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United States v. Norris

United States Court of Appeals, Ninth Circuit

November 4, 2019

United States of America, Plaintiff-Appellee,
v.
Alexander Nathan Norris, Defendant-Appellant.

          Argued and Submitted February 14, 2019 San Francisco, California

          Appeal from the United States District Court No. 2:11-cr-00188-KJM-1 for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

          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.

          Before: Mary M. Schroeder, Diarmuid F. O'Scannlain, and Johnnie B. Rawlinson, Circuit Judges.

         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 and/or supplemented affidavit would not have affected the probable cause determination.

          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. 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 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 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 ...


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