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McClelland v. State

Florida Court of Appeals, Second District

June 20, 2018

DARYL J. McCLELLAND, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Polk County; John K. Stargel, Judge.

          Howard L. Dimmig, II, Public Defender, and Anthony W. Surber, Special Assistant Public Defender, Bartow, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.

          MORRIS, Judge.

         Daryl J. McClelland appeals his judgment and sentences for two counts of sexual battery on a person under twelve, six counts of lewd molestation, battery on a child by throwing fluids or liquids, sixty counts of possession of child pornography, and an offense against computer users. He argues that his Fourth Amendment rights were violated when an officer used a Yagi[1] antenna to locate and identify signals emanating from his computer which was located inside his motorhome. Because we conclude that he lacked a subjective expectation of privacy that society is willing to recognize as reasonable, we affirm.

         I. Background

         Detectives from the Polk County Sheriff's Office were conducting an investigation regarding individuals who were downloading child pornography. That investigation led to the search of a house that was associated with an IP (internet protocol) address that had been identified as sharing child pornography. During the search, the detectives discovered that the residence had a Wi-Fi router that utilized radio signals which allowed Wi-Fi-enabled devices to connect to it to access the internet. All of the devices within that residence were searched, and the detectives determined that none of them had been used to download or share child pornography. The detectives learned that the Wi-Fi network at the residence was not encrypted with a password and thus any Wi-Fi-enabled device within range of the router could access the Wi-Fi network. The homeowner verified that he had not given permission to access the Wi-Fi network to anyone other than those persons residing within his own household. The detectives interviewed several nearby neighbors and determined that none of them were responsible for accessing the subject Wi-Fi network.

          The homeowner gave the detectives permission to set up a computer in his home that would allow the detectives to remotely access and monitor his Wi-Fi network. While monitoring the network, the detectives were able to determine the local IP address and MAC address (an address that is assigned to a particular Wi-Fi-enabled device by the manufacturer) of the device that had been accessing the subject Wi-Fi network and downloading and sharing the child pornography.

         The detectives then utilized the Yagi antenna from outside the residence to determine where the signal that was broadcasting the MAC address was physically located. The detectives pointed the antenna in different directions and followed the signal strength. By doing so, they determined that the MAC address in question was located inside McClelland's motorhome which was parked near the residence. While performing the signal strength test, the detectives did not enter onto McClelland's property. Once the detectives determined that the signal was emanating from within McClelland's motorhome, they obtained a search warrant. During a search of the motorhome, images of child pornography were located on McClelland's computer, and McClelland made several statements and admissions.

         McClelland moved to suppress all evidence of the child pornography found on his computer as well as any statements or admissions he made. He argued that the evidence was fruit of the poisonous tree because it was obtained as a result of illegal police activity: specifically, the use of the Yagi antenna to intercept the signal emanating from his computer. In response, the State filed a motion to strike McClelland's suppression motion, arguing that McClelland did not have standing to argue a Fourth Amendment violation because he did not have a legitimate expectation of privacy since he had been illegally accessing the homeowner's Wi-Fi network.

         At the suppression hearing, defense counsel argued, in relevant part, that the Yagi antenna constituted an enhanced technology which breached the expectation of privacy that McClelland had within his motorhome. The State argued that McClelland essentially stole use of the Wi-Fi network since he had not been given permission to access it by the homeowner. The State also argued that the detectives had not unlawfully reached into McClelland's motorhome because they were merely capturing the signals that were emanating from McClelland's computer outside of his motorhome and, therefore, that he had no expectation of privacy in such signals.

         The trial court denied the suppression motion, concluding in relevant part that McClelland did not have a legitimate expectation of privacy because he was broadcasting wireless signals outside of the motorhome in order to access the Wi-Fi network belonging to someone else. The trial court concluded that by broadcasting the signal, McClelland was essentially turning the information over to third parties and, consequently, that McClelland had no subjective expectation of privacy. The trial court also found that any expectation of privacy here was not one that society would be willing to recognize as reasonable. Finally, the trial court concluded that the detectives' use of the Yagi antenna was lawful because McClelland was accessing a third-party's wireless network, because the antenna was in general public use and widely available, [2] and because McClelland himself used a similar technology in order to access the network.

          McClelland ultimately entered an open plea to the charges, specifically reserving his right to appeal the suppression motion. The trial court adjudicated him guilty and sentenced him to consecutive life sentences for the sexual battery and lewd molestation charges, separate terms of fifteen years in prison for counts 9-20 and 21-66 of the child pornography charges (concurrent with the life sentences but consecutive to each other), five years in prison for the battery on a child and offense against computer users charges (concurrent with each other but consecutive to the child ...


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