# Unreasonable search? **URL:** \ **Category:** Great Debates\ **Created:** [February 20, 2001, 2:22pm UTC](https://boards.straightdope.com/t/unreasonable-search/55209 "2001-02-20T14:22:23Z")\ **Posts on this page:** 15\ **Page:** 3
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [February 21, 2001, 4:18am UTC](https://boards.straightdope.com/t/unreasonable-search/55209/41 "2001-02-21T04:18:09Z")
Cutting edge jurisdiction that it is, my state has already tackled this issue. Our Supreme Court decided that thermal scanning _did_ invade the privacy of homeowners (albeit under this jurisdiction’s very broad right to privacy, which might not apply elsewhere); that thermal scanning could not be done without _first_ obtaining a warrant (with all the requirements of probably cause appurtenant thereto); and that warrantless thermal scanning would be struck down unless the State could provide a compelling state interest _other than_ law enforcement (which isn’t compelling enough). (_State v. Siegal_, 934 P.2d 176 (Mont.1997). I think that was the correct decision, and my prediction – place your bets! – is that the U.S. Supremes will decide similarly. ARL – > [@](#): > > To obtain a “sneak and peek” warrant one needs nothing but suspicion. One does not need to notify the person being searched, among other “niceties.” This is incorrect. A sneak and peek warrant requires the same _particularized_ suspicion as other types of surveillance warrants. And the person being searched must generally be notified of the search within seven days, absent compelling reason to delay notification (like the fact that notification would compromise an on-going investigation). > [@](#): > > Typically, when a warrant is issued it follows certain guidelines. Guidelines like time, place, reason, etc. A “sneak and peek” warrant requires far, far less. That’s because a sneak and peek is not a search warrant; it is a surveillance warrant. Like the kind you get to bug someone’s phone. It is not subject to the same standards as a search warrant. > [@](#): > > Perhaps we have differing views on personal privacy, but if you consider that a warrant then I’ll stand down. First, it obviously _is_ a warrant; the question is whether it’s a justifiable one. Second, how do you feel about wiretaps? How do you think they place those? > [@](#): > > You’ll note in the article that “sneak and peak” warrants involve the judge or other issuing force simply scratching out the lines which don’t apply to the sneak and peak case. This is nothing unusual, and does not in and of itself raise any red flags. Search warrant forms may be converted to surveillance warrant forms merely by scratching out the parts not applicable to surveillance warrants. The fact that they are not retyped on a separate sheet means nothing; certainly it does not mean that sneak and peeks are easily or routinely granted. In fact, they are severely frowned upon, as you yourself noted. > [@](#): > > I thought line-item veto-like activities weren’t constitutional? Um, you do realize that the line-item veto and the tailoring of a form to a particular purpose by red-lining it are not comparable, right? > [@](#): > > Sneak and peak warrants rape the 4th amendment. Um, right. :rolleyes: ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [February 21, 2001, 4:21am UTC](https://boards.straightdope.com/t/unreasonable-search/55209/42 "2001-02-21T04:21:46Z")
I said: > [@](#): > > That’s because a sneak and peek is not a search warrant; it is a surveillance warrant. I should clarify that a sneak and peek _is_ a species of search warrant; it is not, however, a search-and-seizure warrant that would allow for the confiscation of evidence. In fact, sneak and peeks specifically prohibit the officer from so much as touching, much less removing, anything. That is the distinction I was trying to draw. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [February 21, 2001, 6:18am UTC](https://boards.straightdope.com/t/unreasonable-search/55209/43 "2001-02-21T06:18:08Z")
