506 December 13, 2023 No. 651

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

RANDALL DE WITT SIMONS,

Defendant-Appellant.

Lane County Circuit Court

19CR43543; A177032

Karrie K. McIntyre, Judge.

Argued and submitted September 26, 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, 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.

Reversed and remanded.
Cite as 329 Or App 506 (2023) 507
508 State v. De Witt Simons

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 P3d 

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” 
Cite as 329 Or App 506 (2023) 509

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.
510 State v. De Witt Simons

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 
Cite as 329 Or App 506 (2023) 511

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 

1 Technically, defendant filed a single motion to suppress that he later 

amended, then supplemented, and there was briefing at each stage. As defendant acknowledges, his motion to suppress “encompassed multiple distinct legal 

issues.” For ease of reference and clarity, we discuss defendant’s motion as two 

motions, tracking defendant’s two assignments of error on appeal.
512 State v. De Witt Simons

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 

guilty on all counts. This appeal followed.

II. DEFENDANT’S INTERNET BROWSING HISTORY 

ON A&W’S GUEST WI-FI NETWORK

Defendant’s first assignment of error pertains to 

his motion to suppress evidence that the police obtained, via 

Sanders, from A&W’s guest Wi-Fi network. As previously 

described, the trial court agreed with defendant that Sanders 

acted as a state agent,2

 but it decided 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. Defendant 

assigns error to the denial of his motion, arguing that he had 

a constitutionally protected privacy interest in his internet 

browsing history. We conclude that the court did not err.

A. Article I, Section 9

Article I, section 9, prohibits unreasonable searches 

by the government. Or Const, Art I, § 9 (“No law shall violate the right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable search, 

2 To the extent that the state challenges the trial court’s determination that 

Sanders acted as a state agent, we need not reach that issue in light of our disposition. That includes not needing to address whether the issue is procedurally 

properly before us.
Cite as 329 Or App 506 (2023) 513

or seizure.”). In deciding whether an unreasonable search 

occurred, the threshold question is whether the government 

conducted a “search” at all. State v. Meredith, 337 Or 299, 

303, 96 P3d 342 (2004). “If the government conduct did not 

amount to a ‘search’ within the meaning of Article I, section 

9, then the protections of that constitutional provision do not 

apply, and [the court’s] inquiry ends.” Id.

Whereas federal courts frame the “search” issue in 

terms of reasonable expectations of privacy, Oregon frames it 

differently: “[T]he privacy protected by Article I, section 9, is 

not the privacy that one reasonably expects but the privacy to 

which one has a right.” State v. Campbell, 306 Or 157, 164, 759 

P2d 1040 (1988) (emphases in original). The Oregon Supreme 

Court has rejected the “reasonable expectation of privacy” 

formulation for purposes of Article I, section 9, because that 

phrase “becomes a formula for expressing a conclusion rather 

than a starting point for analysis, masking the various substantive considerations that are the real bases on which 

Fourth Amendment searches are defined.” Id.

A “search” occurs for purposes of Article I, section 9, 

when the government invades a “protected privacy interest.” 

Meredith, 337 Or at 303. As described in Campbell, in the 

specific context of technological advances:

“A privacy interest, as that phrase is used in this court’s 

Article I, section 9, opinions, is an interest in freedom from 

particular forms of scrutiny. The interest is not one of freedom from scrutiny in general, because, if that were the 

case, any form of scrutiny would infringe a privacy interest 

and thereby be considered a search. * **

“Government scrutiny aside, individual freedom from 

scrutiny is determined by social and legal norms of behavior, such as trespass laws and conventions against eavesdropping. [Examples provided.] * **

“Our intention is not to set forth a definition of search 

based upon social and legal norms of behavior but to clarify 

the nature of the interest protected by Article I, section 9. 

Social and legal norms cannot govern the scope of the constitutional provision, which itself plays a substantial role in 

shaping those norms. But since 1859, when Article I, section 

9, was adopted, the government’s ability to scrutinize the 
514 State v. De Witt Simons

affairs of ‘the people’ has been enhanced by technological 

and organizational developments that could not have been 

foreseen then. *** In deciding whether government practices that make use of these developments are searches, we 

must decide whether the practice, if engaged in wholly at 

the discretion of the government, will significantly impair 

‘the people’s’ freedom from scrutiny, for the protection of 

that freedom is the principle that underlies the prohibition 

on ‘unreasonable searches’ set forth in Article I, section 9.”

