State v. De Witt Simons

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 down-
loading 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 custom-
ers, 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 constitution-
ally protected privacy interest under the circumstances, so
no “search” occurred. Second, with respect to a later war-
ranted 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 rem-
edy 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 sup-
press 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 stan-
dard of review.
In 2018, the A&W restaurant in Oakridge provided
free Wi-Fi for its customers. A&W did not require a pass-
word, 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 noti-
fied 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 vio-
late 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 commu-
nications 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 sig-
nal 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 ver-
sion to get that feature.
510 State v. De Witt Simons

On July 2, 2018, while performing routine main-
tenance, 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 some-
one 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 net-
work, which happened frequently during that time period.
Sanders sent Larsen the firewall logs, as well as spread-
sheets 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 defen-
dant 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 war-
rantless 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 unlaw-
ful search. The state opposed both motions.1 On the second
motion, the state argued that, even if the Kismet informa-
tion 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 dis-
covery” doctrine applied.
The court held a hearing on defendant’s motions to
suppress, during which Sanders, Weaver, and Larsen testi-
fied, and the A&W user agreement was admitted into evi-
dence. 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 defen-
dant 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 unlaw-
ful 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 applica-
tion 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 vio-
late 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 dis-
position. 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 sub-
stantive 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 free-
dom 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 behav-
ior, such as trespass laws and conventions against eaves-
dropping. [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 con-
stitutional 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 prac-
tices 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 omit-
ted); 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 particu-
lar context in which the government conduct occurred.”
Meredith, 337 Or at 306. “Whether a constitutionally pro-
tected 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 pro-
tected 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 consti-
tutionally 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 agree-
ment 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 com-
mit 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 free-
dom 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 rel-
atively 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 infor-
mation 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 princi-
ples 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 pur-
poses 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 per-
son has “the right to be free from the government’s surrepti-
tious use of a transmitter to monitor a person’s location and
movements under any circumstances.” Id. at 304 (empha-
sis 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 circumstance-
specific 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 pri-
vacy interest in keeping her location and work-related activ-
ities 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 fol-
lows, 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’ defen-
dant’s phone’s location to help locate the fleeing suspect.” Id.
The service provider did so and gave the police the result-
ing 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 technol-
ogy 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 move-
ments 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 per-
son 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 track-
ing 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 over-
sight, such clandestine, technological intervention would
be susceptible to abuse. Mindful of Campbell, we conclude
that pinging defendant’s phone to reveal its real-time loca-
tion 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 ser-
vice provider was “not equivalent to the employment rela-
tionship 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, defen-
dant 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 net-
works 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 poten-
tial to surreptitiously track people “anytime they access[ ]
the internet via an open Wi-Fi network.”
Whatever concerns may exist about public Wi-Fi net-
works 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 pri-
vacy 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 net-
work, to which he had been granted access only after enter-
ing 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 agree-
ment 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 mate-
rial 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, includ-
ing 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 access-
ing 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 repeat-
edly 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 investigat-
ing 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 hav-
ing a cell phone, having access to private businesses’ guest
Wi-Fi networks, while convenient, is not “ ‘necessary for par-
ticipation 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 inter-
net 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 unrea-
sonable 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 expec-
tation 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 quota-
tion 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 individ-
ual’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 expec-
tation of privacy in his internet browsing history. He rec-
ognizes that, while “reasonable expectation of privacy” is a
different formulation than the standard under Article I, sec-
tion 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 consti-
tuted a “search” because it invaded the defendant’s reason-
able 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 cit-
ing 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 surrepti-
tious 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 reason-
able expectation of privacy in his internet browsing activi-
ties 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 con-
tends 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 sup-
pressed, after it ruled that the Kismet information included
in the warrant application was unlawfully obtained.
It is undisputed that the trial court applied the stan-
dard 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 lon-
ger good law in light of DeJong, a case decided two months
after defendant’s trial.6 See DeJong, 368 Or at 654 (explain-
ing 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 autho-
rized 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 over-
ruled 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 consti-
tutionally tainted information, the proper remedy is for the
reviewing court to excise all the tainted information from
the application and determine whether the remaining infor-
mation 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 chal-
lenged 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 evi-
dence 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, apply-
ing 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 defen-
dant’s first motion to suppress, because, under the circum-
stances, 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 defen-
dant 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.