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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
1. Enhanced Visual Aids
In Texas v. Brown , the court was confronted with whether the use of a flashlight by police constituted a search. The court held that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.
A year after Katz, the Court of Appeals for the Tenth Circuit heard a case involving the use of binoculars. In Fullbright v. United States, investigators watched through binoculars, from 75 to 100 yards away, as the defendant loaded untaxed spirits into a vehicle. The defendant argued that the investigators had illegally searched by using binoculars to breach the curtiledge and privacy of the home. The court held that the investigator’s use of binoculars did not change the character or admissibility of the information gained. The court noted that, although binoculars enable the police to look into the house itself, the doors were wide open, and the lights all turned on.
Here, the court begins to focus on several factors relevant to this paper. The court recognizes that binoculars are in general use in public, and a reasonable person would realize the possibility of others peering into unveiled windows and open doors, either with binoculars or with regular eyesight. In this analysis, the court seems to be correct in applying the Katz objective standard; that is, the analysis appears to be in line with conventional public sentiment. Fullbright also marks the beginning of the court’s focus on the type of information revealed rather than how the technology operates. The court notes that the type of information acquired through binoculars is the same as that which could have been seen with plain sight. As opposed to the later cases this analysis is on point, especially considering that binoculars were not new, and law enforcement could actually see a great deal without them.
In United States v. Hensel, officers used a high powered telescope to observe the defendant in his home, through unveiled windows. The Court of Appeals for the First Circuit made a distinction between using the naked eye, and using enhanced visual aids. The court held that the officers' observation inside the defendant’s home by unenhanced vision, from a location where they may lawfully be, does not impair a legitimate expectation of privacy.
Other circuits have disagreed with the First Circuit’s ruling regarding enhanced observation aids. In the Second Circuit, courts have held that the use of visual aids such as binoculars, telescopes, and night scopes violates Fourth Amendment rights.
As in Fullbright, the Hensel court focused on the type of information revealed rather than how the technology worked. A telescope has the potential to zoom in further than binoculars; however, both operate to reveal what could be seen in less detail by the naked eye. In both Fullbright and Hensel, the courts emphasize that because the windows were open, there was no expectation of privacy, and rightly so. Telescopes are in general use by the public, and have been for just as long as binoculars. This reliance on the lack of subjective assertions of privacy (shaded windows) will change in subsequent cases, as courts begin to focus more on the objective prong of Katz. As criminals become savvier, the court begins to stray away from their well-grounded application of subjectivity, turning more toward the ‘type of information revealed’ to routinely hold no violation of the Fourth Amendment. Objectively, it seems unlikely that an individual would find telescopes more intrusive than binoculars, and certainly not when the windows are open. Most people are aware of their privacy and guard against peeping toms and the like.
2. Aerial Searches
Perhaps the ultimate in enhanced viewing involves aerial surveillance from airplanes and helicopters. Aerial surveillance allows law enforcement to monitor an individual’s conduct without necessitating a physical intrusion. While these acts generally cannot see inside the home, they are quite effective at viewing the curtilege and area around the home, even when high fences and walls block view from public streets and surrounding buildings.
In California v. Ciraolo , officers took to the skies in an attempt to observe marijuana growing in the defendant’s yard, which was enclosed by a 6-foot outer fence and a 10-foot inner fence. From 1000 feet overhead in a private plane and without a warrant, officers easily identified 8 to 10 foot high marijuana plants in a 15 by 25 foot area in the yard. The officers photographed the area with a standard 35mm camera. On appeal of his conviction, the defendant argued that the warrantless aerial observation of his yard violated the Fourth Amendment. The Supreme Court granted certiorari, and implemented the Katz two-part test: first, whether the individual manifested a subjective expectation of privacy in the object of the challenged search, and second, whether society is willing to recognize that expectation as reasonable? In applying the first part of Katz, the court concluded that one can reasonably assume that the two fences were present placed to conceal the marijuana from at least street-level views. The court then expanded this concept, noting that the fences would not have hidden the plants from the eyes of officers perched on the top of a truck or a two-level bus, therefore rejecting the notion that the defendant manifested a subjective expectation of privacy from all observations of his backyard.
Despite the fact that the court inserted this hypothetical into the subjective prong of Katz, it rightfully belongs in the objective prong. The court is essentially saying that society would not deem the defendant’s expectation reasonable, because the police could have found a better public location. This hypothetical illustrates a clear attempt by the court to bridge the gap between officers standing on the street and taking to the skies, and is both utterly absurd and out of touch with public sentiment. For a vantage point to be found public, the public must have regular access. The top of a bus is not a location where the public frequents. Not only is it extremely rare for individuals to climb aboard the top of a bus, but it is also illegal. This fact is ignored by the majority, who gave weight to the fact that the airspace in which officers flew above the defendant’s house was within FAA guidelines and laws. If members of the general public would not flag down a bus and climb atop, it is unlikely that society would welcome officers to do the same, without any feelings of intrusiveness. Justice O’Connor echoed these concerns in her concurrence in Florida v. Riley, discussed below. Justice O’ Connor made clear that if the public rarely travels at such altitudes, “the observation cannot be said to be from a vantage point generally used by the public.”
In examining Katz’s second prong, the court held that any expectation of privacy the defendant had regarding the aerial observation of his garden was unreasonable and not an expectation that society is prepared to honor. The court reasoned that any member of the public flying in this airspace could glance down and observe everything that these officers saw. By imagining that an individual flying overhead could possibly view the plants, the court leaps to the conclusion that the individual would have seen the plants; amounting to the reasonableness of the police conduct.