306 Or at 170-71 (internal citations omitted; footnote omitted); see also State v. Wacker, 317 Or 419, 425, 856 P2d 1029 

(1993) (requiring the court to make an objective inquiry 

into whether “the government’s conduct would significantly 

impair an individual’s interest in freedom from scrutiny, i.e., 

his privacy” (internal quotation marks omitted)).

Ultimately, the question is whether the defendant 

“had a protected privacy interest in light of the particular context in which the government conduct occurred.” 

Meredith, 337 Or at 306. “Whether a constitutionally protected privacy interest exists is a question of law.” State 

v. Hawthorne, 316 Or App 487, 495, 504 P3d 1185 (2021), 

rev den, 369 Or 856 (2022).

Here, defendant contends that “[a] person has a protected privacy interest in their internet use, which includes 

nonpublic, noncriminal information that can reveal many 

sensitive facts about their private life.” Relying on Campbell 

and Hawthorne, he argues that the police violated his 

right to privacy by surreptitiously monitoring his internet 

use over the A&W guest Wi-Fi network for a year, which 

revealed both his illegal activities (child pornography) and 

lawful activities (such as book shopping).

The state counters that a person who uses a Wi-Fi 

network owned by a private business does not have a constitutionally protected privacy interest in information about 

their activities on the network. Further, the state argues, 

defendant received access to A&W’s network only after 

accepting the user agreement, which prohibited use of the 

network to transmit obscene material or engage in illegal 

activity, and which notified users that, although A&W did 

not “actively” monitor use of the network “under normal 
Cite as 329 Or App 506 (2023) 515

circumstances,” it could remove, block, filter, or restrict 

materials that were illegal or that violated the user agreement and that A&W “may cooperate with legal authorities 

and/or third parties in the investigation of any suspected or 

alleged crime or civil wrong.”3

We begin our analysis with Campbell, Meredith, 

and Hawthorne, which are the cases on which the parties 

principally rely.

In Campbell, decided in 1988, the police suspected 

the defendant in a series of burglaries. 306 Or at 159. After 

unsuccessfully trying to follow him by traditional means, 

they surreptitiously attached a radio transmitter to his 

car while it was parked in a public lot. Id. at 159-60. That 

allowed them to determine the car’s approximate location 

by tracking the transmitter from an airplane. Id. at 160-61. 

One day, the police located the car in that manner (40 miles 

away), went to the location, and observed the defendant commit a burglary. Id. On review, the Supreme Court held that 

using the transmitter to locate the car was a “search” under 

Article I, section 9. Id. at 172. It explained that the use of a 

“device that enables the police quickly to locate a person or 

object anywhere within a 40-mile radius, day or night, over 

a period of several days, is a significant limitation on freedom from scrutiny” and that the limitation was “made more 

substantial by the fact that the radio transmitter is much 

more difficult to detect than would-be observers who must 

rely upon the sense of sight.” Id. at 172. The court concluded,

“Conversations in public may be overheard, but it is relatively easy to avoid eavesdroppers by lowering the voice 

or moving away. Moreover, one can be reasonably sure of 

whether one will be overheard. But if the state’s position 

in this case is correct, no movement, no location and no 

3 We do not understand the state to rely on the “third-party doctrine,” 

although some of its arguments touch on that doctrine’s principles. See Hawthorne, 

316 Or App at 498-99 (“Under Article I, section 9, Oregon courts have held that, 

in some instances, a person does not have a protected privacy interest in information that the person voluntarily allows a third party to access and maintain 

for its own legitimate business purposes.”); see also Carpenter v. United States, 

585 US ___, ___, 138 S Ct 2206, 2219-220, 201 L Ed 2d 507 (2018) (describing 

the third-party doctrine, for purposes of the Fourth Amendment, as essentially 

recognizing that a person who voluntarily exposes information to a third party 

assumes the risk that the third party will share it). In any event, we need not 

apply the third-party doctrine to resolve this case, so we do not address it.
516 State v. De Witt Simons

conversation in a ‘public place’ would in any measure be 

secure from the prying of the government. There would in 

addition be no ready means for individuals to ascertain 

when they were being scrutinized and when they were 

not. That is nothing short of a staggering limitation upon 

personal freedom. We could not be faithful to the principles underlying Article I, section 9, and conclude that such 

forms of surveillance were not searches.”

Id.

Sixteen years later, in 2004, the Supreme Court 

decided Meredith, which involved “the same technology and 

the same type of monitoring by a government agent,” but 

reached a different result. 337 Or at 302-03. In that case, the 

defendant was employed as a fire prevention technician with 

the United States Forest Service (USFS). Id. at 301. A USFS 

district ranger authorized law enforcement agents to attach 

a radio transmitter to one of its trucks while it was parked 

on USFS property. Id. at 301-02. The agents then tracked the 

truck from an airplane while the defendant drove it for work, 

and eventually observed the defendant committing arson. Id.

at 302. The court held that no “search” took place for purposes of Article I, section 9, because the agents did not violate 

any protected privacy interest of the defendant. Id. at 307.

In reaching that conclusion, the court explained 

that Campbell did not stand for the proposition that a person has “the right to be free from the government’s surreptitious use of a transmitter to monitor a person’s location and 

movements under any circumstances.” Id. at 304 (emphasis in original). The court also rejected reading Campbell to 

mean that the court “looks to only the government conduct 

asserted to be a search and evaluates how that conduct, if 

engaged in wholly at the discretion of the government, would 

impact the general privacy interests of ‘the people.’” Id. at 

305. Rather, the court had always taken a circumstancespecific approach, assessing “whether the defendant had 

had a protected privacy interest in light of the particular 

context in which the government conduct occurred.” Id. at 

305-06 (discussing prior case law).

Thus, properly framed, the interest at issue in 

Meredith “boil[ed] down to defendant’s claim to an interest in 
Cite as 329 Or App 506 (2023) 517

keeping her location and work-related activities free from this 

type of electronic surveillance by her employer while she used 

employer-owned property on work time.” Id. at 306. The court 

concluded that the “defendant did not have a protected privacy interest in keeping her location and work-related activities concealed from the type of observation by her employer 

that the transmitter revealed.” Id. at 307. Given the specific 

facts of the case, “neither the attachment of the transmitter to 

the truck nor the subsequent monitoring of that transmitter’s 

location invaded a privacy interest of defendant, and, it follows, no search implicating Article I, section 9, occurred.” Id.

Nearly two decades later, in 2022, we decided 

Hawthorne. In that case, the police were investigating a 

murder that had just occurred, and they wanted to find the 

defendant, who was their prime suspect. 316 Or App at 489. 

“Before they obtained a search warrant, detectives asked 

that defendant’s cell phone service provider ‘ping’ defendant’s phone’s location to help locate the fleeing suspect.” Id. 

The service provider did so and gave the police the resulting cell-site location information (CSLI), which showed 

the phone’s general location as close to a certain motel. Id. 

at 492. Looking to Campbell and Meredith, as well as the 

description of the nature of cell phone tracking in Carpenter 

v. United States, 585 US ___, 138 S Ct 2206, 201 L Ed 2d 

507 (2018), we concluded that a “search” had occurred under 

Article I, section 9. Id. at 496-98.

We explained that cell phones “continuously” tap 

into cell sites to search for a signal and that “[a]s technology improves and cell sites increase, cell phones generate 

‘increasingly vast amounts of increasingly precise CSLI.’” 

Id. at 496 (quoting Carpenter, 585 US at ___, 138 S Ct at 

2212). Thus, a cell phone “‘tracks nearly exactly the movements of its owner.’” Id. at 497 (quoting Carpenter, 585 US 

at ___, 138 S Ct at 2218). At the same time, cell phones have 

become “necessary for participation in modern life” and 

are “‘almost a feature of human anatomy’” at this point. 

Id. (quoting Carpenter, 585 US at ___, 138 S Ct at 2218). 

Given that combination of facts, “[t]he intrusion caused by 

pinging a cell phone is even greater than that posed by a 

tracking device attached to a car.” Id. Tracking the location 
518 State v. De Witt Simons

of a person’s cell phone “‘achieves near perfect surveillance’” 

of that person and “has the potential to reveal where a person spends time,” which in turn “could reflect a person’s 

religious, political, social, or professional associations.” Id. 

(quoting Carpenter, 585 US at ___, 138 S Ct at 2218).

That led us to conclude that pinging the defendant’s 

cell phone qualified as a “search” for purposes of Article I, 

section 9. We summarized our reasoning:

“As ubiquitous as cell phones are, they could become tracking devices that the authorities could tap into at will. That 

potential would ‘significantly impair the people’s freedom 

from scrutiny.’ Campbell, 306 Or at 171 (internal quotation 

marks omitted). Without a warrant to assure judicial oversight, such clandestine, technological intervention would 

be susceptible to abuse. Mindful of Campbell, we conclude 

that pinging defendant’s phone to reveal its real-time location was a sufficiently intrusive action to be a search under 

Article I, section 9.”

