Comments on Re: 4th Amendment?

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.