Well, I officially retract my statment that it isn’t a warrant. Clearly it is. That was just a dumb thing to post. > [@](#): > > _Originally Posted by the Constitution_ > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Not being schooled in the greatest of legal schools :rolleyes: , case law, I am unclear as to what exactly “reasonable” includes. But, I maintain my opinion that if you can’t get a regular warrant, you probably are being a bit unreasonable. Phone taps: they are, as well, bs. I don’t want to protect criminals, but I don’t feel that any means necessary is the way to go about it. It seems to me to be a play between the technology criminals are using to avoid capture and the technology our police force is able to use to counter this and continue to detect criminal activity. My reasons for distrusting this sort of reactionary measure is a bit of a hijack, however, so I’ll leave out from here. ---
**Author:** ![Bobort](https://avatars.discourse-cdn.com/v4/letter/b/ac8455/32.png) [@Bobort](https://boards.straightdope.com/u/Bobort)\ **Post date:** [February 21, 2001, 7:11am UTC](https://boards.straightdope.com/t/unreasonable-search/55209/44 "2001-02-21T07:11:42Z")
> [@](#): > > \*Originally posted by Mr. Cynical \* > \*\*Searching a house based upon an heat signature is akin to searching a house based upon the color it is painted. > > Why? In the case of the former, the authorities are using a device to optically percieve the Infrared (most likely, anyway) radiation being transmitted; one of the the _invisible_ portions of the electromagnetic spectrum. In the latter, you are optically perceiving the reflection of a certain portion of the _visible_ electromagnetic spectrum, or conversely, the absorption of the remainder of the visible. > > Either way, they’re judging a location based upon what it looks like.\*\* What about [Van Eck radiation](http://www.jya.com/emr.pdf)? Digital electronics, computer monitors in particular, send out radio waves that can be picked up _passively_ and used to reconstruct their internal state. In other words, somebody can “listen” to the radio frequency signals coming from your house and see what’s on your computer screen. There’s a government standard called TEMPEST for shielding electronics to prevent this (you can read some of the Navy’s verbiage on it [here](http://www.cs.nps.navy.mil/curricula/tracks/security/AISGuide/navch16.txt)). However I’m not aware of any place you can go and buy a TEMPEST-certified computer for yourself. I think it would clearly be a gross violation of privacy if law enforcement were allowed to use this type of surveillance without a warrant. But there’s no significant physical difference between this and looking at infrared emissions–both are just an analysis of your home’s electromagnetic output. So I think “just looking” is an insufficient test of privacy violation. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [February 21, 2001, 7:12am UTC](https://boards.straightdope.com/t/unreasonable-search/55209/45 "2001-02-21T07:12:41Z")
I’m gonna have to read more about this case, but to me, the interesting thing is whether a national guard soldier would be considered an law enforcement officer engaging in an unreasonable search, or simply a Joe Average citizen with a cool toy who then informed the authorities of what he saw, in which case 4th Amendment rights wouldn’t be violated. (Private citizens, so long as they aren’t acting at the direction of the police, can “search”, etc.) As a general rule, under _posse comitatus_ the military cannot enforce the domestic laws of the U.S. Sua ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [February 21, 2001, 2:58pm UTC](https://boards.straightdope.com/t/unreasonable-search/55209/46 "2001-02-21T14:58:32Z")
> [@](#): > > \*Originally posted by aynrandlover \* > I am unclear as to what exactly “reasonable” includes [w/r/t/ the Fourth Amendment and “unreasonable” search and seizure]. But, I maintain my opinion that if you can’t get a regular warrant, you probably are being a bit unreasonable. That’s certainly a “reasonable” position to take. 🙂 Unfortunately, from my perspective, the Supreme Court has taken a very narrow view of when warrantless searches are unreasonable. Searches of homes and businesses nearly always require a search warrant, but searches in other places (esp. automobiles) generally require only “probable cause.” And that is about as tiny a nutshell as I can possibly put it in. Fascinating subject, though. ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [February 21, 2001, 3:05pm UTC](https://boards.straightdope.com/t/unreasonable-search/55209/47 "2001-02-21T15:05:43Z")
