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Doppler Radar Used By Police To Determine Home Occupancy
schwit1 sends an article by Orin Kerr about a court case where a judge has had to weigh Fourth Amendment protections against law enforcement's ability to use a Doppler radar device to tell whether people are present within a home. Kerr writes:
If the government has the burden of proving reasonable suspicion, should the court treat the absence of information in the record on this point as not changing its otherwise-reached view that there is reasonable suspicion (as it does), or should that be treated as a potentially serious deficiency in getting to reasonable suspicion that the government has to overcome?
I’m not sure of the answer. We don’t normally encounter this question because we normally understand the uses and limits of investigatory tools. If the officer looked through the window and didn’t see any other people, for example, we could intuitively factor that into the reasonable suspicion inquiry without having to think about burdens of proof. I’m less sure what we’re supposed to do when the government use a suspicion-testing technological device with unknown capabilities."
The judge in the court case wrote, "New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights (PDF). ... Unlawful searches can give rise not only to civil claims but may require the suppression of evidence in criminal proceedings. We have little doubt that the radar device deployed here will soon generate many questions for this court and others along both of these axes."
This technology is here now and is similar to the earlier use of thermal imaging cameras, except it works better. If radars can detect breathing of people trapped in rubble, then they can certainly detect breathing of someone on the other side of a door, or in a house across the street.
I think what the judge is getting at here is whether that is a "search" in the 4th amendment sense. Is the probable cause standard for "a specific person" or "anyone". In the cited case, they were looking for a fugitive, in a house associated with the fugitive (e.g. the bad guy had paid for electrical service) at a time when the guy was expected to be there. That stuff alone is enough to provide probable cause.
But they also used the radar from outside. And that's what the judge wasn't sure about.
What he said was that the police had enough grounds to believe the person was at home to enter. So _if_ evidence by the use of the Doppler radar was unlawful, it didn't matter, because the police had enough evidence without that.
Interestingly, the police searched the home because they believed there might be other people and weapons present (they did find weapons), while the doppler radar only spotted one person. Here the judge decided that as far as he knew, the doppler radar was not enough evidence that there only was one person. If the doppler radar worked better, then the police could _know_ that there is one and only one person, and wouldn't be allowed to do a search in case there is someone else dangerous in the house, but that wasn't the case.
You knock on the door to search the place. Those inside stay quiet and refuse to admit their presence. The frequency of the dopple radar is such that it penetrates the walls and is reflected by the salt water bags(people) keeping quiet - but their hearts beat and they breathe. Motions of chest walls create a detectable shift in frequency = people present, but refusing to answer the door = allowed to force entry to execute the search warrant.
Just need to know if that baby crib is occupied or not. No sense dropping a flashbang into an empty room.
Why bother? They got away with it, zero cost to them or their employer.
So long as the radar isn't being used to justify the reasonable suspicion the suspect is present needed to enter the home to serve an arrest warrant, which would constitute a search in and of itself, I don't see the problem. And note, this is only talking about using this as a tool to serve arrest warrants. They're not suggesting driving down the street and randomly scanning everybody's home. That's already out by...I can't remember the case name. The one with the infrared cameras on helicopters to find grow operations. But as a precautionary measure to help assess the number and location of occupants to a home they already have a valid warrant to search? That's fine. Makes things safer for everyone involved.
To have a valid warrant, the state needs probable cause to believe the things or persons for which they are searching are in the home. For a search warrant, a sworn witness who will say "I saw Connie_Lingus carrying the stolen TVs into the garage." For an arrest warrant, an officer staking out the home who can swear "I saw him enter the premises." But once they've got that, they're going to enter anyway.
Today, because they're scared of the gun-toting, meth crazed baddies ready to shoot it out with them, they bust down your door with overwhelming force and throw a flash bang in your baby's crib. But if they use the radar to scan the house first and see there's only one guy home sleeping in the back bedroom (plus the baby in the front), maybe they won't be so grenade-happy. Certainly it would help outrage people more (and they should already be outraged. Why they're not I don't know) to hear, "wait, they threw the grenade in the room even though they already knew there was nothing in there but a sleeping baby because of the radar?! Outrageous!"
But the really interesting question is, "does the use of the radar override the reasonable suspicion of danger which authorizes a defensive sweep of the house?" Really, the judge was asking if this should limit the search powers of the police. Right now when the police enter your home to serve a warrant they need to perform a quick sweep to make sure there isn't somebody else hiding in the back room with a gun. That's a reasonable suspicion of danger, so the police quickly scan through the house. They're not allowed to go tossing your sock drawer (unless their warrant authorizes them to toss your sock drawer) because there's little chance a baddie is hiding there. Unless he's very, very tiny...
