UNITED STATES DISTRICT COURT DISTRICT OF OREGON. The United States of America, by Kent S. Robinson, Acting United States Attorney for

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1 KENT S. ROBINSON, OSB # Acting United States Attorney District of Oregon GREGORY R. NYHUS, OSB # Assistant United States Attorney 1000 S.W. Third Ave., Suite 600 Portland, OR Telephone: (503) greg.r.nyhus@usdoj.gov Attorneys for United States of America UNITED STATES DISTRICT COURT DISTRICT OF OREGON UNITED STATES OF AMERICA 08-CR-468-KI v. JOHN HENRY AHRNDT, Defendant GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS The United States of America, by Kent S. Robinson, Acting United States Attorney for the District of Oregon, through Gregory R. Nyhus, Assistant United States Attorney (AUSA) for the District of Oregon, provides this memorandum in response to defendant's Motion to Suppress. Defendant argues that the search warrants were based on evidence obtained in violation of the Fourth Amendment and that the evidence seized pursuant to the warrants must be suppressed. Specifically, defendant proposes that material viewed by a private party while inadvertently accessing an unsecured wireless Internet connection constituted an illegal search

2 and could not, therefore, be used to the substantiate probable cause developed by law enforcement. Further, defendant contends, as a result of the private party s conduct and the private party s reports to law enforcement, the evidence constituting the statements regarding officer s observations should likewise be suppressed. Although defendant does not challenge or seek to controvert the veracity of any of the statements in the affidavit, defendant submitted police reports, transcribed phone calls and reports of interviews as attachments to his motion. Copies of both search warrants obtained by federal law enforcement were also included by defendant. Couched in the terms outlined by the defendant, however, the challenge to the sufficiency of probable cause in the affidavit supporting the application for the warrant which was issued should be determined with reference only to the material contained in that affidavit. I. FACTUAL BACKGROUND On February 21, 2007, a resident of Aloha, Oregon, (referred to as JH in the affidavit and hereinafter) was at her residence using her laptop computer through a wireless network and accessed her Apple itunes library. When she did so, she saw another library that belonged to an unidentified person. JH noted that the shared library was titled, Dad s Limewire Tunes. JH accessed the shared itunes library on the shared network called, Dad s Limewire Tunes and looked at the filenames of the files contained within the shared library. JH noted that approximately 25 to 30 of the files had file names indicating that the file may contain child pornography. JH did not open any of the files. JH contacted the Washington County Sheriff s Office. On February 21, 2007 at approximately 11:30 p.m., Washington County Sheriff s Deputy PAGE 2 - GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS

3 McCullough responded to JH s residence concerning the report. Deputy McCullough, duplicating what JH had already done, viewed the library list of Dad s Limewire Tunes and observed approximately 25 picture and video files which had pornographic titles that indicated the files were of underage children. Deputy McCullough after discussing the issue with a colleague, asked JH to open a file from Dad s Limewire Tunes, which she did. While the file was open, both reported seeing what they believed to be actual minors, or individuals clearly under the age of 18, engaged in sexually explicit conduct. On February 23, 2007, Washington County Sheriff s Office Detective Ray Marcom and the Agent Jim Cole, the affiant, went to JH s residence and interviewed her concerning the incident. JH restated what she had first told investigators, and JH noted one of the files was titled 11 yr-old masturbating. Although JH could not specifically recall any other file names, based on the filenames she observed, noting specifically the words: Tiny, fuck, sick and cunt in the file names, she believed the files contained child pornography. JH told law enforcement that she lives in a new neighborhood and has had problems with her Comcast Internet connectivity. JH s computer is set to automatically seek another wireless network to connect to whenever her own wireless network loses connectivity. She stated that on several occasions she noted that her Internet connection was slower than normal and when she would check to see if she was still connected to her own network she would find that she was connected to a network named BELKIN54G. JH noted that the additional signal she receives has been present since she moved in, and since she was one of the first to move into the neighborhood, she believes, based on her PAGE 3 - GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS

4 experience, that the signal is emanating from the house. The address of the house that she identified was noted and was located approximately 150 feet from JH s residence. JH further stated that she had only ever noticed one network within range of her residence called BELKIN54G. JH stated that she had noted other wireless networks available within range of her residence as well; however, those networks were security enabled. On February 26, 2007, Agent Cole spoke with Deputy McCullough who stated that when he responded to JH s residence and viewed the itunes playlist for Dad s Limewire Tunes that he observed approximately 25 filenames which purported by their names to be files related to the sexual abuse of children. Deputy McCullough did not remember specific filenames, however, he was able to recall that the filenames contained what appeared to be children s ages. He also stated that the filenames described sexual activity after the age such as being raped and getting raped. Deputy McCullough believed, based on the filenames, that the files depicted child pornography. On April 2, 2009, a search warrant was granted, authorizing law enforcement to obtain access to the network router broadcasting the suspect itunes library from JH s residence for the purpose of identifying the wireless access point s Internet Protocol (IP) address, which, in turn, would provide investigators with the ability to identify the account that was accessing the Internet. Following service of that warrant, a second warrant was obtained which authorized the search of the identified residence for computing equipment suspected of containing child pornography. Factually, the second affidavit incorporates and relies upon facts presented in the first affidavit, and adds only identifying information of the account accessing the Internet through the PAGE 4 - GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS

5 BELKIN54G router. II. DISCUSSION The Fourth Amendment provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." However, probable cause "is a fluid concept - turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232 (1983). Probable cause exists when, given all of the circumstances in the affidavit, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238. See also United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007), cert. denied, 128 S.Ct. 877 (2008) ("probable cause means a 'fair probability' that contraband or evidence is located in a particular place"); United States v. Adjani, 452 F.3d 1140, 1145 (9th Cir.) ("Probable cause exists if 'it would be reasonable to seek the evidence in the place indicated in the affidavit' ") (citation omitted), cert. denied sub nom., Reinhold v. United States, 127 S.Ct. 568 (2006). Whether there is a fair probability "depends upon the totality of the circumstances, including reasonable inferences, and is a common-sense, practical question." Kelley, 482 F.3d at 1050 (internal quotation marks and citation omitted). "Neither certainty nor a preponderance of the evidence is required." Id. See also United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (en banc) (probable cause means a fair probability, "not certainty or even a preponderance of the evidence"). A reviewing court may not "flyspeck the affidavit through de novo review," and must give "great deference" to the magistrate judge's decision. Gourde, 440 F.3d at Reviewing courts must avoid a "grudging or negative attitude" toward search warrants, and "should not PAGE 5 - GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS

6 invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner." Gates, 462 U.S. at 236 (bracketed material in original; internal quotation marks and citation omitted). In close cases, courts should find in favor of affirming the validity of the warrant. Gates, 462 U.S. at 237 n. 10 ("resolution of doubtful or marginal cases" should be "largely determined by the preference to be accorded to warrants"); Kelley, 482 F.3d at The affidavit need only set forth sufficient facts giving rise to a reasonable inference of criminal activity; neither concrete nor direct evidence is required. Gourde, 440 F.3d at Moreover, the fact that an investigation could have been more thorough or complete "does not matter" if "the totality of the circumstances that are set forth adds up to a 'fair probability'" that evidence will be found in the place to be searched. Kelley, 482 F.3d at 1054 (emphasis in original). See also Gourde, 440 F.3d at 1073 n.5 ( the benchmark is not what the FBI could have done. An affidavit may support probable cause even if the government fails to obtain potentially dispositive information"). The issuing magistrate is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense alleged. The magistrate may also rely on the conclusions of an experienced officer concerning traits or conduct exhibited by a certain category of offenders, where there are facts in the affidavit placing the defendant within that category. See Gourde, 440 F.3d at 1072 (details in the affidavit regarding how child pornography collectors use computers bolstered probable cause where the facts suggested that the defendant was a collector). As a general matter, individuals enjoy a reasonable expectation of privacy in their PAGE 6 - GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS

7 personal computers. United States v. Heckencamp, 482 F.3d 1142, 146 (9th Cir. 2007). This privacy interest, however, can be diminished by the individual s conduct online. As the court stated in United States v. Ganoe, 538 F.3d, 1117, 1127 (9th Cir. 2008):... [W]e fail to see how this expectation can survive Ganoe's decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program. The crux of Ganoe's argument is that he simply did not know that others would be able to access files stored on his own computer. But he knew he had file-sharing software on his computer; indeed, he admitted that he used it-he says to get music. Moreover, he was explicitly warned before completing the installation that the folder into which files are downloaded would be shared with other users in the peer-to-peer network. Ganoe thus opened up his download folder to the world, including Agent Rochford. To argue that Ganoe lacked the technical savvy or good sense to configure LimeWire to prevent access to his pornography files is like saying that he did not know enough to close his drapes. Having failed to demonstrate an expectation of privacy that society is prepared to accept as reasonable, Ganoe cannot invoke the protections of the Fourth Amendment. See United States v. Bautista, 362 F.3d 584, 589 (9th Cir.2004). An unsecured wireless Internet access point providing access to a library of files open to the world, or in this case, JH and subsequent law enforcement investigators, is no different, diminishing defendant s expectation of privacy. III. ANALYSIS The facts presented in the affidavit clearly present several stages of analysis. If at any particular stage of the investigation the court finds that an illegal search took place, the proper remedy is to excise that portion of the affidavit presenting the unlawful search and determine if the remainder of the affidavit states probable cause. A. JH s Inadvertent Access Not an Unlawful Search Defendant posits that JH s inadvertent and unintentional access of the unsecured PAGE 7 - GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS

8 BELKIN54" network violates the Wiretap Act in that it was an unlawful interception of a communication and therefore should not provide evidence to be used as probable cause. Defendant s application of the Wiretap Act, 18 U.S.C. 2510, et seq., is incorrect. Defendant fails to point out where the contemporaneous interception of communication of the type forbidden by the Act was affirmatively intercepted. Moreover, the datastream between the access point and JH s computer was not a wire communication but an electronic communication. Compare 18 U.S.C. 2510(1), (2) and (12). See also 18 U.S.C. 2701, et seq. The interpretation urged by defendant would render the definition of oral communications inconsistent with the statutory definitions of wire and electronic communications. Moreover, an oral communication must be one uttered by a person, and the interception or disclosure of an oral communication must be of the communication itself. United States v. Price, 260 F. 3d 1144, 1148 (9th Cir. 201). To the extent that defendant hints, but does not directly argue, that JH s conduct was an unlawful search, defendant is mistaken. The Fourth Amendment applies only to searches and seizures that are the product of government action. The Fourth Amendment is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official. United States v. Jacobsen, 466 U.S 109,113 (1984) (internal quotation marks omitted). As a result, no violation of th e Fourth Amendment occurs when a private individual acting on their own accord conducts a search and makes the results available to law enforcement. See id. Accordingly, JH s report to law enforcement about the content of the library she PAGE 8 - GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS

9 viewed was not criminal and can form the basis for probable cause in an affidavit for a search warrant. B. Deputy McCullough s Initial View of Defendant s Library Not A Search Initially, no search occurred because the manner in which defendant maintained his computer network did not evince an intent to maintain a privacy interest. Defendant s unsecured wireless access point was open to anyone with a wireless modem, whether or not they were law enforcement. Because defendant made no effort to keep or maintain his computer network private but maintained an access point open to all, no search occurred. Alternatively, according to Jacobsen, agents who learn of evidence via a private search can reenact the original private search without violating any reasonable expectation of privacy. The materials viewed by JH and subsequently by Deputy McCullough did not constitute an unreasonable search. What both saw and reported as what both believed to be files containing child pornography constitutes validly obtained evidence. A reasonable inference can then be drawn that the modem connected to the Internet belongs to an account holder whose computer has child pornography located on it. C. Deputy McCullough s Second View of Defendant s Library Not A Search Again, because the defendant did not maintain his computer network in a secure fashion, defendant took the risk that anyone with a wireless modem could access his network and view the material. That law enforcement viewed the content of the files in this setting is immaterial. In addition, the material was in plain view. To satisfy the plain view doctrine: (1) the officer must be lawfully in the place where the seized item was in plain view; (2) the item's incriminating nature was immediately apparent; and (3) the officer had a lawful right of PAGE 9 - GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS

10 access to the object itself. Horton v. California, 496 U.S. 128, , 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (citations omitted); United States v. Wong, 334 F. 3d 831 (9th Cir. 2003) (child pornography discovered on defendant's computer during execution of warrant for evidence of murder was in plain view). The material can therefore lawfully be contained in an application for a search warrant. Even if the defendant did have a reasonable expectation of privacy in the files shown in his itunes library, Deputy McCullough had probable cause to review the contents of one of the files as the material was in plain view, announced its contents and law enforcement (imputed through his request to JH ) was in a such a place to view the material lawfully. Alternatively, the facts show that private action (asking JH to open and view the contents of a file) can count as government action since law enforcement knew of and acquiesced in the intrusive conduct and JH certainly intended to assist law enforcement. United States v. Miller, 688 F.2d 652, 657 (9th Cir. 1982). This does not, however, end the analysis since this material, together with the statements that Deputy McCullough made regarding the content of the file can be excised from the affidavit. After doing so, there exists ample evidence from which a reviewing magistrate can make a determination that the material that JH saw and reported to law enforcement, and corroborated by Deputy McCullough, were files that contained child pornography. The evidence contained in the affidavit was therefore validly obtained. D. Search Was Executed on Good Faith Finally, defendant argues that the affidavit and its defects were so lacking in probable cause that the officers serving the search warrant would not be entitled to rely upon its PAGE 10 - GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS

11 apparently erroneous issuance and evidence seized as a result must therefore be excluded. Given the foregoing, the court need not address this argument because of the sufficiency of the affidavit. Lack of probable cause is not synonymous with lack of good faith. If it were, the exception would be a nullity. Although "good faith" is the shorthand term for the rule, the Supreme Court has eschew[ed] inquiries into the subjective beliefs of law enforcement officers. United States v. Clark, 31 F.3d 831, 835 (9th Cir. 1994) (quoting United States v. Leon, 468 U.S. 897, 922 n.23 (1984)), cert. denied, 513 U.S (1995). Rather, the inquiry is one of objective reasonableness, meaning the reviewing court "must decide whether a reasonably well-trained officer would have known that this particular search was illegal despite the magistrate judge s authorization." Id. There are four circumstances under which the good faith exception does not apply: (1) if the warrant is based on a "bare bones" affidavit "so lacking in evidence of probable cause as to render official belief in its existence entirely unreasonable"; (2) if the warrant is based upon deliberate or reckless material misrepresentations by the affiant; (3) if the issuing magistrate has wholly abandoned the required neutral and detached judicial role; or (4) if the warrant s particularization of the place to be searched or the items to be seized is "so facially deficient... that the executing officers cannot reasonably presume it to be valid." Leon, 468 U.S. at 923; United States v. Michaelian, 803 F.2d 1042, 1046 (9th Cir. 1986). None of the circumstances disqualifying the good faith exception exist in the instant case. Even if this court were to find deficiencies in the affidavit sufficient to seriously call into question the validity of the underlying facts or the subsequent issuance of a warrant, the executing officers would still be allowed to rely upon their good faith under the long-established PAGE 11 - GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS

12 rule enunciated in Leon. III. CONCLUSION For the foregoing reasons, defendant s Motion to Suppress should be denied. Dated this 7 th day of December Respectfully submitted, KENT S. ROBINSON Acting United States Attorney District of Oregon s/ Gregory R. Nyhus GREGORY R. NYHUS, OSB# Assistant United States Attorney PAGE 12 - GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS