Judge Tackles Police Use Of Radar To Scan Home Interiors And Comes Up With No Real Answers

from the it-comes-down-to-details-and-there-just-aren't-enough-of-those dept

Being in law enforcement often means brushing right up against the edges of the Fourth Amendment. It's your job to catch criminals, and most criminals have zero interest in being caught. The resulting surface tension is easily broken. Some breaks are inadvertent. Others are much more deliberate. But in this case, the circumstances are ambiguous at best.

A recent case presided over by Judge Neil Gorsuch of the Tenth Circuit Court deals with these stretched edges. [via Orin Kerr] Convicted felon Steven Denson stopped meeting with his probation officer and holed up in his house, where he was subsequently arrested for parole violations and the illegal possession of firearms. (The guns hadn't been used in any criminal activity, but Denson's previous felony conviction made it illegal for him to possess them.)

We know Denson was in his house because the end result bears that out. Leading up to the entrance of his residence, the police gathered other information indicative of Denson's whereabouts: utilities registered in his name, his lack of employment and electricity usage that surpassed that of an empty house.

Denson challenged the arrest and the post-arrest seizure of weapons on the basis of a single act performed by the officers prior to entry: the use of Doppler radar to determine whether someone was actually on the premises.

While it's never specifically stated as such, the gist appears to be that the Doppler radar was considered a warrantless search by Denson -- something that should negate the actions of the officers following the radar's use. The police had no warrant to search the premises, only a warrant to effect an arrest. While he was being arrested, police swept his home (without a warrant), uncovering the illegal weapons. Judge Gorsuch -- after some discussion on whether the police had enough "probable cause" to believe Denson was at home -- tackles the issue of the radar itself, something that presents Fourth Amendment concerns. [pdf link]
Separately and as we alluded to earlier, the government brought with it a Doppler radar device capable of detecting from outside the home the presence of “human breathing and movement within.” All this packed into a hand-held unit “about 10 inches by 4 inches wide, 10 inches long.” The government admits that it used the radar before entering — and that the device registered someone’s presence inside. It’s obvious to us and everyone else in this case that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions. See, e.g., Kyllo v. United States, 533 U.S. 27, 33-35 (2001) (holding that using warrantless thermal imaging to show activity inside a home violated the Fourth Amendment) New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights.
Denson argues the police had no reason to enter his home, much less search it. The only reason they did was because the Doppler radar indicated someone was in the house. He also argues that the use of the radar should have negated the officers' stated need to perform a sweep of the house for other individuals -- this protective sweep being the instrument of discovery for Denson's weapons stash.

The single mention of a precedential case (Kyllo v. United States) is inserted near the discussion about "grave Fourth Amendment questions," and never mentioned again. It would appear that the Doppler radar was a warrantless search of Denson's premises, at least under this Supreme Court ruling, but Gorsuch ignores this and focuses on the probable cause factors justfying entry of the home in the first place.

Gorsuch examines the protective sweep more closely, and finds it wanting, considering the pre-entry radar deployment. On one hand, Denson's history of violent crime and known violent criminal associates would have justified a "protective sweep" during his arrest. But, on the other hand, the cops already knew no one else was on the premises.
But what — again — about the radar? Before the officers entered, their radar search suggested the presence of one person inside. And given that, one might well wonder: did the officers’ questionable search outside the home paradoxically negate their otherwise solid case for a search inside the home? Surely, after all, the government isn’t entitled to perform searches to guard against phantom risks, ones they know don’t exist. If radar (or any other investigative technique for that matter) dispels the possibility of a hidden danger, a search predicated on that possibility becomes constitutionally unreasonable.

