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You are reading: Katz is out of the Bag: Katz’s Weaknesses & the Rapidly Emerging Technology of Today and the Future, (2005)
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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
b. Neo-Katz Analysis
Upon an examination of the ‘method used by the technology,’ it is clear that the gun detector penetrates the material of an individual’s clothing or bag in order to ‘see’ inside. Little changes from the traditional Katz analysis above: detectors capable of seeing only guns would do so outside of the Fourth Amendment since they are contraband, and detectors capable of view all objects would still be unreasonable.
c. Pre-Katz Analysis
A pre-Katz property law evaluation actually offers more privacy than Katz. Because the gun detector emits waves into the bag to detect electromagnetic radiation, the officers have actually penetrated the personal property of the individual. This would have been considered a search, even if the search only revealed was the presence of contraband. It is a well-known axiom of criminal procedure that probable cause is required prior to a search. Consider the following hypothetical. Ashley is walking down the street with a book sack, not exhibiting any suspicious behavior. Directly in front of her a police officer is holding a gun detector (that can only detect guns). Assuming the court employs the ‘method used by the technology’ approach to Katz, the officer may point the gun detector at her. This would not be considered a search because, like dog sniffs, the detector can only reveal contraband, and Ashley possessed a gun. Now assume that Katz was never decided, and the courts still followed the property based Fourth Amendment laws. The officer would be forbidden to use the gun detector, since the rays physically penetrate Ashley’s bag.
3. Heartbeat Detection Devices
At the outset, it should be noted that many potential uses for these devices occur at national borders or airports to prevent illegal immigrants and unknown terrorists from entering the country. Those scenarios will not be discussed in this paper, as they are guided by the special needs doctrine.
a. Traditional Katz Analysis
Under a traditional Katz test, law enforcement’s use of heartbeat detectors would not constitute a violation of the Fourth Amendment. The most effective method to evince a subjective expectation of privacy and cover up a heartbeat could possibly include a small device used to distort the heart’s frequency vibrations. Other attempts have been unsuccessful, including being wrapped in blankets, but could still be considered by the court. The ‘type of information revealed’ is the heartbeat itself. Society would not deem it reasonable to think that there is privacy in a heartbeat. Anyone who views another person functioning normally can reasonably assume that the individual’s heart is beating.
Heartbeat detectors are similar to dog sniffs and electronic trackers. Consider a fugitive running from police. The fugitive gets a head start toward a large abandoned warehouse, and disappears inside. Law enforcement is apprehensive because the individual is armed. Instead of sending officers to search the entire warehouse, they use a heartbeat detector to learn where the fugitive is hiding (assuming the range of the detector is sufficient). These facts are very similar to Knotts, since officers are attempting to use technology to expedite a search that they could conduct themselves, saving time and possibly lives.234a Now consider officers pulling over all cars on the road, as in Caballes, and using a heartbeat detector to locate an expensive rare parrot stolen from the local zoo. The detector can reveal only the presence of heartbeats, and no personal information regarding the drivers is revealed (other than the fact that their own hearts are beating). Like Caballes, there would be no search because there is no expectation of privacy in contraband, here the stolen parrot. A key distinction is that everyone has a heartbeat, while only some choose to illegally carry guns or drugs.
b. Neo-Katz Analysis
A neo-Katz examination of the ‘method used by the technology’ does not alter the result. A heartbeat detector reveals minute vibrations emanating from the heart, which can be detected by a sensitive detector. There is nothing inherently intrusive in a device that detects heartbeats, especially with a unique frequency, and such a perfect success rate. One of the concerns with dog sniffs was the false positive rates. An issue with gun detectors was the broad range of items, aside from guns, capable of detection. Neither of these fears is present with the heartbeat detection device, and thus, it would pass Katz.
c. Pre-Katz Analysis
Pre-Katz property based law would offer no more protection than a Katz evaluation. Like gun detectors, heartbeat detectors reveal certain contents inside of a container; however, heartbeat detectors differ from gun detectors in one key way. Instead if emitting waves into the container, heartbeat detectors actually measure the vibrations emitting from the heart. The vibrations not only shake the bag or container, but the entire enclosed area. Thus, in our parrot hypothetical, officers would place two detector units on the front and back bumpers. The parrot’s heartbeat would actually vibrate the whole car at a unique frequency (once the driver was out of the car). The same would be true of a room or box. Detectors could be placed on the outside of a container without any intrusion whatsoever. This lack of physical trespass would preclude a finding that the Fourth Amendment was violated.
