Ryan McCarthy

Legal Issues of the 21^st Century

Spring 2004

Professor Friedman

Legal Research Paper

Topic: Surveillance Technology

Focus of Research:

Introduction

Mr. Torres was set to meet some fellow criminals in the football stadium's parking lot on the day of the Super Bowl. Federal and local police agencies had received uncorroborated anonymous information relating to an alleged transaction, specifically identifying Mr. Torres' vehicle as the one law enforcement should focus on identifying. The government opted to employ a device which, when pointed at a vehicle or person, emitted sound waves which would disturb molecules on and around the subject, enabling the device to collect a sample for analysis. The device could then "read" the molecules and inform the government agent as to what substances, such as drugs or bomb-making materials, were present. The device could also go so far as to reveal whether the subject was taking medication for HIV, or whether the person recently had sex.

On Super Bowl Sunday, the government scanned every incoming vehicle to determine whether any elicited even trace amounts of narcotics or bomb-making materials. Eventually, Mr. Torres' vehicle was identified - not because it matched the description provided by the informant, but rather because the device positively alerted on the vehicle for the presence of cocaine. Agents surveilled the car, and Mr. Torres was subsequently arrested.

While some or every aspect of this brief story may seem scary to those of us concerned that the government's prying eyes already see more than they ought to be permitted to see, this story is not too far-fetched. This particular fact pattern formed the basis of the case argued in the Spring 2003 Honors Moot Court Competition in the law school at Santa Clara University in which I was a participant. As I read the "fake" record and learned the facts of my client's case, I was troubled by what went on in the case, but took solace in the fact that it was made up by a hand-full of third year law students. However, as I began my research, I found cases and materials indicating that such as device as that described above actually exists and is being employed by law enforcement with little regard for the procedural safeguards afforded by the Fourth Amendment to the Constitution.

Scope of Research

For purposes of this legal research, I have chosen to survey how the courts have dealt with the government's use of technology in its zeal to catch bad guys. The means employed range from drug-sniffing dogs to metal detectors to machines called "itemisers" which were depicted in the hypothetical scenario outlined above. Even with all the cases, all the commentary, and all the arguments on both sides, what I find myself coming back to is what is perhaps the most obvious source for the answer as to how we should deal with such technology - the Fourth Amendment. The text is merely 54 words long, and yet the annotations could fill the law school library. In the end, it's only one word that matters: unreasonable. When I think of this technology, and whether the court should allow evidence turned up pursuant to a search conducted with use of this technology, I can't help but think that living in a society which tolerates such power in the hands of its government is anything but reasonable.

With that, I turn to the cases.

Who's Watching Out for Our Rights?

Certainly, the framers of our Constitution had it in mind that the government ought not have full license to conduct searches of whomever and whatever, whenever it so pleased. Hence the language of the Fourth Amendment was included in the Bill of Rights, and, ostensibly, places a burden on the government to do right by its people.

However, over the many years since the Fourth Amendment was drafted, the government has taken numerous opportunities to test its limits - largely at the expense of its citizens' personal liberty. In 1886, Justice Bradley identified what I believe to be the problem: "unconstitutional practices get their first footingÖby silent approaches and slight deviations from legal modes of procedure." Boyd v. U.S., 116 U.S. 616, 635 (1886). Fortunately, Justice Bradley also recognized the power of the courts to protect the people against such action: "it is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Id.

I believe it is important to keep Justice Bradley's words in mind as one considers the cases that follow. In each case, it seems, the government is asking the respective court to consider giving it another inch, and another inch, and another inch of leeway when it comes to balancing the interests in fighting crime versus the interests in protecting our personal autonomy and privacy. Although the particular defendant might actually have been a bad guy, and might actually have deserved some prison time for his misdeeds, that should not provide justification for trample his rights. We who do not engage in crime would do well to realize and remember that it is the criminal, not us, who has standing to challenge the government's conduct - and thus, it is the criminal who asks the court to be watchful of silent approaches and slight deviations from what is constitutionally-approved government conduct.

Recognizing One's Expectation of Privacy as Important

I have decided to begin by bringing up the hallmark case of Katz v. U.S., 389 U.S. 347 (1967). The Court in Katz provided us with the threshold test for the applicability of the Fourth Amendment to a government surveillance technique: whether it infringes upon our reasonable expectation of privacy. In that case, the defendant was suspected to be engaged in some gambling operations, and the government believed he conducted his transactions over a particular payphone. The FBI put in place, on the outside of the booth, a listening mechanism which would capture sound waves that emanated from the booth (when someone spoke within the booth) enabling the FBI to record one side of the phone conversation.

The Court held that "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, 389 U.S. at 351. What the Court meant by this was that we do not have a reasonable expectation of privacy in concealing that which we voluntarily reveal to the public - such as our face or voice. See also U.S. v. Dionisio, 410 U.S. 1 (1973) (holding that features such as fingerprints, voice exemplars, and facial characteristics are afforded no expectation of privacy). However, "what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz, 389 U.S. at 351. Hence, the Mr. Katz, by stepping into a phone booth and shutting the door, had demonstrated that he had an expectation that the content of his conversation over the phone would remain private.

Justice Harlan's concurring opinion in Katz is cited more often than is the majority as stating the law on point. He argued that a search, within the meaning of the Fourth Amendment, occurs when the government activity encroaches upon a subjective expectation of privacy which society is prepared to recognize as objectively reasonable. Katz, 389 U.S. at 361 (Harlan, J., concurring). What this means is that the court will look at whether the particular defendant took affirmative steps to conceal whatever it was he alleges the government searched, such that it can be said that he believed the item to be concealed from the prying eyes of the government. Furthermore, the court must determine whether society would consider to be reasonable the steps taken by the defendant to conceal that thing.

With the introduction of new and intrusive technology, this discussion becomes ever so much more important. Unless we all sign on to the idea of a "transparent society," then we must agree that there ought to be some things a person can keep private. However, with some devices available to the government, such as the "Itemiser" discussed below, any attempt to conceal something is futile. Therefore, passing the two-prong test set forth by Justice Harlan's concurrence in Katz would be nearly impossible. Consequently, "we the people" need to make sure the government respects its boundaries, and we must make sure the courts do not permit those boundaries to extend too far, or to dissipate altogether.

Specific Means Employed by the Government, and How the Courts Have Responded

This paper will not cover all the different types of technology that has been introduced into the government's arsenal or tested in the courts of this country. However, I have selected some areas and cases that provide a sound foundation for determining how much of our personal privacy, and indeed, liberty, we are willing to forfeit for the "greater good." I'll begin with the rudimentaryÖ

A. Dogs

Although it was not a case involving police dogs, U.S. v. Knotts, 460 U.S. 276 (1983), is cited in numerous cases as authority supporting the government's use of technology (and dogs) in fighting crime. In Knotts, the Court stated that "nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology" has afforded them. Id. at 282. However, the Court held that when a device creates a sense - in other words it does not merely enhance or augment something humans can already do, such as see or hear - use of the device constitutes a search, and thus implicates the limitations of the Fourth Amendment.

Dogs are used by the police because of their strong sense of smell - therefore, they withstand scrutiny under Knotts. However, use of police dogs have been challenged on other bases as well. Of course, we know the result, seeing as how dogs still have badges and holsters, but it is of use to take a brief look at how the courts have justified and limited their utility.

The landmark case in the area of drug-sniffing dogs is U.S. v. Place, 462 U.S. 696 (1983). There, the Court held that a canine sniff of an airplane passenger's luggage did not constitute a search within the meaning of the Fourth Amendment. The Court reasoned that the sniff "does not require opening the luggageÖdoes not expose no contraband items that otherwise would remain hidden from public view," and "discloses only the presence or absence of narcotics, a contraband item." Id. at 707. Thus, the Court seemed very concerned with maintaining personal privacy, and only permitted this sort of search (calling it sui generis) because it was so limited in its invasiveness, and limited in what it could reveal about the subject of the search.

The analysis in Place becomes important when we begin to look at the government's use of other types of technology which have capabilities far superior to that of the canine. While I like the idea of the government doing everything it can to make sure the guy sitting across from me on an airplane does not have a bomb in his shoe, I'm none too comfortable knowing that the government is aware of everything I have on me and in my luggage.

In Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470 (5th Cir. 1982), we see why it is important to carefully scrutinize what means are employed by police in their zeal to detect and prosecute crime. In Horton, school officials decided to conduct a search for drugs by working with local law enforcement and the K-9 unit. The police dog trolled up and down the aisles of desks, sniffing out the 13-15 year old students. A dog alerted positively on one female student which caused the school administrators to detain her and search her person and bags. Lo and behold, there were no drugs to be found - however, the dog was persistent in alerting on this young lady. The police forced her to take off her clothes to prove her innocence. Still, a positive alert from the dog. Finally, it was determined that the only reason the dog alerted on the student was because the student had a dog of her own who happened to be in heat at the time.

The court in Horton held that using the drug-dog to sniff the students' bags and lockers was not a search, however, having the dog sniff the students themselves was a search. The court stated, unambiguously, "[t]he students' persons certainly are not the subject of lowered expectations of privacy. On the contrary, society recognizes the interest in the integrity of one's person, and the fourth amendment applies with its fullest vigor against any intrusion on the human body." Horton, 690 F.2d at 478.

Horton is important, at least to me, for this reason: while it proves that police dogs are not infallible, it illustrates how far an innocent person has to go to alleviate the suspicion brought on her by a false-positive alert by police "technology." We live in a world now where it is widely known that approximately 75% of currency contains trace amounts of cocaine or other narcotics. If the police employ such advanced technology that is available to them today or in the near future, technology that can alert on trace amount of cocaine, how far am I going to have to go to convince the police that I've done nothing wrong?

B. Precision Aerial Photography

You could build twenty-foot high cement walls around your compound, but how does that protect your privacy if someone can just fly over you and take pictures with a camera that has super-zoom capabilities? In Dow Chem. Co. v. U.S., 476 U.S. 227 (1986), the Court held that the precision aerial photography used by a government agency to gain information about the petitioner's manufacturing plant did not constitute a search because "[a]ny person with an airplane and an aerial camera" could have performed the same surveillance. Id. at 231.

The Court in Dow Chem. also incorporated the analysis introduced by Justice Harlan's concurrence in Katz, discussed supra. The Court quoted the lower court's opinion as stating:

"Dow did not take any precautions against aerial intrusions, even though the plant was near an airport and within the pattern of planes landing and taking off. If elaborate and expensive measures for ground security show that Dow has an actual expectation of privacy in ground security, as Dow argues, then taking no measure for aerial security should say something about its actual privacy expectation in being free from aerial observation." 749 F.2d 307, 312 (6th Cir. 1984) (emphasis added).

Dow Chem., 476 U.S. at 237, fn.4. Clearly, then, the onus is on we the citizens to take steps to protect against any conceivable avenue the government might exploit in order to gain access to our private information. But the Dow Chem. Court did provide us with some solace, such that our paranoia can be somewhat limited: the Court held that we are only expected to protect against the intruding eyes of devices that are generally available for public use. Id. at 238.

Available to the public? What is the relevance of that? Again, returning to Katz and Justice Harlan's two-prong test for whether or not the government has conducted a "search" for purposes of applying the Fourth Amendment: if the technology employed by the government is "generally available to the public," as the Dow Chem. Court put it (476 U.S. at 239), then society is not going to recognize as objectively reasonable a defendant's expectation of privacy unless the defendant took steps to guard against detection by that technology. Thus, as technology advances, if it is only available to the government, then the government's use of it will likely constitute a search; however, if the technology is bought and sold on the public market, then every hoodlum on the street must be wear an extra layer of clothing lest his secret gets out. Of course, with some of this technology, all the extra clothing in the world is not going to be enough to contain the trace amounts the illegal substance that will inevitably escape.

C. Thermal Imaging Technology

In Kyllo v. U.S., 533 U.S. 27 (2001), the Court addressed the legality of using thermal imaging technology to provide the probable cause necessary to obtain a search warrant. In that case, federal agents had some reason to believe that the defendant was cultivating marijuana within his home (though they did not have enough information to get a search warrant). The agents employed the thermal imaging device which showed that high amounts of concentrated heat was emanating from a certain portion of the house - thus reinforcing the agent's suspicions. On this information, the agents obtained and subsequently executed a warrant.

