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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

 

4.         Dog Sniffs
            The United States Customs Service first used dogs to detect drugs in the early 1970s, and have since relied on them as a primary tool in the fight against drugs.   While canines may not be considered new items of technology, novel training techniques have allowed dogs to detect many different types of drugs.  By merely sniffing the air around a package, vehicle, or clothing, these police dogs can detect even very small amounts of drugs.  Once law enforcement began to utilize drug sniffing dogs, it was only a matter of time until the issue came before the courts.
            In United States v.  Place, the defendant’s bags were sniffed by a drug detecting dog at an airport.   Although the case was not decided solely on the grounds of the dog sniff, the court held that the technique did not constitute a search within the meaning of the Fourth Amendment.   The court noted that dog sniffs were much less intrusive than a typical search, and disclosed only the presence or absence of narcotics.   This limited disclosure also ensured that the owner of the property was not subjected to the embarrassment and inconvenience often implicit in regular searches.
            In City of Indianapolis v. Edmond , the Supreme Court again touched on dog sniffs, but this time in the context of roadblock checkpoints.  The court reaffirmed Place by holding that the mere fact officers walk a narcotics-detection dog around the exterior of a car at checkpoints does not transform the procedure into a search.
            After Edmond, many jurisdictions treated dog sniffs differently, some following Place and Edmond, and others rejecting it.   Then in 2004, the Supreme Court granted certiorari on the question of whether using a drug-detection dog to sniff a vehicle during a legitimate traffic stop violated the Fourth Amendment.  In Illinois v. Caballes, a trooper stopped the defendant for speeding while a second trooper and his drug sniffing dog walked around the car.   After the dog alerted the troopers that the trunk contained contraband, the defendant was arrested.   The court held that because the dog sniff was performed on the exterior of the car, while the defendant was lawfully seized for a traffic violation, any intrusion on defendant’s privacy expectations did not rise to the level of a constitutionally cognizable infringement.
            The rationale used by the court in all three cases focuses on the type of information revealed rather than the nature of the search itself.  Based on this reasoning, law enforcement officers may search anything with a device that reveals only non-private property.  It has been suggested that a computer search by police using a program capable of detecting only illegal files may be used without the suspect’s knowledge, on basically any computer connected to the internet, as long as the program hides identifying information.  
This dilemma takes a twist when one takes new technology into account.   It is true that the sniff only detects the presence of contraband, which is illegal to possess.  What is wrong with the police using technology to find criminals, when the technology keeps privacy intact?  The problem is reliability.  The case relied on by the Supreme Court in Caballes cited a 71% rate of false positives.   Canine handlers may mistake a cough or sneeze by the dog as a positive sign.  A whimper, or a bark at anything could easily fool the handler into thinking the dog had detected the presence of drugs.  In fact, these problems, as well as poor training and handling techniques lead investigators to conclude that some canines have a reliability of less than 40%.   While reliability is not an explicit factor in a Katz analysis, it is implicit in any search that utilizes the ‘type of information detected.’  When courts rely on an individual’s lack of privacy in possessing contraband, reliability must be present in order to buttress the constitutionality of a procedure.  Under a traditional Katz analysis, reliability allows the court to enforce a search based on the mere presence of contraband; it goes to the determination that only contraband was detected.  The problem is when the procedures leading to the detection of contraband are faulty.  When devices, or dogs, begin to give to many false positives, indicating contraband where there is either none or minute traces, a traditional Katz analysis begins to crumble.  Technology is not perfect, as anyone who owns a personal computer will attest to.  Molecular testing, which will be discussed later in this paper, has experienced these same false positives at an alarming rate.  Nevertheless, the court continues to decide cases based on the ‘type of information revealed’. 
            Focus on the nature of information revealed actually reduces privacy.  It has been argued that this rationale offers less privacy than pre-Katz property based law.   Consider the following hypothetical involving the computer searches above.  Under traditional property law approach before Katz, police could not send a search program into an individual’s computer without a warrant, not even to search for non-private property.  Under Caballes, the computer program used by police described above would not be a search, since no personal identifying information is recorded (unless contraband is found), and only illegal files are revealed.   This aspect of the paper will be explored in more detail in the discussion section.
5.            Thermal Imaging
            Thermal imaging devices, or Forward Looking Infrared Devices, are most frequently used by law enforcement to detect indoor marijuana cultivation.   In order to avoid surveillance techniques such as aerial flyovers utilized in Ciraolo and Riley, marijuana farmers have taken their crop indoors, using high powered heat lamps to produce an ideal environment for the plants to thrive.   These heat lamps cause areas of a grower’s house to be significantly warmer than other areas.  Thermal imaging devices detect excessive heat on the surface of a structure, and can do so from the outside of the building.   The device transfers the detection of heat onto a screen, based on the amount of heat emanating from an area.   Black images represent cool, white for hot, and various shades of grey represent differing temperatures.   These devices can identify smaller concentrations of heat within a building, specifically body heat.
