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 –
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).
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.
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?
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.
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?
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.
Well, I officially retract my statment that it isn’t a warrant. Clearly it is. That was just a dumb thing to post.
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.
What about Van Eck radiation? 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). 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.
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.
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.
according to This, 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.
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.
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.
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.
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.
Caught this thread on the bump because of the final opinion. Who would’ve thunk it?
SuaSponte
Huh? From LawOffice.com: Posse Comitatus Act
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–
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).
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.