United States v. John Ahrndt , 475 F. App'x 656 ( 2012 )

FILED
NOT FOR PUBLICATION APR 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30281
Plaintiff - Appellee, D.C. No. 3:08-cr-00468-KI-1
v.
MEMORANDUM*
JOHN HENRY AHRNDT,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted March 7, 2012
Portland, Oregon
Before: W. FLETCHER, FISHER and BYBEE, Circuit Judges.
John Henry Ahrndt appeals the district court’s denial of his motion to
suppress evidence he claims resulted from a police officer’s unconstitutional
warrantless search made by connecting to Ahrndt’s personal wireless network and
opening one of his shared files. We reverse and remand for additional factfinding,
as we explain.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
JH, a resident of Aloha, Oregon, was using her computer at home and
connected to a nearby unsecured wireless network to access the Internet. When
she opened her iTunes software, she noticed a shared library called “Dad’s
Limewire Tunes.” She opened the library and observed several files with names
indicating that the files contained child pornography. After JH called the police,
Deputy John McCullough arrived at her residence and directed her to repeat the
process of connecting to the network and accessing the shared library. McCullough
also asked JH to open one of the images; the image she opened depicted a minor
engaged in sexually explicit conduct. Based on this information, law enforcement
officers obtained a search warrant to connect to the wireless network and
determined that the network belonged to Ahrndt. Officers then obtained and
executed a warrant to search Ahrndt’s home, from which they seized storage media
that contained images of child pornography.
The central issue is whether connecting to Ahrndt’s network, accessing his
shared library and opening one of his files amounted to a “search” within the
meaning of the Fourth Amendment. A search occurs when the government
violates an individual’s reasonable expectation of privacy. See United States v.
Jacobsen, 466 U.S. 109, 113 (1984). “An individual has a reasonable expectation
of privacy if he can demonstrate a subjective expectation that his activities would
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be private, and he [can] show that his expectation was one that society is prepared
to recognize as reasonable.” United States v. Heckenkamp, 482 F.3d 1142, 1146
(9th Cir. 2007) (internal quotation marks omitted) (alteration in original). A search
also occurs whenever “the Government obtains information by physically intruding
on a constitutionally protected area.” United States v. Jones, 132 S. Ct. 945, 950
n.3 (2012).
1. The district court held that no search occurred because Ahrndt had no
objectively reasonable or subjective expectation of privacy in the computer file that
Deputy McCullough accessed. The court’s conclusion was based on its finding or
assumption that Ahrndt used iTunes to share his files, a process that would have
required Ahrndt to take several affirmative steps. This finding, however, is
unsupported by the record. Special Agents James Cole and Anthony Onstad, the
two law enforcement officers who testified about iTunes, each testified that they
had no knowledge whether JH’s iTunes software was capable of detecting files on
Ahrndt’s computer that Ahrndt did not affirmatively share by using iTunes. Robert
Young, the only computer expert who appeared, testified that JH’s iTunes software
was capable of detecting files that were shared by other programs on Ahrndt’s
computer, such as Limewire. There is insufficient evidence that Ahrndt took
affirmative actions to enable open sharing in this manner. Furthermore, there is no
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evidence that Ahrndt ever installed iTunes on his computer. Thus it was clearly
erroneous to find that Ahrndt used iTunes to affirmatively share his files over the
network, and from that finding to conclude that Ahrndt lacked a reasonable
expectation of privacy. See Red Lion Hotels Franchising, Inc. v. MAK, LLC, 663
F.3d 1080, 1087 (9th Cir. 2011).
2. Further factfinding regarding the following questions also may be
beneficial in determining whether Ahrndt had a reasonable expectation of privacy
in his computer files:
• As a technical matter, is sharing files over a wireless network
accurately characterized as a “broadcast” of the contents of those files,
such that JH’s computer simply intercepted Ahrndt’s images outside
Ahrndt’s home? Or, alternatively, did the act of connecting to
Ahrndt’s network, accessing his library and opening the image
involve sending wireless signals into Ahrndt’s home to communicate
with his router and computer?
• Did Ahrndt intentionally enable sharing of his files over his wireless
network? If not, did he know or should he have known that others
could access his files by connecting to his wireless network?
• Was the image in “Dad’s LimeWire Tunes” library that JH and
McCullough opened accessible over the Internet by Limewire users at
the time JH and McCullough accessed the files, or at any time prior?
Given the flawed premise regarding Ahrnt’s affirmative use of iTunes, and
the technical questions we have noted, we reverse the district court’s denial of
Ahrndt’s motion to suppress, and remand for further proceedings and factfinding
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regarding the questions identified above, and any other questions the court deems
relevant. See United States v. Wright, 625 F.3d 583, 604, 620 (9th Cir. 2010)
(remanding for factfinding in the context of a suppression motion). The court
should also evaluate whether a search occurred in light of Jones, 132 S. Ct. 945,
decided after the district court’s original ruling. The panel shall retain jurisdiction
over any further appeals.1
REVERSED and REMANDED.
1
The government argues that, even if an unconstitutional search occurred,
suppression would be inappropriate because McCullough acted in good faith. We
do not reach that issue.
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