The government cannot take the benefit of a questionable radar search without having to live with its costs. Neither does the government seek to justify its protective sweep in this case on the presence of any threat (say, traps or bombs) that its radar wasn’t designed to detect. The government’s only professed fear was the presence of persons, something its radar was admittedly designed to detect.
Gorsuch could have pushed a bit more on this point, but unfortunately, defers to the unknown.
Even so, without more facts about the radar, its capacities and how it was used, we just can’t say it “dispel[led]” the officers’ “reasonable suspicion of danger” in this case. We know the radar suggested the presence of someone inside. But how far inside the structure could it see? Could the device search the whole house and allow the officers to be sure that they had located every person present? Could it distinguish between one person and several? We just don’t know. Our record lacks any answers. As a result, we simply aren’t in a position to say that the radar search negated the officers’ otherwise specific and articulable reasons to worry about a compatriot lurking inside.
And that's where it ends. Gorsuch notes that the use of these devices means this sort of thing will be discussed again. As for the police department, it's safe to assume it isn't interested in divulging further details about its technology, even if what it withholds may jeopardize the evidence it obtained.

But behind it all, there were two searches performed -- both without a warrant. First, there was the Doppler "search," which determined someone was home. Then there was the search performed under the guise of a "protective sweep." The guns were uncovered in a closet, something that would be checked during a sweep, but the question falls back to whether the sweep itself was justified. Gorsuch says basically that he just doesn't know and the question remains open until the situation presents itself again.

The troubling aspects about the Doppler radar align with concerns about Stingray devices. Police have used IMSI catchers to track down suspects without having to deal with search warrants -- something radar can do as well. In both cases, details about capabilities are left to the courts' imaginations. No one in law enforcement wants to talk about the level of intrusion or the inherent limits of the tech and, for the most part, their silence has been unchallenged.

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  • identicon
    Anonymous Coward, 21 Jan 2015 @ 1:49pm

    Looks like we will have to start building shielding on our houses. Not only just to stop turd muffing government thugs from abusing their "toys" of authority, but you can bet the next round of criminals will be using them too.

    Oh but guess what... the "powers that be" those corrupt bastards at the top will probably say that people trying to protect themselves should be considered criminal and that dragging that tired old line... "if you are not guilty you have nothing to hide."

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Jan 2015 @ 4:18pm

      Re:

      It's important that you leave your door open so that the police can enter at any time to check on you for your safety. You should also walk around naked so that police don't have to be concerned that you're concealing a weapon or drugs on your person for your protection. If you wear clothes, lock your doors, or otherwise enact systems that prevent the police from doing their jobs (with the least amount of effort necessary), then that's clearly probable cause to search your house at gunpoint because you're definitely up to something.

      Patriotic Americans happily bend over for their freedom cavity searches and liberty friskings.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 21 Jan 2015 @ 6:02pm

      Re:

      Shouldn't be too hard to line the walls and ceiling with metal.

      One of the common methods for attaching spackle to drywall is a metal mesh overlay -- the mesh is nailed or glued to the wall, then the spackle adheres to the mesh. As long as the holes in the mesh are smaller than the waves hitting them, the radar is blocked.

      Normally the mesh is only used at the join of two sheets of drywall, but there's no reason (other than cost) not to do the whole wall with it,

      Additionally, since the mesh is insulated by the wall, you could even rig it as a fully functional Faraday cage.

      reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 21 Jan 2015 @ 6:06pm

        Re: Re:

        Another technology that would work for this, is a magnetic induction electrical system.

        Using the same technology as those wireless charger mats some cell phones use, you can wire an entire house that way..

        With a thin layer of sheet metal behind the drywall, you could attach light fixtures to the wall magnetically, without wires -- they draw power through the wall by magnetic induction, the magnetic coil being activated by the fixture being stuck to the wall.

        As a bonus, it would be even more impenetrable to radar than spackling mesh is.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 21 Jan 2015 @ 6:33pm

          Re: Re: Re:

          You *could* do this, but would you? This isn't like metadata collection - the police don't do this to every house.

          I mean, you could also rig up some human-shaped dummies that reflect radar about the same as a person, and leave them around the house so anyone scanning thinks you have guests. But realistically it's not worth protecting against this sort of thing.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Jan 2015 @ 6:30pm

        Re: Re:

        Kind of like the way stucco houses are done.