Three years later in Florida v. Riley, the Supreme Court granted certiorari to decide whether surveillance of a partially covered greenhouse in a residential backyard from a helicopter located 400 feet above the greenhouse constituted a Fourth Amendment violation. The court relied on Ciraolo to point out that because the sides and roof of the defendant’s greenhouse were left partially open, he could not have reasonably expected the contents of his greenhouse to be immune from an officer peering down from an aircraft. The court noted that although this case involved a helicopter, the public airspace was still utilized, and there was no indication that public helicopter flights were unheard of in Pasco County, Florida. The court dismissed the defendant’s argument regarding the low altitude, observing that the helicopter had been flying within the bounds of the law and flight regulations. Based on these findings, the court held that the defendant’s Fourth Amendment protections were not violated.
As in Ciraolo, the court misconstrues the objective prong of the Katz test. Few members of society would feel that a police helicopter, or any helicopter, flying under 500 feet is reasonable, and does not intrude upon their privacy. This is exactly the type of behavior that is noted in Orwellian novels. The court does say that helicopter flights such as these were not unheard of, but even if true, that is a far cry from common. It is not unheard of for law enforcement agents to profile suspects; however this does not modify the act into one that society deems objectively reasonable.
In Dow Chemical Co. v. United States, the court reaffirmed Ciraolo and Riley, holding that taking aerial photographs from navigable airspace is not a search prohibited by Fourth Amendment.
3. Tracking Devices
In the 1970’s, law enforcement began using tracking devices, informally known as beepers, to trace movements by suspects or their belongings. A beeper emits a signal that can be monitored by a radio receiver, yielding no other information aside from its location. As technology has advanced, beepers and trackers have decreased in size, from the size of a cigarette pack, to the size of a penny, and smaller.
One of the first instances before the court in which law enforcement utilized this tracking device was United States v. Emery. Federal agents inserted a tracking devices into two packages suspected of containing cocaine. After the defendant picked up the packages, the agents maintained surveillance and monitored the beeper's signal. The defendant asserted that the warrantless insertion of the beeper into the packages was unconstitutional. The court looked to the defendant’s reasonable expectation of privacy, and concluded he had none. They reasoned that the beeper was not attached to his person, or to an object legitimately possessed by him, but rather it was inserted into a package containing contraband, which he had no right to possess.
Here, the court looked solely at the type of information revealed rather than how the technology was used. The tracker itself could only relay information regarding the location of the contraband, which the defendant had no legal right to possess. The court ignored the beepers capabilities, and set the stage for this evaluation in later cases.
In United States v. Knotts, the Supreme Court held there was no violation of privacy when officers placed a tracker on personal lawful property. With the consent of the seller, law enforcement officers placed a beeper in a five-gallon drum containing chloroform purchased by one of the co-defendants. Officers monitored the progress of the defendant’s car, carrying the chloroform from its place of purchase in Minneapolis, Minnesota, to a secluded cabin near in Wisconsin. Officers secured a search warrant and subsequent arrest by relying on the location of the chloroform produced by the beeper, as well as three days of surveillance of the cabin. In finding no Fourth Amendment violation, the court held that scientific enhancement of this sort revealed merely the same information as visual surveillance; a police car following the defendant throughout his journey could have observed the same thing. Lastly, the court acknowledged that there was no indication the beeper was used in any way to reveal information as to the movement of the drum within the cabin, or in any way that would not have been visible to the naked eye from outside the cabin.
Similar to Emery, the court again focused on the type of information revealed; that is, the beeper revealed the same type of information that police can gather with their own senses. The courts reasoning is ultimately flawed. People who drive their cars on the road are in public view, and continually expose their whereabouts to the public as they travel. Because they are visible, there is no reason why police cannot do the same. However, people do not expect to be followed on the streets. When a person notices she is being followed on the road, she becomes unnerved, and take precautions. She may drive faster, make more turns, and attempt to lose the tail. This is because being followed goes to the heart of what we consider private; the importance of being left alone. Stalking laws prohibit this type of behavior by the general public, and although officers may be justified in investigating crime, at the very least the following of citizens implicates social norms and privacy.
Admitting that police may lawfully investigate and tail an individual, the question centers on the difference between physical tailing by police and the use of beepers. Law enforcement in Knotts electronically tracked the defendant from Minnesota to Wisconsin. It is questionable whether police could have maintained the tail for that long without being spotted. The court seemed to assume that an officer’s ability to follow a suspect’s car temporarily amounted to a tail that could follow the suspect all day, in any area. Indeed, it may be impractical and improbable for a police officer to follow a suspect at all times, as a tracking device can do. There is also sociological evidence that society views tracking as more intrusive than mere tailing by police. A 1993 study asked non-lawyers about their expectations of privacy regarding police practices and search techniques. Experimenters presented subjects with a list of law enforcement activities, many of which involved Supreme Court cases, and asked each subject to rank the activities in order of intrusiveness. In one ranking relevant to Knotts, subjects rated using an electronic tracking device on a car as significantly more intrusive than police physically following a suspect in a car. This finding is consistent with the assertion made in this paper that physical trailing by police in a car is not absolute, and incorporates the possibility of a suspect who becomes aware of the tail. A tracking device allows law enforcement to obviate any awareness of the suspect, distances, traffic, and many other factors that continue to allow for anonymity in pubic.
Christopher Slobogin and Joseph Schmacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at “Understandings Recognized and Permitted by Society”, 42 Duke L.J. 727 (1993).