case on counter for argument is united states versus north agents who sense and hansing technology sophisticated software with a directional in time to gather information about the interior of norris's apartment that they could not otherwise have obtained without physically intruding into the apartment by using this equipment to measure electromagnetic radiation emanating from the apartment agents were able to locate a computer inside norris his apartment because we intruded into his home in this manner and so conducted a search without first obtaining a warrant the search was unreasonable in violation of the fourth amendment our position is that this is a search requiring a warrant under the square holding of the carlow decision and in that case to court help that when officers obtained by sense and hanssen technology information regarding the interior of the house that they could not otherwise have obtained without a physical intrusion into a constitutionally protected area it's a search at least where the technology is not in general public use now unlike tyler moore is transmitted this signals to another residence it wasn't his residence he did he what he did was he he accessed the neighbor's wireless router the government's position is by doing so it both under the third party doctrine as well as he lost any kind of subjective expectation of privacy our position is is that there is still a reasonable expectation of privacy into his own home and the reason is this when he accessed the neighbor's router admittedly without authorization what he did was he transferred a signal there that allowed the neighbor to be able to obtain his ip address his and some information and if the agents at that point took that information and then up taint of warrant or use that information other lawful means he had nothing argue with but here they took the mac address put it into this fist acadia technology called moocher hunter and with a directional antenna used other information from his home that was not other information that was not accessible to the neighbor they took the radio waves or emanating from his home measured out with this device in multiple places and then was able to determine the  not sure if it's technically the other router or not a computer expert here but basically did it did determine where the radio waves are emanating from his computer  hard drive well that's where the radio waves ended not where they originated is not right well that the radio waves i mean dating from his computer at all times even if he wasn't accessing the neighbor's computer needed was the mac address put it into the software and then was able to read those radio waves determine the strength in the same way a submarine uses sonar was able to determine exactly where the computer was in fact in this case they were in a they were only able to determine that it was an apartment two forty three mr norris's computer that the technology was sophisticated enough  to say that the computer was likely located in the third floor southernmost bedroom other of the apartment so they were able to change and that's that excerpt of record one seventy two they were able to obtain specific information about the interior of his home and where the computer was located at the neighbor would never have been able to determine the government has said essentially two main arguments one is under the third party doctor and that because he gave the signal some signal information to the neighbor that that  early access to it is no longer a reasonable expectation of privacy i think it's important to note that the supreme court in carpentier recently refused to extend that third party doctrine an argument that wouldn't apply anyway because the information that the agents used was not the information that went directly to the router and they used additional information additional signal information that was not that didn't go to the router their second argument is that it doesn't the it's not a reasonable expectation privacy even if you had a subjective expectation it's not one that societies were paired to recognize because of the  authorized access and i kind of explained that in the sense that it only accesses only certain signals go to the neighbor it doesn't also the agents had to use additional information that was beyond what went to the neighbor's router and that's why i think the distinction is significant the second argument here is a frank challenge going to the information that was in the search warrant affidavit and the argument here is that the government failed to disclose significant information about the reliability of this  software system and if it had given that information to the judge that information was material and what would the judge would not have issued the warrant and the the motion to suppress listed a number of different i don't is that the government's affidavit was not fully accurate or admitted one counsel are you saying that the omissions to which you refer w some six cents you can infer from the importance of the information that was admitted that it was not done in time there was done intentionally or recklessly course we didn't have a franks hearing so we didn't able to present full hearing full evidence the but essentially there was no information that it was reliable in the affidavit it omitted it falsely stated that it was open sauce open source software when in fact it was proprietary software mean when when when software is open source it's generally considered to be more reliable because it's open to peer review other people are able to test it make corrections to it determine the  doesn't make the proprietary software unreliable well compared to open sauce open source software is generally more reliable than proprietary atlee but that doesn't mean that the proprietary software is not reliable it in and of itself that is correct but that as what there was one error in the affidavit along with others it i agents had not been trained in the software is use while the website for the software specifically says