Id. at 497. We then distinguished Meredith, explaining that 

the defendant’s service agreement with his cell phone service provider was “not equivalent to the employment relationship in Meredith” and was “not an agreement to have 

the government use his or her phone as a real-time tracking 

device.” Id. at 498.4

Returning to the facts of the present case, defendant contends that the state’s monitoring of his internet 

browsing history is “a more severe intrusion” into privacy 

than the searches in Campbell and Hawthorne. In his view, 

unrestrained government monitoring of public Wi-Fi networks raises the same concerns as unrestrained access to 

cell phone location data (as discussed in Hawthorne), because 

public Wi-Fi networks are “ubiquitous” and have the potential to surreptitiously track people “anytime they access[] 

the internet via an open Wi-Fi network.”

Whatever concerns may exist about public Wi-Fi networks becoming state tracking devices as a result of people 

4 We ultimately affirmed the denial of the motion to suppress in Hawthorne, 

on the basis that the state had established exigent circumstances. 316 Or App 

at 489. However, only the “search” holding from Hawthorne is pertinent to the 

present discussion.
Cite as 329 Or App 506 (2023) 519

involuntarily and unknowingly connecting to them, that 

is not the issue before us. Like the defendant in Meredith, 

defendant misframes the privacy right at issue by stating 

it too broadly. What is at issue is not a person’s right to privacy in internet browsing history in general terms. Rather, 

what we must assess is whether defendant “had a protected 

privacy interest in light of the particular context in which 

the government conduct occurred.” Meredith, 337 Or at 306 

(emphasis added).

Here, we conclude that he did not. Specifically, 

defendant did not have a constitutionally protected right 

to keep private his internet browsing activities—including 

illegal activities—that occurred over A&Ws guest Wi-Fi network, to which he had been granted access only after entering into a user agreement that prohibited using the network 

to transmit obscene material or engage in illegal activity, 

and which notified defendant that A&W had the ability to 

monitor users’ activities on the network (even if it did not 

“actively” do so “under normal circumstances”), as well as 

that A&W “may cooperate with legal authorities * ** in the 

investigation of any suspected or alleged crime[.]”

We disagree with defendant that the user agreement was unclear or confusing as to whether A&W might 

cooperate in a criminal investigation without a warrant. 

To the contrary, it was quite clear that A&W might do 

exactly what it did in this case: notice that someone was 

using the guest Wi-Fi network to transmit obscene material and engage in criminal activity in violation of the user 

agreement, alert the police, monitor the network more 

closely due to the abnormal circumstances, and cooperate 

with the police in investigating the suspected crimes. That 

is precisely the type of scenario that the user agreement 

contemplates.

Defendant accepted the terms of the user agreement 

every time that he used A&W’s guest Wi-Fi network, including re-accepting them every two to four hours when he stayed 

on the network for longer periods of time.5

 Nonetheless, 

5 It appears that defendant regularly used A&W’s guest Wi-Fi network to 

access the internet. The record shows that, between July 2018 and June 2019, 
520 State v. De Witt Simons

defendant repeatedly violated the user agreement by accessing and downloading child pornography, which brought him 

to A&W’s attention. None of defendant’s internet browsing 

data was encrypted, so it was readily available to A&W as 

the network provider, and A&W accessed that data in a 

manner consistent with its user agreement.

Although defendant’s relationship with A&W 

may not be comparable to the employment relationship in 

Meredith, his situation also is not comparable to those of the 

defendants in Campbell and Hawthorne. Defendant repeatedly logged onto A&W’s guest Wi-Fi network and accepted 

A&W’s user agreement, then violated that user agreement 

by transmitting obscene material and engaging in illegal 

activity, while on notice that A&W had the ability to monitor 

his activity and might cooperate with the police in investigating criminal activity on its network. Moreover, we disagree 

with defendant that A&W’s user agreement is analogous to 

the cell phone service agreement in Hawthorne. Unlike having a cell phone, having access to private businesses’ guest 

Wi-Fi networks, while convenient, is not “‘necessary for participation in modern life.’” Hawthorne, 316 Or App at 497 

(citing Carpenter, 585 US at ___, 138 S Ct at 2218). Also, our 

discussion of the cell phone service agreement in Hawthorne

was primarily tied to the state’s arguments regarding the 

third-party doctrine, and there is no indication that any 

arguments were made regarding the actual terms of the 

agreement. See id. at 496-99. We expressed no opinion in 

Hawthorne—and we continue to express no opinion—on the 

effect of specific terms of a cell phone service agreement. 

