                                                                               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                           NOT FOR PUBLICATION                                  APR 06 2012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


                                          2
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


                                          3
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


                                          4
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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