News Re: 4th Amendment?
posted by on October 9 at 23:25 PM
Josh wants to know what just happened to the Fourth Amendment. The good news is we still have it in Washington. The bad news is that the 8th Circuit Court of Appeals capped its knees in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
Last Friday, the Court affirmed it was legal for an officer to use a thermal-imaging device in May 2004 to gather information about private activities inside a house—even though the warrant that allowed the thermal imaging was based on nothing more than elevated power usage, a seven-year-old conviction for a marijuana offense, and stale information from an unspecified informant. The images revealed that Mohammed Ahmed Kattaria’s house in Lauderdale, Minnesota was emanating heat (consistent with a marijuana grow or sauna), which the officer used to obtain three more warrants to physically search the house and arrest Kattaria. Here’s what the Justices wrote:
We are inclined to believe that the same Fourth Amendment reasonable suspicion standard that applies to Terry investigative [pedestrian or traffic] stops should apply to the issuance of a purely investigative warrant to conduct a limited thermal imaging search from well outside the home. [.pdf]
In a nutshell, Americans in the 8th Circuit states now have less protection from search in their home than in their car. And the ruling isn't about pot growers, per se. Anyone could have their home searched without their knowledge, based upon information that would never justify a physical search.
The problem with the Court’s conclusion, according to Alison Holcomb, superstar attorney at the ACLU of Washington, is that it compares apples (stopping and questioning someone on the street) to oranges (searching a private residence). When presented with a similar case, the 9th Circuit Court of Appeals saw the distinction and ruled that thermal imaging searches require as much probable cause as physical searches—and if this ruling is appealed, the Supreme Court may, too. Holcomb breaks it down for us:
What is missing from the Eighth Circuit’s analysis in the Kattaria decision is any examination of, or even reference to, Supreme Court precedent involving the search of a person’s home, the area long recognized as receiving the greatest protection under the Fourth Amendment. The two Supreme Court cases cited in support of its rationale, New Jersey v. T.L.O. and U.S. v. Montoya de Hernandez, involved the search of a student’s purse in a public school and the detention of an individual entering the U.S. across an international border. The court thereby misses entirely the central point of Kyllo: “The Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of information obtained.” Kyllo v. U.S., 533 U.S. 27, 37 (2001). Characterizing a thermal imaging search as “minimally intrusive” because it only captures the heat signatures of items within the home, the Eighth Circuit ignores entirely the Kyllo Court’s affirmation that, under the Fourth Amendment, “In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.” Id.What will be interesting to see is whether Mr. Kattaria seeks review by the Supreme Court, and whether review is granted – the Eighth Circuit decision is in direct conflict with a decision from our own Circuit. In United States v. Huggins, 299 F.3d 1039 (9th Cir. 2002), the Ninth Circuit Court of Appeals addressed the same issue presented in Kattaria and held that “although a thermal imaging search is less intrusive than a physical search, the degree of probable cause required is not diminished merely by virtue of that fact.” Id. at 1044. In other words, if police officers want to use a thermal imager on someone’s home, they need to establish the same level of probable cause required to obtain a warrant to enter and conduct a physical search. The Kattaria court complained that, “If the same probable cause is required to obtain both kinds of warrants, law enforcement will have little incentive to incur the expense of a minimally intrusive thermal imaging search before conducting a highly intrusive physical search.” Too bad. As the Supreme Court said forty years ago, “[W]e cannot forgive the requirements of the Fourth Amendment in the name of law enforcement. . . . [I]t is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one’s home or office are invaded.” Berger v. New York, 388 U.S. 41, 63 (1967).
So, there you have it.
Does this mean police can now fly over Little Rock in a helicopter with a thermal ray gun and note every house with a warm roof, obtain search warrants, and search them? Probably not. Even under the Terry ruling, officers must be able to point out “specific and articulable facts” to show reasonable suspicion that an individual may be committing a crime—cops technically can’t just pull over drivers on a whim. So random thermal imaging searches are still illegal even under the 8th Circuits lowered standard, and images gathered from a flyover alone wouldn't be sufficient to establish the probable cause required for a physical search. But that’s not to say it couldn’t happen. For Midwest pot growers, this ruling sends a clear message: Grow pot in the basement.