        After the walls are taken care of, a house's window glass would also need a similar wire mesh embedded (perhaps even giving them the appearance of microwave-oven door glass) and this would also serve another benefit: making the glass shatter resistant. That's especially helpful if you have young children and you don't want visiting police swat teams to be smashing windows and blindly tossing stun grenades inside the rooms.

        But even the most thorough radar-proofing of a house would be in vain if the police switch to high-dose x-ray imaging, which would then require a thick layer of lead or depleted-uranium cladding for protection.

        reply to this | link to this | view in chronology ]

      • identicon
        KRA, 21 Jan 2015 @ 7:42pm

        Re: Re:

        Additionally, since the mesh is insulated by the wall, you could even rig it as a fully functional Faraday cage.


        Cell reception is bad enough where I live.

        Still, your solution is more attainable than getting the courts or legislature to act like old school Americans.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jan 2015 @ 1:51pm

    There should be an easy solution to this.

    Ask the cop if he'd like it if a civilian used a radar to scan their home interior.
    If their answer is no, then it shouldn't be done to civilians.
    As a politician if they'd like it if a cop used a radar to scan their home interior.
    If their answer is no, then it shouldn't be done to civilians.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jan 2015 @ 2:08pm

    seems to me to be a typical attitude from a typical judge! rather than having, first and foremost, the Constitution in mind and whether it was broken AT ANY POINT, AT ANY TIME, because of the doppler, it is yet again pushed into the side lines just so the police can be justified in the search and the way it was done. considering, i thought anyway, that the Constitution was to be upheld by law enforcement and courts, it very rarely actually is. not good, is it!!

    reply to this | link to this | view in chronology ]

    • identicon
      Reality bites, 22 Jan 2015 @ 7:23am

      Can't expect cretins to uphold anything but themselves.

      When so called "justice" is provided by the lowest dumbest bidder you get exactly what you pay for.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jan 2015 @ 2:10pm

    Does anyone know the health and safety implications of using Doppler radar to bombard humans with concentrated electromagnetic radiation? Is it safe to use on infants who have thinner skulls? Does the FCC regulate these Doppler devices?

    I believe the FCC regulates the transmission power of cellphones so they can't cause brain tumors. I heard about cops leaving their radar speed guns on, and resting them on their lap and developing cancer in their leg.

    Once we get past the health and safety concerns for the use of this technology. We can then start looking at the constitutional questions it's use raises.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jan 2015 @ 2:33pm

    "Bad facts make bad law."
    A few issues here which make it a bad case for this issue.
    1) When a person is on parole or probation, his expectation of privacy in his own home is lessened.
    2) The use of the radar was irrelevant. It merely detected a person, not the identity of the person, so it did not show any evidence of whether a crime was being committed.
    3) Without use of the radar, would the police have been able to enter the house based on the arrest warrant alone. Usually a seperate warrant is not needed to enter the home of the person for whom a valid arrest warrant is issued.
    Were the guns in "open view," "plain view" or hidden in a closet, cabinet etc.

    4) Based on the radar showing only one person, a "protective sweep" of the house becomes unlawful, because there is probable cause to believe that NO ONE ELSE is in the house, ie, no officer-safety issue.

    This could have been a better case if the defendant was not on parole, and not in a house which was associated with him.

    In the end though, I believe that SCOTUS will treat the radar like any other forms of technology which give the police a "view" of the interior of a home which they would not be able to have without the device.

    reply to this | link to this | view in chronology ]

    • icon
      Padpaw (profile), 21 Jan 2015 @ 11:10pm

      Re:

      sadly we have to defend the rights of everyone even criminals otherwise we end up with no rights for anyone.

      We cannot pick and choose who to defend or the whole system is pointless

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jan 2015 @ 2:40pm

    First you don't know it is happening till it gets exposed it exists in court and is being used in practice.

    Then come the questions. Ones dealing with Consistutional violations that no one using it wants to answer.

