State v. Simons

329 Or.App. 506

540 P.3d 1130

STATE of Oregon, Plaintiff-Respondent,

v.Randall DE WITT SIMONS, Defendant-Appellant.

A177032

Court of Appeals of Oregon.

Argued and Submitted September 26, 2023

December 13, 2023

Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jennifer S. Lloyd, Salem, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and Jacquot, Judge.

AOYAGI, P. J.

Defendant was convicted of 15 counts of first-degree encouraging child sexual abuse, ORS 163.684, for downloading child pornography. He was caught as a result of his activities in accessing and downloading child pornography while using a free wireless internet (Wi-Fi) network that a fast-food restaurant near his home provided for its customers, subject to a user agreement.

Defendant raises two assignments of error. First, he argues that police monitoring of his internet browsing activity on the restaurant's Wi-Fi network constituted an unlawful warrantless search under Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution, such that the evidence obtained from the restaurant (and all derivative evidence) should have been suppressed. On that issue, we agree with the trial court that defendant did not have a constitutionally protected privacy interest under the circumstances, so no "search" occurred. Second, with respect to a later warranted search of his home, defendant argues that the trial court applied the wrong legal standard to decide whether the evidence from the home should be suppressed, after it concluded that some information in the warrant application was unlawfully obtained. We accept the state's concession on that point, and we agree with the state that the proper remedy is to remand for reconsideration of that ruling under the correct legal standard. Accordingly, we reverse and remand.

I. FACTS

"We review a trial court's denial of a motion to suppress for errors of law and are bound by the court's factual findings if there is constitutionally sufficient evidence to support them." State v. DeJong , 368 Or. 640, 643, 497 P.3d 710 (2021). We state the facts in accordance with the standard of review.

In 2018, the A&W restaurant in Oakridge provided free Wi-Fi for its customers. A&W did not require a password, but it did require users to agree to A&W's "Acceptable Use Policy" (user agreement), which entailed scrolling through the user agreement and checking a box to "agree" to the terms. Among other things, the user agreement notified potential users that A&W did not ensure "the security of any data you send through the Wi-Fi System and it is your responsibility to secure such data." It stated that A&W "does not actively monitor the use of the Wi-Fi System under normal circumstances," but that A&W "may remove, block, filter or restrict by any other means any materials that * * * may be illegal, may subject [A&W] to liability or may violate the [user agreement.]" Also, A&W "may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong." Examples of activities that would violate the user agreement were provided, including transmitting "unlawful," "obscene," or "otherwise objectionable" material (by uploading, posting, email or otherwise) or "intentionally or unintentionally" violating any local, state, national, or international law or regulation. Additionally, A&W "may disclose your communications and activities using the Wi-Fi System in response to lawful requests by governmental authorities, including Patriot Act requests and judicial orders."

The user agreement had to be accepted each time that a user logged onto A&W's guest Wi-Fi network. A user who stayed on the network for a long time would have to re-accept the terms every two to four hours. The Wi-Fi signal extended beyond A&W's property, so it was possible for noncustomers to access the guest Wi-Fi network, if they were close enough to the restaurant to be within signal range.

Porteous, the owner of A&W, employed Sanders, a private consultant, to install and maintain the guest Wi-Fi network, which included installing a firewall. The firewall automatically captured and logged unencrypted web traffic on the network. As a result, A&W knew the device names and Media Access Control (MAC) addresses of devices that used the network, the times that devices were logged onto the network, and the unencrypted websites and webpages that those devices visited. The firewall listed the visited websites by category, and one category was "Child Abuse Images." A&W's free firewall software did not allow for blocking websites; A&W would have had to buy the paid version to get that feature.

On July 2, 2018, while performing routine maintenance, Sanders displayed the firewall logs to Porteous, who asked about the "Child Abuse Images" category. That conversation led to their calling 9-1-1 to report that someone using a device called "IanAnderson-PC" had used the A&W network to access child pornography. Officer Larsen responded and began an investigation.

From July 2018 to June 2019, Sanders worked with Larsen to identify when "IanAnderson-PC" visited child pornography websites while on A&W's guest Wi-Fi network, which happened frequently during that time period. Sanders sent Larsen the firewall logs, as well as spreadsheets that Sanders created. Sanders added Larsen to an existing firewall feature, so that Larsen would receive an email alert whenever a user accessed a child-abuse website. Sanders also sent Larsen "packet capture" or "PCAP" data for IanAnderson-PC, which is a type of data that can be used to reconstruct someone's internet activity on a particular network, although only unencrypted activity can be viewed. Using the information provided by Sanders, the police were able to see all of IanAnderson-PC's unencrypted internet activity while logged onto A&W's network, including both illegal activities—accessing child pornography websites and downloading images—and benign activities such as book shopping on Amazon.

The police eventually determined that a man named Thomas (who used "Ian Anderson" as an alias) was the original purchaser of the "IanAnderson-PC" device, and that Thomas had given the laptop to defendant about two years earlier. The police also determined that defendant lived across the street from the A&W restaurant and that his home was within range of A&W's network.

At that point, the lead investigator, Detective Weaver, believed that he "absolutely had probable cause" to obtain a search warrant for defendant's home. However, he wanted to be able to say with "100 percent" certainty that the IanAnderson-PC signal was coming from defendant's home, so he walked around the triplex in which defendant lived while using Kismet software and a directional antenna (a combination known as a "packet sniffer"), which successfully located where the signal was strongest when "IanAnderson-PC" logged onto A&W's guest Wi-Fi network. Weaver took that extra step before applying for a warrant because he "wanted to prove the case beyond a reasonable doubt." He testified that he would have applied for a warrant even without the Kismet information though.

Using all of the foregoing information, Weaver obtained a warrant to search defendant's home. The police seized a laptop from the home that was later confirmed to be "IanAnderson-PC." A search of that laptop found child pornography.

Defendant was indicted on 15 counts of first-degree encouraging child sexual abuse. Before trial, he moved to suppress evidence obtained in violation of Article I, section 9, and the Fourth Amendment. As relevant here, defendant argued that, with respect to the evidence gathered from A&W's guest Wi-Fi network (first motion), Sanders had acted as a state agent and effectuated an unlawful warrantless search of his internet activity. As for the warranted search of his home (second motion), defendant challenged the warrant on the basis that the warrant application included the Kismet information, which was acquired in an unlawful search. The state opposed both motions.¹ On the second motion, the state argued that, even if the Kismet information was improperly obtained and should not have been included in the warrant application, the record showed that the police would have applied for and successfully obtained a warrant without that information, so the "inevitable discovery" doctrine applied.

The court held a hearing on defendant's motions to suppress, during which Sanders, Weaver, and Larsen testified, and the A&W user agreement was admitted into evidence. The court then issued a written opinion denying the motions (which it later supplemented at defendant's request). With respect to the evidence from A&W's guest Wi-Fi network, the court agreed with defendant that Sanders acted as a state agent, but it concluded that no "search" had occurred for constitutional purposes, because defendant did not have a constitutionally protected privacy interest in the information that Sanders turned over to the police. As for the warranted search of defendant's home, the court agreed with defendant that Weaver conducted an unlawful warrantless search when he used the Kismet software to identify the signal's strength and location while outside defendant's home. However, it denied the motion to suppress evidence from defendant's home, because it concluded that, upon excising the Kismet information, the warrant application was still sufficient to establish probable cause. The court did not reach the state's inevitable discovery argument.

Defendant waived jury, and the charges were tried to the court on stipulated facts. The court found defendant...