that if only trained operators should use it or could give false there any indication that the f b i misused the software in any way well part of it is the defense is a little bit hamstring here because some of the results are the testing results were lost by the government and so the defense was neighbor able to use the readings from the software and determine exactly whether it was accurate and that's why we wanted for hearing on it there was the omissions as you argue would go to simply the degree of reliability of the software and whether it's one hundred percent reliable or seventy five percent reliable would wouldn't really make a difference to whether there was probable cause to issue the war well i think it's analogous to when the government presents information from an informant you want information about the credibility of the informant to show that the informant is reliable when using that in the same way when it just says it uses th software without accurate information about its reliability it undercuts the probable cause is well was the the other aspect that was mentioned in the forces search warrant  motion was that it didn't have not undergone formal f b i testing and that the officers didn't have appropriate training in it as well as the fact that in some cases the really would have undercut probable cause and i will reserve my remaining time i think you counsel will hear from the government please the court matthew morrison represent the united states i was one of the two prosecutors on this case in the district court on the question of the motion to suppress your honor there was no fourth amendment search here because there's no reasonable expectation of privacy in the strength of the radio signals that mr norris was using while hacking into his neighbor's router every every judge every court that has looked at this has applied records feel annoyed and said when you're wrongfully trespassing you don't have a reasonable expectation of privacy that society is prepared to to recognize as reasonable and i say every court i'm talking about three district courts broadhurst and the district court in this case and the district court in stanley and all three judges on the third circuit in the stanley panel all agreed that when you're wrongfully trespassing across your neighbor's network to break the law you don't have a reasonable expectation of privacy and this is a break in the law for him to access wireless from his neighbor's home we believe it is your honor cited under california penal code if you have if you accessed someone's computer without authorization over a certain amount of time that does qualify as a misdemeanor under california law nevertheless even if it weren't against california she intruded password protected it was your honor which makes us a little bit more wrongful than the case and stanley so in the stanley case in the third circuit it was not a password protected router in this case the evidence showed that it was a password protected router he had used his computer savvy to break the password to use his neighbor's generally internet wireless router so would you respond to posing councils point that notwithstanding the access to the signal in the router which was not in his his home the process disclosed information that was in the home if i understand the  argument we disagree on that your honor what we agree is that the f b i standing in places at all times where they had the right to be either the neighbor's apartment or common areas or an empty apartment simply measured the strength of  the radio signal being transmitted knowingly by mr norris and again only during times when he was hacking what they were able to do the strength alone tells you the source the strength alone gave them enough to go back to a judge and say we think there's a fair probability probable cause that this computer is in the neighboring apartment one of the areas where they did keep the notes of the readings is that s e r seventy nine that's one of their handwritten notes about the signal strength readings and you'll see parts where they point an arrow and say one hundred and other parts where it's numbers less than that now is it your position that the equipment did not have to read anything though from his home it i'm not sure innocent question did it didn't it certainly didn't it didn't intrude into his home so the district court made the finding that there was no trespass so at no point did the agents either physically or electronically go into his apartment so how  detected simply standing in other places listening to what the strength of the signal is so that the there's a declaration attached to the to our opposition to the motion to suppress where the c e o of the company that invented this particular version of the software talked about the the relative signal strength so it's sort of like if somebody made a complaint about loud music you could stand in the entryway and try to figure which apartment is the music coming from but that going into the apartment just standing in the hallway and trying to figure out which apartment is this music coming from that would be a very similar analogy your honor so an analogy would be the police standing to call for a loud music stand in the street and say which of these apartment buildings is the live music coming from and it sounds like it's coming from that way and then going in that case they would investigate without a warrant in this case after they said it sounds like it's coming from that way they then went back to the same judge and said we now like to get a warrant to search that location  or similarly you know that a technology that's developing right now is this shot spotter technology where microphones around a city say we think we heard a gunshot from this location and the police then respond to that a similar idea but all that they measured was the the the signal strength the same thing that every one of us when we turn on our i phones and it says which network do you want to connect to and it gives you one two or three arcs of