It’s also important to make the distinction that thermal imaging of a home is qualitatively different than, say, a search on the grounds that a K-9 alerted at a suitcase or a cop smelled the odor of marijuana emanating from a house. In those instances, the indicators of probable cause for a physical search would be created by criminal activity (they smelled drugs), but a huge electricity bill or a warm roof could indicate legal activity. So, in the 8th Circuit, this ruling could make someone’s home vulnerable to a raid even if the occupant hadn’t broken the law. If someone rumored they broke the law. Or they were convicted years ago for pot….
Once again, our Fourth Amendment privacy protections have been compromised in the name of enforcing drug laws. Racial profiling, asset forfeiture and suspicionless urine testing all stand out as casualties of the drug war. Now we can add thermal image searches of homes to the list. Maybe Orwell was an optimist.
Am I awake?
Apparently so.
In a nutshell, Americans in the 8th Circuit states now have less protection from search in their home than in their car.
Actually I am pretty sure they said it was the same...
It’s also important to make the distinction that thermal imaging of a home is qualitatively different than, say, a search on the grounds that a K-9 alerted at a suitcase or a cop smelled the odor of marijuana emanating from a house.
That raises an interesting point. What is the qualitative difference between sniffing and imaging. Both do not require the entrance into the house and both relay on the emanations from inside. Would an electric sniffer be ok?
Is it a bad decision sure, but the legal question underlying it is a tricky one. To what extent can police examine a home and the things coming out/off of it. The odor of marijuana is ok, but thermal imagining isn't. The only difference is that our senses are attuned to one and not the other. If we were snakes, we could be having this conversation in reverse.
Racial profiling, asset forfeiture and suspicionless urine testing all stand out as casualties of the drug war. Now we can add thermal image searches of homes to the list. Maybe Orwell was an optimist.
This kind of hyperbole is why we don't get taken seriously. Whenever something kinda bad happens we jump straight to Orwellian police state as if any government overstep means that we're days away from totalitarianism. It makes us look like 9/11 truths and crazy homeless street preachers
The recent administration and an unfortunate number of judges have been less than stellar on civil liberties. But overly paranoid hyperbole does not win us support when a huge majority of people are still going about there lives like ever before. I believe they call it crying wolf.
Well, it looks like the 8th Circuit Court's decision is in direct conflict with the previous 9th Circuit Court decision. When the decisions of two Circuit Courts conflict, that is a classic rationale for taking it to the Supreme Court. Sadly, with our current Supreme Court, they are likely to side with the 8th Circuit.
*sigh*
This is troubling, but I'm more worried about the end-run around the 4th amendment presented by the USA PATRIOT Act. The 8th Circuit judges at least agree that you need a warrant.
In response to Giffy @ 3: Actually, police need probable cause (the same level as is required to arrest you) to SEARCH your car rather than just STOP it to question you (the "Terry stop"). The 8th Circuit said the police can use thermal imaging on your house with no more than the reasonable suspicion required by Terry, so you do, in fact, have less protection from thermal imaging of your home than you do from searches of your car - if you live in the 8th Circuit. The 9th Circuit disagrees.
The qualitative difference between sniffing and imaging is that the latter is a search under the Fourth Amendment: "[O]btaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search . . ." Kyllo, at 34.
