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Katz is out of the Bag:
Katz’s Weaknesses & the Rapidly Emerging Technology of Today and the Future. 

Robert Keates                                                                                     Spring, 2005

 

Section V – Conclusion and Final Thoughts
            It has been discussed that when the courts rely on the ‘type of information’ revealed by a technological law enforcement tool, the result is often a reduced expectation of privacy.  Courts have routinely ignored the intrusiveness of technological devices that threaten an individual’s privacy and life.  This trend of analysis has been utilized by the Supreme Court in cases involving dog sniffs, electronic tracking, and thermal imaging.   After examining the emerging technologies, including gun detectors, facial recognition, passive alcohol detectors, and molecule detectors, it becomes clear that focus on the ‘type of information revealed’ mischaracterizes the true nature of the device. 
Under this type of assessment, each technology discussed in Section IV would be deemed outside the bounds of the Fourth Amendment, allowing officers to act without a warrant.  By basing Katz on this type of inquiry, the courts would fail to account for many problems that become apparent only after an assessment using the ‘method used to gain information’.  Such problems include false positives and oversensitivity.  Molecule detectors are capable of producing a false reading by detecting contraband on a level that would give a positive read on individuals involved in lawful acts.  Passive alcohol detectors may pick up the scent of alcohol from a source other than the driver.   Under this analysis, gun detectors would be compared to dog sniffs, since they only reveal contraband, and would also be outside the Fourth Amendment.   Facial recognition software would be available for use in any public place, ignoring the fact that intimate information could be linked to the systems databases.   Allowing intrusion based on what a device detects encroaches upon areas of life where there was once an expectation of privacy. 
By concentrating on ‘how the technology obtains the information,’ each device’s capabilities are examined.  Each aspect of the device is evaluated for potential intrusiveness.  This approach would alleviate concerns that gun detectors capable of detecting more than contraband would eventually fall outside of the Fourth Amendment.  Upon the first gun detector case, the court would look at the capabilities not only with the present model, but the capabilities of future development.  It would not be hard for the court to predict that eventually, a device used to see though clothing and search for only guns may be adapted to search for drugs or anything at all.  By an initial focus on how the item obtains the information, the court is already a step ahead of both the technology and any position taken by looking only at the type of evidence revealed.  This is an important aspect, not only with gun detectors, but with all emerging technologies.
With four of the five technological devices discussed in Section IV, mere focus on how the technology operated altered the outcome of intrusiveness.  Upon first glance, facial recognition seemed to pass any Katz test considering the exposure of an individual’s face to the public.  However, after a fairly simple evaluation, substantial privacy issues surfaced.  In this way, the evaluation took into account many legitimate privacy factors that a traditional Katz inquiry would omit.
After the neo-Katz test was implemented, pre-Katz property based law offered greater privacy with regard to three of the five technologies than Katz itself.  Does this mean Katz should be overturned? Probably not; but it does indicate that Katz is perhaps unstable when confronted with emerging technologies.  Maybe what Katz needs is an additional prong, only to be used when challenged with the latest technologies used by law enforcement.  It seems that courts have informally done this by centering on the type of information revealed.  This paper submits that the courts have implemented this additional prong backwards, skipping a step in between.  Recall the discussion of the Sniffer from Section IV.  The Sniffer was difficult to analyze because an inquiry into ‘how it works’ inevitably returned to the ‘type of information revealed’.  This illustrates the need for both questions.  By asking both what type of information is revealed and how the device revealed the information, privacy is fully protected. 
Rather than beginning with the premise that a device capable of detecting only contraband falls outside the Fourth Amendment, the court should apply a neo-Katz inquiry of how the technology operates.  After a neo-Katz test is conducted, an inquiry into what is revealed becomes more relevant. This would provide support and meaningful judicial inquiry on the capabilities of the device, and would properly insulate the intrusiveness that a device may have on society.  Consider the following argument.  A search must be based upon probable cause.   Officers may not search to obtain probable cause.  Likewise, officers using a molecule detector must have probable cause to point it at a citizen and search for drugs.  But what if the molecule detector is capable only of detecting drugs, like dog sniffs?  The court has ruled that because there is no expectation of privacy in possessing drugs, a device that can alert officers to only the presence of drugs would not violate the Fourth Amendment.  This requires law enforcement to have a technological device (or animal) capable of detecting the presence of contraband.  Under the present analysis, once the officers have this machine, they may use it to locate drugs.  In utilizing this argument, the court has skipped over a very important step.  How does one evaluate the machine the officers are using? What happens if the machine is faulty, or reveals too much?  This is where a neo-Katz evaluation is needed by the court.  By evaluating how the device operates, the courts may examine privacy issues and determine whether the device is truly capable of detecting only drugs.  As discussed above, courts would be free to conclude that the molecule detector is not reliable enough because of its oversensitivity.  Or the court may conclude that, as in Caballes, while dog sniffs are not perfect, they are an excellent indicator of the presence of narcotics.  Either way, an added prong to Katz would go a long way in reassuring society that their privacy is not becoming as outdated as last years technology.
It has also been discussed that the courts application of the objective prong has not always been in line with society’s beliefs and social norms.  Although the Supreme Court has acknowledged refusal to base its decision on empirical data, and rightly so, the court could cure many of its illogical notions by closing the gap between reasonable police investigative techniques, and social and behavioral norms.  A prime example of ignoring social norms can be found in Ciraolo, where the court hypothesized that an officer could climb on top of a public bus parked outside the suspect’s house, and peer over his fence.   While it is possible for an officer or a citizen to do this, it would be considered socially deviant, not to mention illegal.  The same can be said of a member of the public flying 400 feet over a suspect’s greenhouse.  The courts should concentrate their evaluation of Katz’s objective prong more on what is socially acceptable, and not what could be possible.
Lastly, the general use doctrine was examined, dissected, and exposed for the confusing mess that it is.  The courts should abandon the general use doctrine all together, as it presents more questions than it provides answers.  What should fill its place?  Perhaps nothing is needed. If the court were to adopt the neo-Katz test, which would arguably become a third prong for emerging technologies, then a general use type of test is unnecessary.  Courts will already be equipped to filter out intrusive characteristics of technological advances, theoretically before the advances are possible.  Even if new models of a device surfaces, a neo-Katz inquiry will examine the new characteristics and make a determination based on the existing expectations of privacy at the time, taking into account other technologies and counterintelligence tools.  This approach will at the least ensure that privacy will not continue to diminish as technology becomes increasingly advanced.
Technology is taking the world by storm, helping to achieve feats previously thought impossible.  As law enforcement utilizes technological tools in the fight against crime, it is only inevitable that certain privacy interests are usurped.  The courts must be the guardians of the Fourth Amendment, balancing law enforcement tactics against the privacy interests of society.  Once the courts determine that the current framework is ill suited to handle emerging technologies, the wheels of the criminal justice system will properly turn once again.

Robert Keates

Although by using this analysis the court found that thermal imaging violated the Fourth Amendment; emphasis should be stressed that Kyllo involved the home, where privacy is at its greatest.

Terry, 392 at 21.

Slobogin, supra note 89, at 728.

Ciraolo, 476 U.S. at 215.


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