according to [This](http://www.cnn.com/2001/LAW/02/20/scotus.heatdetector.01.ap/index.html), the man on trial wasn’t the original target of the investigation. The dwelling was a 3 or 4 apartment unit, one of his neighbors was the target, they did the heat imaging on the building and noted that the defendant had unusually high readings for a wall and ceiling. Good thing I have no neighbors. ---
**Author:** ![beagledave](https://avatars.discourse-cdn.com/v4/letter/b/6de8d8/32.png) [@beagledave](https://boards.straightdope.com/u/beagledave)\ **Post date:** [February 21, 2001, 4:14pm UTC](https://boards.straightdope.com/t/unreasonable-search/55209/48 "2001-02-21T16:14:46Z")
This whole intersecton of technology vs privacy rights is quite interesting to me. NPR had another story a few months ago about a new flashlight device. Incorporated in the flashlight unit is a breath analyzer that provides an analysis of the blood alcohol level of (supposedly) the driver. I found a link at CNN [http://www.cnn.com/TECH/computing/9906/16/driving.while.illuminated.tt/](http://www.cnn.com/TECH/computing/9906/16/driving.while.illuminated.tt/) and an analysis at the Christian Science Monitor [http://www.csmonitor.com/durable/2000/08/23/p2s1.htm](http://www.csmonitor.com/durable/2000/08/23/p2s1.htm) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 21, 2001, 4:41pm UTC](https://boards.straightdope.com/t/unreasonable-search/55209/49 "2001-02-21T16:41:43Z")
> [@](#): > > \*Originally posted by minty green \* > That’s certainly a “reasonable” position to take. 🙂 Unfortunately, from my perspective, the Supreme Court has taken a very narrow view of when warrantless searches are unreasonable. Searches of homes and businesses nearly always require a search warrant, but searches in other places (esp. automobiles) generally require only “probable cause.” And that is about as tiny a nutshell as I can possibly put it in. Fascinating subject, though. Just for the sake of discussion, though, I would point out that all warrantless searches are presumptively unreasonable, and it falls to the state to justify a particular warrantless search under one of the recognized exceptions to the warrant requirement. Admittedly, it’s depressingly easy to do this, given the plethora of well-recognized exceptions. - Rick ---
**Author:** ![Mr.Cynical](https://avatars.discourse-cdn.com/v4/letter/m/ee59a6/32.png) [@Mr.Cynical](https://boards.straightdope.com/u/Mr.Cynical)\ **Post date:** [February 21, 2001, 5:23pm UTC](https://boards.straightdope.com/t/unreasonable-search/55209/50 "2001-02-21T17:23:43Z")
> [@](#): > > \*Originally posted by Bobort \* > \*\*What about [Van Eck radiation](http://www.jya.com/emr.pdf) > > {snip} > > I think it would clearly be a gross violation of privacy if law enforcement were allowed to use this type of surveillance without a warrant. But there’s no significant physical difference between this and looking at infrared emissions–both are just an analysis of your home’s electromagnetic output. So I think “just looking” is an insufficient test of privacy violation. \*\* I agree you right up to the point where you lose me at the end. By “an insufficient test of privacy violation”, what do you mean? Please bear in mind that I dropped out of skool in 8th grade and ain’t smart none too much at the reading. ---
**Author:** ![jmullaney](https://avatars.discourse-cdn.com/v4/letter/j/85e7bf/32.png) [@jmullaney](https://boards.straightdope.com/u/jmullaney)\ **Post date:** [February 22, 2001, 6:19pm UTC](https://boards.straightdope.com/t/unreasonable-search/55209/51 "2001-02-22T18:19:57Z")
[Slate has a sometimes funny article](http://slate.msn.com/court/entries/01-02-20_101221.asp) about the oral arguments. ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [June 11, 2001, 4:54pm UTC](https://boards.straightdope.com/t/unreasonable-search/55209/52 "2001-06-11T16:54:03Z")
[SCOTUS](http://www.cnn.com/2001/LAW/06/11/scotus.heatdetector.ap/index.html) says ‘nah, ya need a warrant’ ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 11, 2001, 5:16pm UTC](https://boards.straightdope.com/t/unreasonable-search/55209/53 "2001-06-11T17:16:03Z")