Nor do we understand Hawthorne to hold that no agreement 

is ever relevant to whether a person has a protected privacy 

interest in particular circumstances.

We agree with the trial court that defendant did 

not have a right to privacy in his internet browsing history 

on A&W’s guest Wi-Fi network under these circumstances 

and that, consequently, no “search” occurred under Article I, 

section 9.

defendant visited 255,723 webpages while logged onto A&W’s network. According 

to numbers provided by defendant, approximately 63 percent of defendant’s internet usage while on A&W’s network involved “legal” activities.
Cite as 329 Or App 506 (2023) 521

B. Fourth Amendment

We next consider the same argument under the 

Fourth Amendment, as defendant relied on both the state 

and federal constitutions in his suppression motion.

The Fourth Amendment prohibits “unreasonable 

searches and seizures.”

US Const, Amend IV (“The right of the people to be secure 

in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”). The 

fundamental purpose of the Fourth Amendment “is to 

safeguard the privacy and security of individuals against 

arbitrary invasions by governmental officials.” Carpenter, 

585 US at ___, 138 S Ct at 2213 (internal quotation marks 

omitted). A “search” occurs for Fourth Amendment purposes 

when the government invades a person’s “reasonable expectation of privacy.” Wacker, 317 Or at 427 (internal quotation 

marks omitted). A “reasonable expectation of privacy” is 

“one that society is prepared to recognize as reasonable.” 

Carpenter, 585 US at ___, 138 S Ct at 2213 (internal quotation marks omitted). Thus, there are “two questions: first, 

whether the individual has shown that he or she seeks to 

preserve something as private; second, whether the individual’s expectation of privacy is one that society is prepared 

to recognize as reasonable.” Wacker, 317 Or at 427 (internal 

quotation marks omitted).

Defendant contends that he had a reasonable expectation of privacy in his internet browsing history. He recognizes that, while “reasonable expectation of privacy” is a 

different formulation than the standard under Article I, section 9, many of the underlying concerns are similar, and his 

arguments under the Fourth Amendment are similar to his 

arguments under Article I, section 9, except that he relies 

entirely on Carpenter for his Fourth Amendment argument.

In Carpenter, while investigating a string of armed 

robberies, law enforcement officers obtained historical 

CSLI data from the defendant’s cell phone service provider 

and used it to reconstruct his physical movements for four 

months. 585 US at ___, 138 S Ct at 2212-213. Cell phones 

generate CSLI data “without any affirmative act on the part 
522 State v. De Witt Simons

of the user beyond powering up,” and CSLI data can be used 

to create “a detailed chronicle of a person’s physical presence 

compiled every day, every moment.” Id. at ___, 138 S Ct at 

2220. The Court held that the government conduct constituted a “search” because it invaded the defendant’s reasonable expectation of privacy in his physical movements. Id. at 

___, 138 S Ct at 2219. The Court’s reasoning was similar to 

ours in Hawthorne, in which we cited heavily to Carpenter. 

Compare id. at 2217-220, with Hawthorne, 316 Or App at 

496-98 (deciding the case under Article I, section 9, but citing heavily to Carpenter). The Court expressly limited its 

holding to the particular circumstances, stating that its 

decision was “narrow” and that it was not expressing views 

on matters not before it. Carpenter, 585 US at ___, 138 S Ct 

at 2220.

The present case is materially distinguishable 

from Carpenter on its facts. Carpenter involved surreptitious tracking of a person’s physical movements at all times 

without their knowledge. By contrast, this case involves 

monitoring of a person’s internet browsing activity on a 

particular network owned by a private business, only while 

the person was on that network, and to which the person 

had access only because he agreed to the terms of a user 

agreement that prohibited illegal activity and warned users 

that the network owner could monitor their activity and 

might cooperate in police investigations of illegal conduct 

on the network. Defendant has not cited any federal case 

law other than Carpenter to support his Fourth Amendment 

argument.

We are unpersuaded that defendant had a reasonable expectation of privacy in his internet browsing activities on A&W’s guest Wi-Fi network and therefore agree with 

the trial court that no “search” occurred for purposes of the 

Fourth Amendment. It follows that the trial court did not 

err in denying defendant’s first motion to suppress.

