I too retract my earlier post, on the basis of the update to the technological capabilities. No big deal, either for private citizens or cops.
I disagree with the idea that it’s like the trash put at the side of the curb.
Trash at the side of the curb is stuff I have decided to throw away. I have zero control over the heat emiting from anything in my home. In addition, trash at the side of the curb is also ‘within plain view’. Heat eminating isn’t, without the use of high tech equipment.
In reading further into this case, it seems to me that they (cops) had some info regarding this person, some specific suspicion. and perhaps enough to have gotten a warrant.
However, let’s play with this a bit. Now the officer has the TIU playing it on this guys place - but, as the article describes, the suspect lives in a multiple person dwelling - and we find that the there’s excessive heat eminiating from another person’s unit as well. Should they be allowed to search? I say no.
Milo is correct (I hasten to add ‘in this case’ 
) in that the police already troll for criminal behavior - I just feel whole lots better if the trolling were limited to what is visible outside the walls of my home, thank you.
Playing devil’s advocate here, wring, because I agree with you on this (I hasten to add “Gasp!”):
**
They would argue that your heat emanations are visible outside the walls of your home.
Wildest Bill: The govt has no business looking in on what is going on in people’s homes. They are the govt not GOD. They are suppose to pave the streets, protect us from foreign oppressors, and tax the hell out of us. They are not supposed to look in our homes with the latest tech equip that some geek invents to invade our privacy(something our forefathers really cared about). This crap is WRONG and it should be stopped immediately.
WB, I completely agree with you, and I am very pleased to be able to inform you that a friend-of-the-court brief arguing basically from this standpoint has been filed on behalf of Danny Kyllo—by the National Association of Criminal Defense Lawyers and the American Civil Liberties Union. Here’s the beginning of the summary of the argument taken from a PDF version of that brief:
They go on to argue that this imaging therefore qualifies as a Fourth Amendment search, and present their case accordingly. So congratulations, Bill, on being ranged on the side of liberty and justice this time along with the criminal defense lawyers and ACLU members!
Wring,
Are the cops allowed to rent an apartment down the block and watch your comings and goings with binoculars? Should they be?
Hit return too soon. I should have added why I think that is B.S.
I shouldn’t be subjected to a law enforcement search for drugs because I may have a tanning bed or be into growing legal plants indoors.
Seems to me to be heat-signature “profiling,” just as surely as the cops pulling over that black guy in a white neighborhood, or pulling me over because I’m driving at a time of night when many drunk drivers drive.
Last year, I planted a lot of annuals in my yard and in pots around my house. I started them indoors in flats in a spare bedroom with, you guessed it, grow lamps providing light and heat for them.
By the standard set forth in this case, I should rightly be made subject to random police search because I like to garden. So would have my father, who AFAIK still grows African violets indoors (as do millions of other people in the United States).
I did happen to have a police officer in my house for another reason. He happened to notice my flat of coleus (for the uninformed, coleus is a broad-leaved plant with beautiful tricolored leaves, bearing no substantial relationship in appearance to marijuana at any stage of its growth). He quizzed me rather closely about my plants. I have to wonder if, had I not been able to convince him that these broad-leaved red, pink, and green plants were not marijuana, he would have arrested me and confiscated my plants for testing…
Yea, I know, it’s like being caught in some ugly parallel universe - I mean just look, Wildest Bill agreeing with the ACLU, and talking about suing some manufacturer???
But playing God to your Devils Advocate, I’d correct this:
Originally posted by wring
**originally answered by Milo
**
No, they’re not ‘visible’. They are discernable with the use of certain equipment, but not visible. Consider this: the police may not place an electronic listening device in your home w/o a valid warrant. However, certain electronic devices may allow for some one to listen in from outside. Legal? I would think not. Some one shouting from the house is one thing, sticking the proverbial glass up to the wall another entirely.
Izzy Sure, cops can post themselves where ever and watch me enter and leave my home (they’d be really, really bored in my case, but I digress). What they can’t do without a warrant, is look into my home.
The "similarity’ (at least according to some of the lower courts) has to do with the “expectation of privacy”
http://www.umt.edu/lawinsider/class/huff/ky140.htm
"Those circuits have analogized the excess heat measured by a thermal imager to the excess trash left on the curb, and have asked whether the defendant has manifested a subjective expectation of privacy in the “waste heat” emanating from their homes. Those courts have held, citing California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), that such defendants have failed to manifest a subjective expectation of privacy in the excess heat. See United States v. Robinson, 62 F.3d 1325, 1328-29 (11th Cir.1995); United States v. Myers, 46 F.3d 668, 669-70 (7th Cir.1995); United States v. Pinson, 24 F.3d 1056, 1058 (8th Cir.1994). "
Again , it seems to me that the pivotal issue is the type of info provided by the scan. The dissenting opions in the courts regard the scan as something that yields far more information than just a general notion of the amount of heat .
People use metal halide lamps for serious hydroponics, lettuce and stuff like that.
http://www.77hydro.com/faq.htm
If you’re a serious salt-water aquarium hobbyist and you’re going to try to grow coral and other reef animals in your living room (as opposed to just fish), you need metal halide lamps.
http://www.aquarium-design.com/reef/uvlighting.html
And people with Seasonal Affective Disorder still use them, although they’ve now found that it doesn’t have to be halide lamps–fluorescent lights work just as well, and are cheaper.
http://www.lightsearch.com/reference/sad.html
So they just did a thermal scan at random, happened to find someone with a metal halide lamp, got a search warrant, and got lucky? Knowing police departments, I’d have to guess that they did a little preliminary snooping around first, to make sure they didn’t break down the door and catch Mortimer Snerd red-handed with his acroporas.
So maybe it wasn’t quite as random as the press would have us believe?
From the further links and so on, it seems clear the police had, in fact, targeted the defendant. Although it’d be difficult for them to admit otherwise at this point.
And, frankly from what they had, IMHO, they could have gotten a warrant for something like the image scanner. But, and here’s where I disagree with the courts so far, I don’t think they should have used the thing until they had a warrant.
So, for me, the scene would be: We have information that Magdalene is an avid gardener, but who cares. we have information that Joe Smokes is apparently an avid gardener, and gee, whiz, there sure are a steady stream of folks wandering into his house and leaving after 15 minutes, too, and he doesn’t seem to work for a living, but is driving a fancy car, which is parked by the side of the road, let’s get an image scan of his house to see if there’s a bunch of unreasonable amounts of heat, see the judge, get the warrant for Joe’s house, but not scan ** Magdalenes** house at the same time 'cause they happen to be neighbors and she also has an interest in gardening.
IMHO, given that we have no idea what technology will bring us, the courts need to stop the invasion of privacy at the home. Heat imaging is not visible w/o high tech devices. Therefore a warrant for their use would be necessary (just as phone conversations are not audible outside the home w/o the use of a tap, which requires a warrant)
I agree with your concerns about future technology (hence my slippery slope reference earlier). However, this was not the same as a phone tap (at least legally).
The courts have ruled that people have a “subjective expectation of privacy” in terms of phone usage. In this case the lower court seem to feel (based I guess on the “fuzzy” nature of the data from the scanner) that the there was no “subjective expectation of privacy” for waste heat as revealed by the scanner.
I understand that the courts disagree. I think they’re wrong. My indoor use and selection of appliances is my personal business. They would not have access to the information without intrusion of high tech equipment, which can detect the heat. And, I have no way of changing that (there’s no way to alter the devices so they emit less heat).
Besides, this is detecting heat sources ** within** the confines of my home. So, for example, they’d be able to tell it was a strong heat source in my bedroom vs. my basement. How can this not be a warrantless intrusion of my home?
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.
As far as the possibility of being able to determine exactly what the occupants are up to inside the location, I seriously doubt it. I spent a lot of time doing R&D on advanced IR sensors, and I never saw anything that could permeate walls to create an image. Sure, you might have an entire wall heat up, but that’s not going to tell you if the occupant is doing situps, wrestling a lover, or fighting an octopus.
If, however, you could combine a penetrating radar with the IR image, I think you could come closer to the scenario described. It would likely be powerful enough, however, to warrant health investigations.
So, if you want to keep the heat police off your back, INSULATE.
What I find particularly strange is that a search warrent was issue on the basis of the house being hotter than usual. Hot house = probable cause? Also, isn’t saying that people don’t have a reasonable expectation of privacy circular reasoning? The only reason people wouldn’t have a reasonable expectation of privacy is if the courts allow this.
Actually I don’t think it’s quite the same…here I agree with wring (I think)…this doesn’t fall into the traditional notion of “plain view” (like a helicopter overhead seeing pot plants in the enclosed backyard). The use of the device IS important…
"But Justice Steven Breyer seemed skeptical. He said that bird watchers carry binoculars and Boy Scouts have flashlights, which improve human senses, but “who has a heat thermal device? Nobody, except a few.”
Even so, with the current limitations, it strikes me more along the lines of examing power usage records for a house…general info that does not currently indicate specific human actions in the house, but may lead to probable cause for a later physical search.
I agree with your point of view, beagledave. It makes sense that not too many people would have a true thermal imaging device at their disposal. Still, though, it remains that there’s a judgement call based upon the appearance of the place, correct?
And again, I say : INSULATE. Not only will it protect you from snooping police, but it will lower your energy bill, and make the planet all better, yaddah yaddah yaddah.
[QUOTE]
*Originally posted by beagledave *
**
Not to me. There’s a difference to me between the police being able to discover how much electricity I use, vs. being able to see, relatively, which room it may be being used in. They can watch my house day and night. They can follow me to public places. They can find out how much my electric bill is for.
But, I believe (correct me if I’m wrong, please), that in order to find out **to whom ** I made the $200 worth of ld calls, they’d need that nice piece of paper from the judge, signalling some evidence of wrong doing.
That’s where I’m going with this. Without evidence of wrong doing in the first place, I believe the cops attention needs to remain in public areas - outside my damn house.
I’ll grant you under the current siege mentality that can occur, ‘probable cause’ for a search warrant may be as flimsy as ‘KNOWN INFORMANT’ kind of thing, but I still say, make them jump through that hoop.
Eh?
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.”
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.
In other words, they can break into your house under suspicion (like you left your oven on and had excessive heat signatures? :rolleyes:) to obtain information to get a real warrant to obtain real evidence.
Perhaps we have differing views on personal privacy, but if you consider that a warrant then I’ll stand down. 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.
I thought line-item veto-like activities weren’t constitutional? How nice if I could, when in court, strike out parts that I found convenient for my case.
Sneak and peak warrants rape the 4th amendment.
ARL, you claimed above that “AFAIK, federal agents do not require a warrant to search.” That is patently false, as demonstrated by the very article you cite to support this statement:
Shall I go on? The simple point is that these are by no means warrantless searches.