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Software tracks computer, leads to arrest — but did agents go too far?

The Federal Bureau of Investigation (FBI) and other federal agencies have pushed the limits of the law, testing to see how far they can go before the courts reign them back in. The use of technological advances present in recent years provides an example. Enforcement officers have experimented with phones, tracking devices, satellite technology and even smart home products to gather evidence to support criminal charges. In some cases, challenges to these methods result in the court throwing out the evidence. In others, their tactics stand.

In the most recent example, the FBI decided to use a wireless tracking program to determine the location of a wireless device suspected of downloading illegal files. The agency justified use of the program due to the suspicion of criminal activity. Once this program provided an address, the FBI was able to obtain a search warrant.

Upon searching the unit, the agents gathered evidence to show the residents within the unit were not downloading or sharing illegal material. Instead, the agents believed someone else was using the wireless network for this criminal activity. To determine the source, the agents used another program. The Moocherhunter software, along with a wireless antenna, were able to locate a connection from a neighboring apartment. This information was used to request a search warrant for the neighboring apartment. Based on these findings, the agents were able to gather to enter the neighboring apartment and gather evidence to support criminal charges.

The accused argued the use of Moocherhunter software was a violation of his 4th Amendment protection against unreasonable search and seizure. The court analyzed his argument based on the following:

  • Physical intrusion. The first portion of the court's analysis involved a discussion of whether or not the agents physically intruded upon the accused's property. Since they were not physically near the apartment, the court ruled in favor of the agents.
  • Katz test. Next, the court applied the test developed by the Supreme Court of the United States (SCOTUS) in Katz v. United States. In that case, SCOTUS essentially held an intrusion is present if the individual had a reasonable expectation of privacy. The court held that the accused did not have a reasonable expectation of privacy due to the unauthorized use of a neighbor's router.

Ultimately, the court allowed the FBI's tactics to stand.

Should the accused still fight against criminal charges?

In short, yes. Although this case went in favor of the agents, others have successfully used the legal system to fight back against enforcement officers that pushed the bounds of the law too far. Act to protect your interests if you are facing criminal charges and are concerned the officers used illegal or questionable methods to gather evidence. An attorney experienced in criminal defense strategies can review your case and discuss your options.