Justice Scalia, writing for the Court, held that use of sense-enhancing technology to gather any information regarding interior of the home that could not otherwise have been obtained without a physical intrusion into the constitutionally protected area constituted a "search," and specifically, use of thermal imaging to measure heat emanating from home was search. The Court, as it did in Dow Chem. but coming to a different conclusion, reasoned that such an intrusion upon the petitioner's reasonable expectation of privacy constituted a search "at least where (as here) the technology in question is not in general public use." Id. at 34. This, the Court stated, "assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." Id.

D. Metal Detectors and X-Ray Machines

The court in U.S. v. Epperson, 454 F.2d 769 (4th Cir. 1972), held that use of a metal detector, or magnometer, constitutes a search and therefore must respect the requirements established by the Fourth Amendment and its jurisprudence. Likewise, using an x-ray machine, is "clearly a search." U.S. v. Henry, 615 F.2d 1223, 1227 (9th Cir. 1980). The Henry court acknowledged that an x-ray scan would be less intrusive, in a sense, than a physical search of one's person and belongings, however, as the Court in Place suggested would be problematic, the x-ray has a potential for revealing information the subject was trying to keep private. Id. The court even stated that an x-ray is more intrusive than a metal detector, and since use of those has been held to constitute a search, the conclusion is forgone here. Id. (citing Epperson, supra).

That being said, where this technology generally comes into play is at the airport. Those of us who have been through the airport are accustomed to the security measures employed by airport personnel which likely includes placing our bags through an x-ray machine, and stepping through a metal detector or being "wanded" with a hand-held metal-detector. We go through this process without questioning whether it is constitutionally permissible - that's likely because it is.

In U.S. v. Davis, 482 F.2d 893 (9th Cir. 1973), the court indicated that a pre-boarding search is not unlawful if there is implied consent, the search is reasonable, and the prospective airplane boarder has the right to leave without being subject to a search. Id. at 912-14. The court delineating these requirements by stating:

[A] screening of passengers and of the articles that will be accessible to them in flight does not exceed constitutional limitations provided that the screening process is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives, that it is confined in good faith to that purpose, and that potential passengers may avoid the search by electing not to fly.

Id. at 913 (footnote omitted). Again, we return to determining what is "reasonable" under the circumstances. "The determination of reasonableness requires a balancing of an individual's right to be free of intrusive searches with society's interest in safe air travel. ëWhat is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.'" U.S. v. Pulido-Baquerizo, 800 F.2d 899 (9th Cir. 1986) (quoting U.S. v. Montoya De Hernandez, 473 U.S. 531 (1985)).

The "implied consent" referred to by the Davis court was recently affirmed in the context of a civil lawsuit in Torbet v. United Airlines, Inc., 298 F.3d 1087 (9th Cir. 2002). There, the plaintiff was subjected to a random search of his carry-on luggage, and sued the airline, the city and the police officer, alleging a ß 1983 violation, as well as state law claims for false imprisonment, invasion of privacy, negligence, and constitutional violations. Defendants were awarded judgment on the pleadings, and the appellate court upheld that ruling. The court held that the plaintiff had impliedly consented to the random search by placing his bag on x-ray conveyor belt, and that a random post x-ray search of passengers' bags for weapons and explosives did not violate Fourth Amendment.

E. The Itemiser (a.k.a. ion mobility spectrometer)

The final technology I will discuss for purposes of this research paper relates to what has been called the "itemiser." The following link is to a website which provides product information about an itemiser, in fact the same device discussed in some of the cases referenced below:

http://www.iontrack.com/products/itemiser_3/. I've also included a picture of the itemiser, from the same website, to give you some idea of what is being discussed.

So what does the itemiser do? The court in U.S. v. Belwood, 222 F.3d 403 (7th Cir. 2000), described the process:

The IONTRACK Itemiser has the dual purpose of drug and explosive detection. According to the Federal Bureau of Prisons, Drug Free Prison Zone Project (July 1998), the basis of ion drug and explosives detection technology is the collection and vaporization of atmospheric particulate; ionized vapors drift through the ion mobility spectrometer at different speeds, depending on their structure and size, and the speed at which the ions move provides a distinct "thumbprint" that identifies the original substance. An alarm alerts the machine operator when a "thumbprint" for a known drug or explosive has been detected.

Id. at 405, fn.5. Forget gut-feelings and drug-sniffing dogs, this device can tell the police officer exactly what is present on the suspect's person or belongings.