:eek: I’ll try to comment on the opinion later. But for now, I just want to say that Scalia-Thomas-Souter-Ginsburg-Breyer vs. Stevens-Rehnquist-O’Connor-Kennedy is about the weirdest 5-4 vote split in the history of the Supreme Court. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [June 11, 2001, 6:12pm UTC](https://boards.straightdope.com/t/unreasonable-search/55209/54 "2001-06-11T18:12:09Z")
Caught this thread on the bump because of the final opinion. Who would’ve thunk it? **SuaSponte** > [@](#): > > the interesting thing is whether a national guard soldier would be considered an law enforcement officer engaging in an unreasonable search… > \ > As a general rule, under posse comitatus the military cannot enforce the domestic laws of the U.S. Huh? From [LawOffice.com](http://LawOffice.com): [Posse Comitatus Act](http://www.lawoffice.com/portal/index.jsp?pageID=consumer1&nav=Home&subnav=null&dcp=blacks_definition.jsp&load=false&path=%5Cwww%5CDictionary%5CDictionary12%5CBLD22893_I2D0AC07D22614D8782C46DDF05C6DA5B.xml) A federal law that, with a few exceptions, prohibits the Army or Air Force from directly participating in civilian law-enforcement operations, as by making arrests, conducting searches, or seizing evidence. · The Act was originally enacted in 1878. It does not usu. apply to members of the Navy, the **National Guard** , or the Coast Guard. 18 USCA § 1385. –emphasis added– ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 12, 2001, 2:39pm UTC](https://boards.straightdope.com/t/unreasonable-search/55209/55 "2001-06-12T14:39:47Z")
Well, as expected from the history of the case (remanded once by the Ninth Circuit, a later Ninth Circuit decision withdrawn and replaced by another decision from a differently composed panel split 2-1 the other way, etc.), this is a close decision. But the petitioners were smart, appealing to Justices Scalia and Thomas by talking about the sanctity of the home, forcing those two to decide the case on the basis of their very conservative “original intent” philosophy. It’s no surprise that Kennedy and O’Connor would go the way they did. Both of them find no difficulty in deciding each case on the basis of the individual facts rather than on the basis of grand sweeping principles of law. And Rhenquist, with his general willingness to give in to law enforcement needs is no surprise. But I have to admit that Justice Stevens seems to have had the wool pulled over his eyes a bit. His bland assertion that the use of the thermal imager is no different than noticing that the snow melted more on one side of the house than the other seems to indicate his failure to truly understand what the imager does, let alone grasp the potential for its future development. Probably, he doesn’t really know what the imager actually shows (he likely doesn’t realize, for example, that a heat source placed on or near a wall will show up quite easily even on the relatively crude device used). I think he thinks the whole wall and roof just kinda showed hot. The scariest part of the dissent is the failure to draw the distinction between imaging a building to see how hot the walls are (which is what the imager REALLY does) and testing the air outside the building to see if it contains particulate emissions. If the justices in the minority can’t make THAT basic distinction in use of technology, what faith can we have they will understand the nuances of technology in other issues before them, such as patent questions, anti-trust issues, etc. Hell even my kid knows the difference between smelling the air from the street and feeling the wall with your hand! And the stupidest part of all this is that all that is in issue here is whether the police should be forced to get a warrant BEFORE using the imager. The opinion makes it clear that they had power bills as evidence to support the eventual interior search warrant. It seems to me perfectly reasonable that the police could have obtained a warrant for use of the thermal imager based on the power consumption figures (public records, so no privacy issue there) and the tips from informants. So ask yourself: is it really important to allow police to use thermal imagers in the absence of sufficient other data that would allow someone to conclude it reasonable to use one in a specific instance?? Thank goodness Scalia and Thomas saw the light (so to speak). 😉 [Previous page](https://boards.straightdope.com/t/unreasonable-search/55209.md?page=2)