Two cases today. One on the Fourth Amendment and one on SORNA
In United States v. Norris, --- F.3d ---, No. 17-10354 (9th Cir. 2019), the Court affirmed the defendant's conviction for distribution and
possession of material involving the sexual exploitation of
minors.
The case involved the government's use of software and a directional antenna to find the location of the defendant's computer.
The basic facts were that the defendant hacked into his neighbor's wireless network from an adjacent apartment and used that internet connection to share contraband images on a peer-2-peer network.
To find the defendant's location (that is, the location of his computers), agents used a wireless
tracking software program, Moocherhunter, designed to identify computers trespassing on
wireless networks, and a wireless antenna. The software pointed the agents to the defendant's apartment. They obtained a search warrant and found contraband.
The district court denied the defendant's motion to suppress, and the Court affirmed.
First, it held there was "no actual physical intrusion
into Norris’s apartment," because the signal extended outside of his home and was captured outside of his home: "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."
Second, the Court held that, under the Katz test, there was no reasonable expectation of privacy in the signal because it extended outside of the home (and on this basis, the Court distinguished Kyllo). Further, the Court explained, "[w]e 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."
The Court also rejected the defendant's argument that he was entitled to a Franks hearing.
Moving on, in United States v. Dailey, --- F.3d ---, No. 18-10134 (9th Cir. 2019), the Court dismissed an appeal from the district court’s
imposition of a probation condition requiring the defendant
to register as a sex offender pursuant to the Sex Offender
Notification and Registration Act.
This is one of those cases where the Court had to decide the merits of the appeal to determine whether it was covered by the appellate waiver.
On that subject, the Court summarized the relevant waiver law:
There are,
however, several exceptions to waivers of the right to appeal.
“An appeal waiver will not apply if: 1) a defendant’s guilty
plea failed to comply with [Federal Rule of Criminal
Procedure] 11; 2) the sentencing judge informs a defendant
that she retains the right to appeal; 3) the sentence does not
comport with the terms of the plea agreement; or 4) the
sentence violates the law.” Among other things, a sentence that violates the law is a sentence “in
excess of the permissible statutory penalty for the crime,” a category that includes unlawful probation
conditions.
The defendant argued the last exception applied, because she was wrongly
required to register under SORNA. She claimed her conviction
for violating the Travel Act did not constitute a “sex offense.”
In rejecting her claim, the Court held the categorical approach does not apply: "faced with the question whether the only acceptable
interpretation of [SORNA's] residual clause is to apply a noncategorical approach regarding the age of the victim, we hold
that it is."
Thus, because the defendant admitted in her plea that the offense of conviction involved a minor, registration was required.