There's nothing hyperbolic about connecting the "War on Drugs" to the erosion of our civil liberties. See, for example, N.J. Office Of The Attorney General, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling (April 20, 1999); United States v. 6380 Little Canyon Road (9th Circuit asset forfeiture case) ("All assets seized by the Department of Justice go into its Asset Forfeiture Fund, which the Attorney General is authorized to use for law enforcement purposes. . . . This incentive enhances the need for close scrutiny of in rem forfeitures. Forfeitures, in effect, impose an impressive levy on wrongdoers to finance, in part, the law enforcement efforts of both the state and national governments. To that end, and to that extent, crime does pay. For this very reason, the judiciary, both state and federal, should be alert to detect constitutionally proscribed injustices imposed on individual wrongdoers"); and In re Orr, Empl. Sec. Comm’r Dec.2d 795 (1987) (Washington employee discharged solely on basis of off-duty marijuana use even though no impairment of job performance was detectable and use caused no harm to employer’s interests). Dominic didn't even mention paid informants or wiretapping.
Try asking someone pulled over for "driving while black" if Dominic's just crying wolf. Maybe, instead, the sheep have been asleep too long.
Giffy, I think you misunderstood.
It's not the same because searching a vehicle requires more probable cause than required to make a "Terry" stop, where an officer simply speaks to one of the car's occupants or a pedestrian.
The difference between sniffing and imaging is that imaging can generate false positives, because certain legal activities look like pot growing. To use your analogy, a snake would be confused, just like you.
The Supreme Court addresses this distinction in their Kyllo ruling as well (in one of those nifty links from the post), when they cited another case: "Thus, obtaining by sense-enhancing technology any information regarding the home’s interior that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman v. United States, 365 U.S. 505"
Finally, you can call it hyperbole is you like, but I was making a reference to the telescreens in Orwell's 1984, which watch people from the inside of their homes. Thermal imaging watches people from the outside. Not an inappropriate comparison, me thinks.
Greg, even though this rulings says officers must obtain a warrant, the quality of evidence required to obtain that warrant is very low. It essentially creates a second-class warrant that can be justified on unreliable information, which practically conflicts with the Kyllo ruling.
Not to worry, the police are now able to have OnStar turn off your ignition, have your car stop, open your doors and your trunk, in order that you can be searched without a warrant for DWB.
Dominic, I agree with you that establishing a lower threshold for thermal imaging warrants compared to physical search warrants conflicts with the Kyllo ruling and is probably unconstitutional.
I remember hearing that a roofing company in the Midwest used infrared aerial photographs of neighborhoods to pick out the warmest houses in order to target their business. In other words, a warm house can be the result of nothing more sinister than poor insulation.
The point I was trying to make by bringing up the PATRIOT Act, however, was that while this recent 8th Circuit decision is bad RE: unreasonable search and seizure (and should be overturned), it's not the flaming turd dropped onto the 4th amendment that is the FISA section of the USA PATRIOT Act. Thank goodness two of those parts were recently struck down.
Alison, fair enough on the Terry issue.
As for difference between sniffing and thermal imaging, I was raising the question as to why. Personally I think at a visceral reaction they seem different and I am inclined ot want probable cause for them, but I think there is a trouble in articulating a difference.
My hyperbole comment wasn't in reference to the war on drugs and civil liberties, but in reference to the Orwel comment. I agree that civil rights have been constrained and I am not too happy about that. However I think there is a tendency on the left to jump to police state/totalitarianism at the drop of the hat. I think it makes us look foolish and demeans the notion of a police state.
In North Korea, a true police state every citizen lives in fear of the government, they cannot exercise even basic rights, etc. We're not there yet.
My big concern with this is that it makes it hard for people to take us seriously. when we make exaggerated claims that don't match up to peoples observation we seem like were crazy. I would rather us point out the problems of things like the Patriot ACT without claiming thats its passage will destroy America.
Dominic,
Sniffing can create false positives too. Drug dogs get confused and so do cops.
Ostensibly scent enhancing technology does the same thing as thermal imaging. It gives information about the interior of a house that could not be obtained without search. The fact that its scent particles and not radiation particles/waves doesn't seem to be a huge difference.
As creatures who are sight orientated that seems important because thermal imaging gives us a farmilar pictures. To a dog the 'picture' from scent scanning would be just as vivid.
Honestly I would not be opposed to requiring warrents for both, or better yet legalize drugs and decease the need for either.
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