search of publicly exposed garbage did not violate the Fourth
Amendment); United States v. Borowy, 595 F.3d 1045,
1047–48 (9th Cir. 2010) (upholding search of computer files
using file-sharing software available to the public).
We agree with the district court that Kyllo does not dictate
the conclusion that a Fourth Amendment search occurred in
this case. In Kyllo, police officers utilized thermal-imaging
technology to scan the inside of a house to detect the presence
of heat in amounts consistent with the presence of
high-intensity lights used to grow marijuana. See 533 U.S.
at 29–30. The Supreme Court ruled the scan a search under
the Fourth Amendment because the government used
“sense-enhancing” technology to obtain information from the
inside of a home that the police could not otherwise obtain
“without physical intrusion into a constitutionally protected
area.” Id. at 34. 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. See Katz, 389 U.S. at 351.
United States v. Karo, 468 U.S. 705 (1984), is equally
distinguishable. In Karo, the United States Supreme Court
held that the government’s monitoring of a beeper inside a
12 UNITED STATES V. NORRIS
private residence violated the Fourth Amendment because the
beeper provided location information that could not have
been obtained from outside the curtilage of the house. See id.
at 708, 714; see also Silverman v. United States, 365 U.S.
505, 506, 509–12 (1961) (holding that a Fourth Amendment
search occurred when police inserted a “spike mike” into a
house to overhear conversations of the house next door);
Jardines, 569 U.S. at 4 (concluding that a Fourth Amendment
search occurred when police used a drug-sniffing dog along
the front porch (the curtilage) to establish the location of
marijuana inside a house). Unlike in Karo, Silverman, and
Jardines, the agents in this case collected information from
non-constitutionally protected areas, and they collected no
information from inside Norris’s residence. Thus, Norris
lacked any expectation of privacy in the emission of the
signal strength of the MAC address emanating from outside
his apartment. See Borowy, 595 F.3d at 1047–48.
2. Societal Recognition of Expectation of Privacy as
Reasonable
Even if Norris harbored a subjective expectation of
privacy, that expectation was not one society is prepared to
recognize as reasonable. The concept of society’s recognition
of an expressed expectation of privacy is consistent with the
overall focus in Fourth Amendment jurisprudence on
reasonableness. See Brigham City, Utah v. Stuart, 547 U.S.
398, 403 (2006) (“[T]he ultimate touchstone of the Fourth
Amendment is reasonableness . . .”) (citations and internal
quotation marks omitted). If society is not prepared to
recognize an expectation of privacy as reasonable, intrusion
upon that expectation does not violate the Fourth
Amendment’s overall reasonableness requirement. See Kyllo,
533 U.S. at 33. As the Supreme Court articulated in Rakas v.
UNITED STATES V. NORRIS 13
Illinois, 439 U.S. 128, 143 n.12 (1978), “[o]ne of the main
rights attaching to property is the right to exclude others, and
one who owns or lawfully possesses or controls property will
in all likelihood have a legitimate expectation of privacy.”
(citation omitted). Conversely, one has no legitimate
expectation of privacy in property for which he lacks any
possessory or ownership interest. See United States v. Wong,
334 F.3d 831, 839 (9th Cir. 2003).
We have also generally concluded that society is not
prepared to recognize as reasonable a subjective expectation
of privacy in the content of property obtained through
unauthorized means. In United States v. Caymen, 404 F.3d
1196, 1197–98 (9th Cir. 2005), Caymen used a third-party’s
credit card to fraudulently purchase a laptop. The police
obtained a search warrant for Caymen’s residence and
discovered the laptop. See id. The police contacted the store
owner for approval to review the contents of the laptop. See
id. at 1198. Once the police discovered child pornography,
they immediately ceased their search and obtained another
warrant to search for child pornography. See id. Caymen
was indicted for possession of child pornography and moved
to suppress seized photographs on the basis that the police
conducted an illegal search. See id.On appeal, we rejected Caymen’s challenge of the search,
ruling that the Fourth 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.” Id.
at 1200 (internal quotation marks omitted).
14 UNITED STATES V. NORRIS
We also find instructive the Third Circuit’s decision in
United States v. Stanley, 753 F.3d 114 (3d Cir. 2014).