            The Supreme Court addressed the issue in Kyllo v. United States, settling a long standing federal circuit split. Suspecting that marijuana was being grown in the defendant’s house, officers performed a thermal image scan from across the street and from behind the house.   The scan revealed that the roof over the garage and a sidewall were relatively hot compared to the rest of the home and warmer than neighboring homes.   The court held that by using sense-enhancing technology, any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion, constituted a search. This was the case at least where the technology in question was not in general public use.   The court acknowledged that thermal imaging was capable of detecting intimate details inside the house, such as “what hour each night the lady of the house takes her daily sauna and bath.”
            Although the court’s decision protected privacy in the home from thermal scanning, Kyllo calls into question the logic of prior cases, including Ciraolo, Riley, and Knotts.  Those cases suggest that as long as it is possible to learn and observe personal activities without actually entering an area where there is an expectation of privacy, no search has occurred.  The court distinguished the aerial surveillance cases by claiming that thermal technology was not in general use.   However, the fact that an item is not in common use by society is merely a temporary solution and should not be the crucial factor in the court’s analysis.  As technology becomes more advanced, there is a trickling effect of its integration into the public markets.  It stands to reason that slightly older models will become increasingly available to the public at decreased prices.  What would a law abiding member of the public want with a thermal detector?  Perhaps contractors would purchase them to find out where to install excess insulation in their buildings. Likewise, a homeowner would find them useful to discover escaping heat, to lower heating bills.  What is good law and not in general use today, could easily become widely used tomorrow (or years down the road), and thus, bad law.  Difficulties inherent in the ‘general use’ standard will be examined in the Discussion section.
6.         Mass DNA Testing
            Every state now collects DNA from individuals convicted of certain offenses.   Over the past decades, law enforcement agencies have amassed a huge collection of DNA samples, complete with the profiles of the donors.   Deoxyribonucleic acid (DNA) is present in the cells of all living organisms capable of sexual reproduction.   Each DNA nucleus contains a blueprint that permits the cell to replicate, and provides a genetic code unique to that individual.   Law enforcement can use this unique DNA code to identify an individual by using almost anything from that person, be it fingernail clippings, hair, or blood.
Testing can be divided into three main categories: where suspect’s DNA is already on record in a database; where officials go out into the community, asking for samples; and where sample are taken from an individual, either by force or in a clandestine manner.  The former two categories have been deemed constitutional, while the third category presents problems under the Fourth Amendment.
When a suspect’s DNA is already in the database, DNA records are very similar to fingerprinting.  Officers attempt to match DNA from the evidence with the suspect’s DNA.  If there is a positive match, the suspect is arrested, much like when a fingerprint is discovered on the murder weapon.127a  The court has ruled that fingerprint databases are constitutional.127b  When a suspect in custody refuses to consent to a DNA test, courts have ruled that the seizure of a DNA sample constitutes a search.  In Schmerber v. California, police forcibly obtained blood samples, over the defendant’s objection, to determine the defendant’s toxicity level. The court held that the police action, which seized physical evidence below the skin, plainly constituted a search.   Likewise in Skinner v. Railway Labor Executives Association, the court held that forced testing of breath and urine constituted a search and intruded upon expectations of privacy that society has long recognized as reasonable.  
Another method that utilizes known DNA databases consists of testing evidence left at the crime scene.  DNA databases are different than facial recognition databases in that DNA database information is not as readily available to officers.  DNA matches require lab work, while facial recognition databases, as will be discussed in Section III, are computer based and can be searched instantaneously. Recently, DNA samples were pulled from a cigarette butt found in a Federal Judge’s home after her mother and husband were shot to death. Although more than 2.27 million genetic profiles were available for matching in the national database, no match was found.   This latter method of taking evidence at a crime scene does not implicate any Fourth Amendment concerns because the DNA is abandoned by the criminal.  
The second method law enforcement may obtain DNA is by consent.  With participant’s consent, mass DNA testing was used in Maryland to locate a rapist who had been in a private building and in a county-wide search in Florida for a prostitute serial murderer.   Neither search yielded any positive matches.   A more successful instance occurred in the town of Struecklingen, Germany, where officials took samples from all males age 18 to 30, based solely on the surviving victim’s description of the age.   A match was made, leading to the arrest of a 30 year old convicted rapist.   As long as the donor gives knowing and intelligent consent to participate in a mass DNA search by providing a DNA sample, there are no privacy implications. 
A different situation arises under the third type of DNA testing, which is controversial for bearing overtones of an Orwellian Big Brother society.  This is when law enforcement collects DNA samples from an unsuspecting individual’s abandoned cells, in a clandestine manner.   Examples include hair or urine left in a public bathroom or saliva remaining on a discarded bottle.  In United States v. Nicolosi, the court examined varying privacy interests in relation to the sampling of different type of physical evidence.  The court considered certain physical evidence such as voice, hair, and handwriting, as “outwardly manifested in the public domain” and therefore not implicating privacy interests.   Blood and other internal fluids were not in the public domain, and involved significant privacy interests.   Lastly, the court held that saliva and breath samples occupied a middle ground.  