strength of the wireless signal on your phone every day i would be careful not to go into one that we're not the have we have maintained and we still maintain that separate from the wrongful possession argument is that the third party doctrine is appropriate here we recognize that two of the three judges in the third circuit disagree with our position on that which means that the  opinion in the third circuit did not extend as far as we have argued and for that and therefore didn't extend as far as judge mueller in this case would have extended it however even though even though they didn't quite join judge mueller even the third circuit does recognize it page one twenty of their opinion that that the third party doctrine is in play when they talk about the fact that smith talks about people who knowingly transmit things outside of their home that you lose some expectation of privacy there so even the third circuit while rejecting the position we've taken excepted that there is sort of an interplay here between third party doctrine and the wrongful possession doctor and these types of cases  briefly talk about carlo before moving on then to the franks hearing in this court case the district court made a factual finding that carlo is inappropriate or didn't give any permit any protection to the defendant because he was transmitting information outside of his apartment it goes to the wrongfulness and it goes to what we think should be the smith argument but the very least she made it also in the in the context of the kind of the argument that goes back judges scanlan to your question and this is different from carlo because  it was a case where somebody is trying to keep their conduct confined within their house and law enforcement used information to kind of see what was going on inside there this is a case where he knowingly transmitted outside the walls of his apartment so it's really not carlo miller said that the th hearing of the request for a frank searching attorney that i think judge rawlinson i think that your you hit on one of our issues here there's no evidence of either reckless or intentional untruths that is the requirement to show to even get a frank's hearing you have to make a substantial preliminary showing under frank's to even get the hearing and in this case the district court concluded correctly that there was no substantial preliminary showing of either reckless or intentional conduct as to the alleged omissions the district court meticulously analyzed all of those and went point by point and in some cases in the light of what i've learned since if they had given all this information to the to the magistrate probable cause would cause would have increased and that related for example to their training the  testing that they had done as well as the resumes and curricula vitti of the agents the only issue that she thought they could have done a better job of phrasing it for the judge was this question of open source software th in the search warrant said that he had interpreted open source to mean he didn't have to go through normal f b i procurement channels to buy it so she suggested just mueller says perhaps if you had been more full fully describing this as not being free they would been more information but she made the finding that that was not necessary to probable cause under franks that's it has to be a material mission that was necessary to probable cause in order to get the franks hearing so for those reasons likewise the district did not a declining to order the franks hearing there was no substantial pulmonary showing and all of the complained alleged omissions were in fact either not omissions or misunderstandings by the defense or in fact that increased probable cause  mr morris stated that all the officers were doing was standing outside and measuring signal strength the big difference here in this case between those two examples is that they use additional sophisticated sense and handsome technology they weren't just outside the apartment you cannot measure radio waves without that sophisticated wasn't a situation where you're just using your ear and listening to music or radio waves it's the fact of using this to fista kate acknowledge the with the directional antenna that puts it directly into the holding of is it more like the where they use the technology to figure out whether there use to obtain details of the interior of the home that you could not otherwise obtain except through a physical intrusion it's a search and the same is never he detected the router which was not in the home isn't that correct this was the neighbor's router so that their neighbors router was able to pick up the mac address and the ip address it could use that information then to obtain a warrant and then say we would like to use this moocher hunter's software and we have them at this address because we're conducting a search they could have easily done that and then we were that would be nothing here to argue in the in the cayman case the ninth circuit case i think it's somewhat analogous and the government use that to argue that when you are painting a laptop computer by fraud you lose a reasonable expectation of privacy in it but it's important in that case the law enforcement officers actually got a warrant to look for the laptop in the person's home because the home has the greatest degree of privacy under the fourth amendment what the defendant was arguing in came and is that once they had the laptop computer they needed a it would be a search and destroy or to actually look at the contents of the laptop and that's the same kind of argument we're making here they could have used they could if they've gotten a warrant used a moocher hunter software and then determine the location of the home that's the proper procedure the use but because the fourth amendment as a general presumption makes searches without a warrant and reasonable this search was unreasonable in violation of the fourth amendment thank you thank you counsel thank you to both counsel has just argued is submitted for