Stanley also involved use of the Moocherhunter software to
detect the signal strength of a MAC address from outside the
suspected residence. See id. at 116. As in our case, the
defendant accessed child pornography via a neighbor’s
wireless service. See id. at 115–16. The only difference is
that in Stanley, the neighbor’s wireless service was not
password-protected. See id. at 116. Under these similar
circumstances, the Third Circuit determined that “Stanley’s
expectation of privacy [in his MAC address signal] is not one
that society is prepared to recognize as legitimate.” Id. at 119(footnote reference omitted). The Third Circuit concluded
that “while Stanley may have justifiably expected the path of
his invisible radio waves to go undetected, society would not
consider this expectation legitimate given the unauthorized
nature of his transmission.” Id. at 120. Although we do not
adopt the entire reasoning espoused by the Third Circuit, we
agree that even if a person in Norris’s position had a
subjective expectation of privacy in the wireless signal
transmitted outside his residence, society is not prepared to
recognize this expectation as legitimate, given the
unauthorized access used to generate the wireless
transmission. See id. Indeed, 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. See
id.In sum, we affirm the district court’s application of the
Katz factors to conclude that no Fourth Amendment search
occurred. Even if Norris had a subjective expectation of
UNITED STATES V. NORRIS 15
privacy, it was not one society was prepared to accept as
reasonable.
B. Franks hearing
A Franks hearing determines “the validity of the affidavit
underlying a search warrant.” Kleinman, 880 F.3d at 1038
(citation omitted). To obtain a Franks hearing, a defendant
must make a substantial preliminary showing that: (1) “the
affiant officer intentionally or recklessly made false or
misleading statements or omissions in support of the
warrant,” and (2) “the false or misleading statement or
omission was material, i.e., necessary to finding probable
cause.” United States v. Perkins, 850 F.3d 1109, 1116 (9th
Cir. 2017) (citation, alteration, and internal quotation marks
omitted). Once the defendant makes that showing, to prevail
at the subsequent hearing, he must establish both prongs by
a preponderance of the evidence. See United States v.
Martinez-Garcia, 397 F.3d 1205, 1214–15 (9th Cir. 2005).
Norris failed to satisfy the first requirement because he
did not present any evidence that Special Agent Phirippidis
acted knowingly, intentionally, or with reckless disregard for
the truth in preparing the affidavit.
In any event, Norris also failed to satisfy the second
requirement for a Franks hearing because none of the alleged
false statements or omissions materially affected the probable
cause determination. “Probable cause to search a location
exists if, based on the totality of the circumstances,” a “fair
probability” exists that the police will find evidence of a
crime. Perkins, 850 F.3d at 1119 (citation omitted). The key
inquiry in resolving a Franks motion is whether probable
cause remains once any misrepresentations are corrected and
16 UNITED STATES V. NORRIS
any omissions are supplemented. See id. If probable cause
remains, the defendant has failed to establish a material
omission. See id.
Norris argues that the FBI falsely identified
Moocherhunter as open-source software rather than
proprietary software. Norris also alleges that the following
omissions were material: (1) the FBI used a free version of
Moocherhunter instead of the law enforcement version;
(2) the FBI did not authorize its agents to use Moocherhunter
in criminal investigations; (3) the FBI did not train its agents
to use Moocherhunter; (4) the FBI did not formally test the
software; (5) the FBI disregarded any reading believed to be
anomalous or not of value; (6) the FBI agents used an
incomplete method; (7) the FBI agents did not provide the
magistrate judge with location information in relation to the
signal strength; (8) the Moocherhunter developer did not
subject the software to any objective or peer-review testing;
and (9) Moocherhunter will give false readings when a party
changes the MAC address to conceal identity.
If the alleged misrepresentations and omissions were
corrected and supplemented, the probable cause
determination would not be affected, as a “fair probability”
remained that Apartment 243 housed devices containing child
pornography. Id. (citation omitted). The district court did not
err in denying the requested Franks hearing. See id.
V. CONCLUSION
Because there was no physical intrusion into Norris’s
residence to detect the signal strength of the MAC address of
his device, the district court correctly applied the Katz factors
and determined that no search occurred under the Fourth
UNITED STATES V. NORRIS 17
Amendment. Norris lacked a subjective expectation of
privacy in the signal strength of his MAC address emanating
from his unauthorized use of a third-party’s wireless router.
In any event, we conclude that society is not prepared to
recognize as reasonable an expectation of privacy predicated
on unauthorized use of a third-party’s internet access.
Finally, Norris failed to make a substantial preliminary
showing that the search warrant affidavit included any
knowingly, intentionally, or recklessly made material
misrepresentations or omissions. Moreover, a corrected
and/or supplemented affidavit would not have affected the
probable cause determination. The district court did not err
in denying Norris a Franks hearing.
AFFIRMED.