III. EVIDENCE FOUND IN DEFENDANT’S HOME

In his second assignment of error, defendant contends that the trial court erred in denying his motion to 

suppress evidence obtained from the warranted search of 
Cite as 329 Or App 506 (2023) 523

his home. He argues that the court applied the wrong legal 

standard to determine whether that evidence should be suppressed, after it ruled that the Kismet information included 

in the warrant application was unlawfully obtained.

It is undisputed that the trial court applied the standard described in State v. Binner, 128 Or App 639, 646, 877 

P2d 642, rev den, 320 Or 325 (1994): “When an application 

includes constitutionally tainted information, the correct 

action is for the magistrate and reviewing court to excise 

from the application all such information and to determine 

whether the remaining information is sufficient to establish 

probable cause.” Defendant maintains that Binner is no longer good law in light of DeJong, a case decided two months 

after defendant’s trial.6 See DeJong, 368 Or at 654 (explaining that, to determine whether a prior illegality requires 

suppression of evidence from a warranted search, the correct 

approach is not to excise the illegally obtained information 

from the warrant application and decide whether probable 

cause still exists; rather, the focus of the inquiry is on “the 

effect that the prior illegality may have had on the authorized search”). The state agrees that Binner’s approach is 

“incomplete” in light of DeJong.

DeJong implicitly overruled Binner. See State v. 

Yaeger, 321 Or App 543, 548, 517 P3d 1029 (2022), rev den, 

371 Or 477 (2023) (concluding that DeJong implicitly overruled State v. Gardner, 263 Or App 309, 327 P3d 1169, 

rev den, 356 Or 400 (2014)); Gardner, 263 Or App at 313 

(stating that when a warrant “application includes constitutionally tainted information, the proper remedy is for the 

reviewing court to excise all the tainted information from 

the application and determine whether the remaining information in the affidavit is sufficient to establish probable 

cause,” citing State v. Hitesman/Page, 113 Or App 356, 359, 

833 P2d 306, rev den, 314 Or 574 (1992)); Binner, 128 Or App 

at 646 (also relying on Hitesman/Page as authority for the 

same procedure described in Gardner).

We therefore agree with the parties that the trial 

court erred in applying Binner to determine whether the 

6 On appeal, we apply the current law, not the law in effect at the time that 

the trial court ruled. State v. Cannon, 328 Or App 29, 41-43, 537 P3d 182 (2023).
524 State v. De Witt Simons

evidence from the warranted search of defendant’s home 

should be suppressed in light of the inclusion of unlawfully 

obtained Kismet information in the affidavit.7

As for the remedy, we agree with the state that the 

proper course is to remand for the trial court to reconsider 

defendant’s second motion under DeJong. Under DeJong, 

368 Or at 642, “the defendant has the initial burden to 

establish a minimal factual nexus between the illegality 

and the challenged evidence,” and “[i]f the defendant does 

so, the burden shifts to the state to establish that the challenged evidence was untainted by the illegality.” The state 

does not dispute that the evidence is sufficient for defendant 

to meet his initial burden. Defendant contests that the evidence is sufficient for the state to meet its burden; he argues 

that the record fails “to show that police could and would 

have secured a warrant without the [Kismet] information.” 

Having reviewed the record, however, we agree with the 

state that remand is appropriate. See DeJong, 368 Or at 657, 

659 (where the evidence is legally sufficient to allow a ruling 

in the state’s favor, the case should be remanded to the trial 

court to make findings and conclusions under the correct 

legal standard). Accordingly, we reverse and remand for the 

court to reconsider its ruling on the second motion, applying DeJong, including making factual findings relevant to 

whether the warranted search was tainted by the unlawful 

Kismet information.

IV. CONCLUSION

In sum, we affirm the trial court’s denial of defendant’s first motion to suppress, because, under the circumstances, defendant did not have a constitutionally protected 

privacy interest in his internet browsing history on A&W’s 

guest Wi-Fi network. However, we reverse and remand on 

defendant’s second motion to suppress, because the trial 

court applied the wrong legal standard after concluding that 

some information in the warrant application was unlawfully 

7 We treat the second claim of error as preserved. We disagree with defendant that preservation is excused because the law changed after trial, see State v. 

Horton, 327 Or App 256, 258-61, 535 P3d 338 (2023), but we agree with the state 

that the purposes of preservation were adequately served under the particular 

circumstances.
Cite as 329 Or App 506 (2023) 525

obtained. The trial court is to reconsider the second motion 

under the DeJong standard.

Reversed and remanded.