    Then come challenges until one is found that puts it away.

    For the now, Tennessee has a bill up that would prevent the police from using military equipment. It comes as a reaction to Fergison. At this point it is one state saying we don't want our citizens treated this way. Then you get examples like the NYPD's reactions against their own mayor. Each will have its own solution in its own time.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jan 2015 @ 2:46pm

    Faraday cage

    Guess it is time to start building those into walls by default on top of heat and sound isolation.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jan 2015 @ 2:51pm

    We know the radar suggested the presence of someone inside. But how far inside the structure could it see? Could the device search the whole house and allow the officers to be sure that they had located every person present? Could it distinguish between one person and several? We just don’t know.


    Is the court correct to assume that the search is lawful when the police haven't established the answers to these questions? Is the burden on the defendant, since it's an appeal? Was his lawyer incompetent, or did he have a public defender that didn't have the resources to do the research and put those facts on the record?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Jan 2015 @ 2:57pm

      Re:

      It really bugs me when a judge says "We just don't know" when the answer should be readily available. "We just don't know" might be uttered by a court in regards to what happened in a room with no witnesses. It shouldn't be uttered in regards to the capabilities of a device used by the police.

      reply to this | link to this | view in chronology ]

      • icon
        mattshow (profile), 21 Jan 2015 @ 4:08pm

        Re: Re:

        But the judge doesn't know. The judge is not an expert on how these radar guns work. And there are limits on how much independent investigation judges are allowed to do. They are generally expected to work with what has been put on the record: the evidence introduced by the parties.

        If the defendant's lawyer was going to argue that the use of these radar guns was unconstitutional, (s)he should have made sure the judge was educated on just how these guns work.

        reply to this | link to this | view in chronology ]

  • icon
    PlagueSD (profile), 21 Jan 2015 @ 2:52pm

    Now...Where did I put that can of lead-based paint? I think it's time to re-paint my walls.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jan 2015 @ 2:52pm

    Why is everyone suddenly calling it "Doppler" radar? The police radar guns used by traffic cops since half a century ago all work on the Doppler Effect, but I don't think I've ever heard these police radar guns ever referred to as "Doppler" -- a term traditionally reserved for weather radar.

    Anyway, it's not the standard traffic-cop radar gun they're using these days to beam radiation into people's homes (in warrant-less searches) but specially-designed equipment like this:

    http://www.usatoday.com/story/news/2015/01/19/police-radar-see-through-walls/22007615/

    We should all be thankful that at least the police are not shooting cancer-causing x-rays into people's homes, like the US border cops do to inspect shipping containers more rapidly and thoroughly.

    But hey, if the TSA can get away with shredding the 4th Amendment (and perhaps giving people cancer in the process), then why not your local police as well?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Jan 2015 @ 4:05pm

      Re:

      Great article in USAtoday about these radar things. The article states:

      - One is capable of being mounted on a drone.

      - Zero in on movements as slight as human breathing from a distance of more than 50 feet.

      - It can "see" through concrete and brick walls.

      - The radars were first designed for use in Iraq and Afghanistan.

      - They represent the latest example of battlefield technology finding its way home for civilian policing.

      - Justice Department has funded research to develop systems that can map the interiors of buildings and locate the people within them.


      It's good to know our taxpayer money used for researching and developing these weapons for use in foreign wars. Are finally making their way back home so they can be used to repress the very people who funded these weapons in the first place. The American tax payer.

      reply to this | link to this | view in chronology ]

  • icon
    Rapnel (profile), 21 Jan 2015 @ 3:37pm

    There should be no allowable evidence where the ways & means to acquire it are not open to the court.

    It would seem that any gun charges need to go and any information acquired via these searches needs to go along with it. He gets to be arrested and charged with whatever justified the warrant for his arrest prior to his arrest.