Thing is, if during the defensive sweep, they spot evidence of a crime in one of the back rooms, they can seize that, even if it has nothing to do with the crime they're investigating. This is reasonable. They're authorized to be there, and it's in obvious sight in the room (plain view from the first few feet in the doorway. Not the sock drawer). Think bloody knife on the bed, the bodies of the toddlers you've been murdering...or your bag of weed on your night stand.
Question is, if the radar eliminates the reasonable suspicion there's somebody else hiding in the house, then performing the defensive sweep in addition to the radar sweep would be unreasonable, and so the toddler corpses would be inadmissible. And what the judge is saying is the radar isn't good enough to dispel that reasonable suspicion. Maybe one day it will be, but not yet.
It still is a better situation. If the cops are going to enter the home anyway, the more forewarning they have about the location and numbers of occupants the less likely (and certainly less justifiable) excessive use of force will be.
We don't have a state-run media we have a media-run state.
This is nothing new. Just because a new technologies exist does not mean we need to redefine our rights to explicitly deal with it.
Peaking in the windows of a home, using a drug dog to sniff around a house, using thermal imaging to inspect the contents of a home, using radar/x-ray vision/telekinetics/etc. to search inside of a home are ALL considered searches and should all require probable cause and a search warrant under the 4th Amendment.
[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home...The [Fourth] Amendment reflects the recognition of the Framers that certain enclaves should be free from arbitrary government interference. - http://en.wikipedia.org/wiki/O...
Homeowners possess a privacy interest that extends inside their homes and in the curtilage immediately surrounding the outside of their homes, but not in the "open fields" and "wooded areas" extending beyond the curtilage (see Hester v. United States, 265 U.S. 57 [1924]). - http://criminal.findlaw.com/cr...
Florida v. Jardines, 569 U.S. ___ (2013), is a decision by the United States Supreme Court which held that police use of a trained detection dog to sniff for narcotics on the front porch of a private home is a "search" within the meaning of the Fourth Amendment to the United States Constitution, and therefore, without consent, requires both probable cause and a search warrant. - http://en.wikipedia.org/wiki/F...
Kyllo v. United States, 533 U.S. 27 (2001), held that the use of a thermal imaging, or FLIR, device from a public vantage point to monitor the radiation of heat from a person's home was a "search" within the meaning of the Fourth Amendment, and thus required a warrant. - http://en.wikipedia.org/wiki/K...
Typical radiated power for through the wall radar is 10 milliwatts, and usually around 1 mW. That's apparently enough to penetrate 30 feet of concrete and rebar rubble
http://newsfeed.time.com/2013/09/26/nasas-new-heartbeat-sensor-could-save-lives/
A back of the envelope says you got more exposure from your WiFi when you entered your comment than you'd get from these things.
The operator of the radar will get a lot more cumulative exposure than the persons being watched, and I would imagine that the manufacturer would have thought about that.
"And to address a following point that may get raised; electric meters are sometimes used as evidence of what is happening inside a house. I think that also violates the intent of the 4th."
In actuality, they don't do it that way for constitutional reasons and for safety of electrical workers. The power company (in California, anyway) does not tell law enforcement about abnormally high electricity consumption, because PG&E and SCE don't want bad guys with guns (in general) thinking that utility workers (in general) are on the "other side". There are also plenty of constitutional restrictions against "dragnet" type sweeps (e.g. getting all utility data for a given area).
What they do is develop probable cause (e.g. neighbor complaints about the smell of the grow operation), do a regular old street surveillance operation (e.g. appearance of house is inconsistent with number of people coming and going, and not simply accounted for by "they're on vacation and their lights are on timers) to develop more probable cause.
But that would only get you a "knock and ask" warrant, and if the person wasn't in the house, or hid, then they'd have to go back later.
Then, they go to the utility and ask them for *specific data* for that house. Then, since grow ops consume a lot of power, they often bypass the meter (felony theft of service), which the utility really cares a lot about. With modern meters, they can turn the meter off for a half cycle, and if there's voltage on the load side of the switch, and the house doesn't have solar panels (with a plausible broken anti-backfeed), they NOW have real good probable cause to enter the house for
a) theft of service
b) potential hazard to utility workers (backfeeding of power)
So now it's easy to get a no-knock warrant for entry.
Once they're inside, Oh my... look at that, a grow operation. And though it is not what they entered for, it is not "fruit of the poisoned tree" because they have already got probable cause from their surveillance. They essentially serve two warrants at once.