The website lists "product highlights" including the following:

Simultaneous detection of explosives & narcotics

Three selectable operation modes (explosives/narcotics or both)

Extended range of contraband detection including TATP, barbitals & amphetamine sulfate

Reusable, extended shelf-life sample traps

Easy-load, ergonomically designed hand/wand/vacuum sampler with regargeable batteries

Standard 115/230 VAC auto-switching power supply, 12 VDC cigarette lighter adapter and 60-minute internal backup battery

Öand much, much more! As you can see from these product features, the device is intended to be used to detect contraband, thus it is marketed to law enforcement agencies. It is also able to be transported, it can plug into your black-and-white's cigarette lighter, and it comes with the handy-dandy hand-vac for easy use on individual suspects.

So, how have the courts dealt with this technology. Running a search for the term "itemiser" results in only a few hits. The first case, Belwood, supra, had absolutely nothing to do with the itemiser beyond pointing out that persons who visit prisoners (at least at the Federal Correctional Institute in Greenville, Illinois) are required to pass through an "ION Spectometry drug detection device."

In U.S. v. Hibbitt, 208 F. Supp. 2d 1026 (D. Alaska 2000), the court stated:

Applying all of these principles to the facts of this case, the court concludes that the Itemiser test conducted on Hibbitt's luggage is closer to a search than a "non-search" for purposes of the Fourth Amendment. The court wishes to emphasize that it is not holding that using an Itemiser is, in fact, a search based on the present record.

Id. at 1039 (emphasis added). The court later explained that it did not have enough information in the record about the itemiser to be able to determine the device's reliability and methodology, therefore it would rather characterize its use as a search to afford the defendant more protection than the alternative. The court also distinguished the itemiser from the drug-dog in Place, supra, by pointing out that "use of an Itemiser may provide information about someone's personal effects other than that the effects include illegal controlled substancesÖ" Id.

In U.S. v. Gavin, 242 F.3d 384 (9th Cir. 2000), unpublished opinion, the government conceded that its use of an itemiser constituted a search. However, in that case, the contest was over whether probable cause to search existed before the itemiser scan was performed, and the court concluded that such cause did exist based on other circumstances.

Finally, and most recently, in McGee v. State, 70 P.3d 429 (Alaska App. 2003), police intercepted a Federal Express package addressed to the defendant and tested it with an itemiser. The itemiser test revealed traces of a controlled substance. Based on this test result, the police obtained a search warrant to open the package. When the police opened the package, they found about seven ounces (200 grams) of cocaine. This discovery prompted further investigation which ultimately led to several criminal charges being filed against the defendant.

The first time the case went up on appeal, the court held that police must have reasonable suspicion before they can take a package out of routing and subject it to a scan with the itemiser. The case was remanded to determine if such suspicion existed. The trial court held a hearing and determined that the state could not establish that reasonable suspicion existed, and that decision was appealed, but the appellate court affirmed.

Conclusion

As has been illustrated by the cases and discussion above, the law has tried to bend and tweak the text and meaning of the Fourth Amendment to make room for advances in technology that enable potentially more effective and efficient enforcement of the law. But, overall, I believe the courts have done relatively well in balancing the competing interests of effective law enforcement and personal privacy.

Still, I doubt that each respective court had in mind the implications of its particular decision for the long term - in other words, I doubt that the Courts in Dionisio, Knotts, or Dow Chem. were thinking about whether their decisions would someday in the not-too-distant future be cited as binding precedent permitting the government to employ something like facial-identification technology at the door of a mosque "just in case Osama shows up." That is probably because "Fourth Amendment cases must be decided on the facts of each case, not by extravagant generalizations. ë[W]e have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.'" Dow Chem., 476 U.S. at 239, fn.5 (quoting U.S. v. Karo, 468 U.S. 705, 712 (1984)).

However, perhaps in this day and age, when such technology is clearly in existence and available, the courts ought to reconsider this language from Karo and look far beyond the facts and the parties at bar and forecast what their specific words and rulings are going to mean. Just because technology becomes "generally available to the public" does not mean that we should all have to be so paranoid that it is being used to surveil us. We must take a moment, over and over again, and make sure that the country we've inherited does not become the type of country we wish was never "invented."