    You can't break the law in order to enforce the law. That makes no sense.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Jan 2015 @ 4:47pm

      Re:

      If i dont/cant tell you the means, then im not forced to tell you the truth should i choose, because your not authorised to verify it..........nice justice system if this kind of evidence gets acceptable

      reply to this | link to this | view in chronology ]

    • icon
      Padpaw (profile), 21 Jan 2015 @ 11:13pm

      Re:

      police are treated as above the laws they enforce these days, they have discovered that when few care they break the laws, they can break even more laws. Oversight is of the past the present is do what you want, kill who you want(just have to claim you feared for your life, and your off scot free), beat up/harass/intimidate whoever you want.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jan 2015 @ 4:37pm

    I dont like the fact that were heading towards a future were a "class" will have access to technology that could be used to subjucate those that dont..........and that catching criminals, ACTUAL criminals, will just end up being another politicians buzzword to continue this distribution of rights.........i dont think for one second that these mickey mouse self imposed non restrictions will stop bill having a laugh, jelous greg spying on his girlfriend, or sam fishing for evidence on someone they dont like

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jan 2015 @ 4:48pm

    Don't get it

    If passive thermal imaging is considered a search and requires a search warrant, why is there an issue over radar, an active technology?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Jan 2015 @ 5:22pm

      Re: Don't get it

      Because apparently a judge doesn't understand the difference between an infra-red camera and a radar gun -- or at least pretends not to, in order to reverse-engineer a [pre-ordained] conclusion.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jan 2015 @ 5:09pm

    Patents

    What about the patents?

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 21 Jan 2015 @ 11:05pm

    sometimes I wonder if the police would actually follow the laws they enforce if they were disarmed or if they would become even more criminal and paranoid that everyone hates them and are out to murder them

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Jan 2015 @ 1:40am

      Re:

      Take away their radios and replace them with whistles, then they have to rely on the people they are policing to give them assistance when they need it in a hurry, and their attitudes might start to change.

      reply to this | link to this | view in chronology ]

  • icon
    dave duncan (profile), 21 Jan 2015 @ 11:21pm

    I am pretty sure this is just like putting a camera in your house, they need a warrant.

    reply to this | link to this | view in chronology ]

  • icon
    Violynne (profile), 22 Jan 2015 @ 3:19am

    Interesting. The police can now use radar to determine who is inside a house.

    Yet swatting is still a thing?

    There's something seriously wrong with this country.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 22 Jan 2015 @ 4:04am

      Re:

      'Can' doesn't mean 'will', and why in the world would they pass up the chance to bust into a house and potentially get to use their 'toys' if a simple scan would eliminate the need?

      Those guns aren't going to shoot people and pets themselves, and those flashbangs aren't going to be tossed into cribs on their own after all, got to dust off the gear and give it a test every so often.

      reply to this | link to this | view in chronology ]

  • icon
    musterion (profile), 22 Jan 2015 @ 7:25am

    Of course your cellphone reception would be severely degraded

    Turning your house into a Faraday cage would no doubt seriously degrade your cellphone reception. And I bet with tortuous legal logic somehow be interpreted as evidence that you are trying to hide something illegal. Other than that, I think it is a great idea.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 23 Jan 2015 @ 1:30pm

    Probable Cause Detectors.

    So, say I design a box that I allege can detect guilt.

    You press the button, it lights green. You hold it up to a person, it and it lights bright red and buzzes and emits a siren.

    The way it detects is a trade secret. When the precincts buy a few, they sign an NDA.

    In those districts they sign up for them, they never need a warrant ever, because my boxes never fail to detect guilt.

    Since the judge isn't allowed to know the intricacies of my magic guilt-detecting box (as seems to be the case with this doppler radar).

    Now I remember an era that when an attorney wanted to submit the results of a forensic science test, he had to actually explain the process to the judge and jury.

    Where did we go that we now have magic science boxes that everyone just plainly trusts.

    My guilt-detecting boxes are really on sale, by the way. $100,000 a piece, you must order at least six for your precinct.

    reply to this | link to this | view in chronology ]


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