 

Shannon R. Hurley-Deal, State v. Fisher: Canine Sniffs – Who Let the Dogs Out?, 26 N.C. Cent. L.J. 47, 52 (2003) (reporting that in 2002, the US Customs Canine Enforcement Programs recorded 4,980 arrests).

462 U.S. 696 (1983).

Place, 462 U.S. at 707.

Id.

Id.

531 U.S. 32 (2000).

Edmond, 531 U.S. at 40.

Hope Walker Hall, Sniffing Out the Fourth Amendment: United States v. Place – Dog Sniffs – Ten Years Later, 46 Me. L. Rev. 151, 152 (1994).

160 L. Ed. 2d 842 (U.S. 2005).

Caballes, 160 L. Ed. 2d at 846.

Id.

Id. at 848.

Orin Kerr, Dog Sniff Precedent Reaffirmed, The Volokh Conspiracy Online Blog, January 24, 2005, at https://www.volokh.com/archives/archive_2005_01_21.shtml#1106585518.

  United States v. Kennedy, 131 F.3d 1371 (10th Cir. N.M. 1997) (describing a dog that had a 71% accuracy rate).

Lesley Stahl, Does the Nose Know? 60 Minutes, January 4, 2004, at https://www.cbsnews.com /stories/2004/01/05/60minutes/main591477.shtml.  The canine in question reported over a 90% reliability rating when tested in laboratory conditions, however, when applied in actual practice, the dog scored at 35.5%.

See Dog Sniff Precedent Reaffirmed, The Volokh Conspiracy Online Blog, supra note 104.

Id.

Jonathan Todd Laba, If You Can't Stand the Heat, Get Out of the Drug Business: Thermal Imagers, Emerging Technologies, and the Fourth Amendment, 84 Cal. L. Rev. 1437, 1442 (1996).

Id.

Id.

Rania M. Basha, Kyllo v. United States: The Fourth Amendment Triumphs Over Technology, 41 Brandeis L.J. 939, 944 (2003).

Id.

Moore, supra note 19, at 810.

533 U.S. 27 (2001).

United States v Cusumano, 67 F.3d 1497 (10th Cir. 1995) (thermal imaging is search); Ishmael v. United States, 48 F.3d 850 (5th Cir. 1995) (thermal images not a search), cert. denied, 116 S. Ct. 74-75 (1995)United States v. Myers, 46 F.3d 668 (7th Cir. 1995) (same); United States v. Ford, 34 F.3d 992 (11th Cir. 1995) (same); United States v. Pinson, 24 F.3d 1056 (8th Cir. 1994) (same); United States v. Penny-Feeney, 773 F. Supp. 220 (D. Haw. 1991) (same).

Kyllo, 533 U.S. at 30.

Id.

Id. at 34.

Id.

Id. at 38.

Colb, supra note 87, at 169.

D.H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J. L. & Pub. Pol'y 455, 456 (2001).

D.H. Kaye & Michael E. Smith, DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage, 2003 Wis. L. Rev. 413, 414 (2003).

Fred W. Drobner, DNA Dragnets: Constitutional Aspects of Mass DNA Identification Testing, 28 Cap. U.L. Rev. 479, 482 (2000).

Id.

Id. at 483-84.

127a Id.

127b Kaye, supra note 123, at 457.

384 U.S. 757 (1966).

Schmerber, 384 U.S. at 767.

489 U.S. 602 (1989).

Report: DNA found in judge's home, but doesn't match data, USA Today, March 8, 2005, at https://www.usatoday.com/news/nation/2005-03-08-judge-bodies_x.htm.

Id.; see also Drobner, supra note 125, at 486-87. (detective, following suspect who was riding on a motorcycle, stopped to recover saliva after suspect spit onto the street).

United States v. Cox, 428 F.2d 683 (7th Cir. Wis. 1970) (holding that hair clippings taken from a barber shop after defendant’s hair was cut did not violate defendant’s privacy and was constitutional); see also Venner v. State, 279 Md. 47 (1977) (holding that excrement deposited in a hospital bedpan was considered voluntary abandonment and relinquishment of any expectation of privacy).

Drobner, supra note 125, at 486-87; see also DNA role in BTK suspect's arrest questioned, CNN, February 28, 2005, at https://www.cnn.com/2005/US/02/28/btk.investigation/index.html (DNA playing a role in apprehending BTK killer).

Drobner, supra note 125, at 486-87.

Id. at 486.

Id.

885 F. Supp. 50 (E.D.N.Y. 1995).

Nicolosi, 885 F. Supp. at 55.

Id.

Id.


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