4. Passive Alcohol Testing
a. Traditional Katz Analysis
The passive alcohol test presents an interesting dilemma regarding Katz’s subjective prong. It seems unnatural to say that an individual can subjectively have an expectation in their exhaled breath. One could argue that merely being in the vehicle creates a ‘zone of privacy’ barrier between the officer and driver. This barrier could serve to dissipate odors from both the car and the driver’s breath. However, a brief survey into traffic stops illustrates that odors, especially those of smoke or alcohol, are quite apparent to the officer despite this barrier. Nevertheless, it is possible to take precautions to prevent one’s breath from smelling like alcohol. Avoiding this difficult question (since this paper deals primarily with the objective prong of Katz), it will be assumed that the driver exhibited a subjective expectation of privacy by popping a few mints in her mouth, all the while being wary not to exhale too hard.
Recall back to the discussion of Katz in Section II. The majority found that an individual in a phone booth had an expectation of privacy, regardless of whether a recording device was placed inside or outside. One could draw comparisons between a phone booth and recorder, and a vehicle and a Sniffer. Should it matter that the Sniffer sucks air from the inside of the car, or air exhaled toward the officer? According to Katz, it should not, assuming there is an expectation of privacy either in the driver’s breath or her car.
The Sniffer would not implicate any Fourth Amendment privacy protections under a traditional Katz test. Passive breathalyzers such as the Sniffer are similar to dog sniffs in that they only detect the presence of an illegal substance, mainly during traffic stops. The Sniffer detects only traces of alcohol on a driver’s breath, just as a dog sniff reveals only the presence of narcotics. Evidence of alcohol on the breath, when paired with driving an automobile could be considered contraband; that is, an individual has no privacy expectations in his intoxication when driving drunk. However, intoxication levels are generally considered evidence of driving while intoxicated, rather than contraband in itself. This distinction is a worthy one; gaining evidentiary information, as opposed to capturing contraband, is the process by which officers obtain probable cause. Aside from checkpoints, officers generally have a suspicion that a driver is intoxicated prior to pulling him over. By observing the individual driving, officers may form a preliminary opinion as to the sobriety of the driver, and can investigate further. Once the driver is pulled over, the use of the Sniffer becomes very similar to Knotts. Recall that in Knotts, police used a tracking device as a substitute for what they could detect anyway. The Sniffer does the same, providing the officer with an evaluation of the driver’s toxicity level. By displaying the driver’s estimated blood alcohol level, the Sniffer is merely mimicking information that an officer could recover through further investigation, albeit more precisely. By expediting the process, the officer saves time and is able to return to the streets to investigate more crime. Courts would be quick to point out the passivity and lack of intrusiveness of the Sniffer. After all, how intrusive could the Sniffer be when drivers don’t even know its being used? Under a traditional Katz objective test, society would recognize the Sniffer, and similar devices, to be reasonable, and therefore not a search.
b. Neo-Katz Analysis
Focusing on ‘how the Sniffer reveals information’ alters the inquiry from sampling the driver’s breath to a search of the air in the car. The Sniffer is difficult to analyze because upon examining ‘how it works’, the question inevitably returns to ‘the type of information revealed’. The Sniffer operates by sucking in air from both inside the automobile and exhaled from the driver towards the officer standing outside of the car. It detects only the presence of alcohol, and reveals no other private information. Or does it? It could reveal that someone else in the car has been drinking. It could reveal that the driver is clumsy and accidentally spilled alcohol on herself or the inside the car. These are both legal reasons to smell like alcohol and drive an automobile. But just how private is this information? As opposed to facial recognition, which has the capability to reveal intimate personal information, the Sniffer reveals only whether the scent of alcohol is within the car.
So the question turns to the nature of the information revealed, and how private the smell of alcohol is from within a vehicle. It is well established that automobiles possess a lesser expectation of privacy because of pervasive regulation and their mobility. Automobile regulations forbid driving while under the impairment of a mind altering substance, including alcohol. Organizations such as Mothers Against Drunk Driving have been effective in publicizing the severity of America’s drunken driving problem. Legal blood alcohol limits have been reduced numerous times. Many states have penalties for drivers who refuse to take a breathalyzer at an officer’s request. When these restrictions on driving while intoxicated are evaluated, it may be that the presence of alcohol, by itself, is not an intimate privacy detail that society is willing to deem as reasonable.
Whether the Sniffer really can center in on air only exhaled from the driver’s mouth as opposed to air inside the car is a matter of reliability. Reliability would raise concerns that the Sniffer has a false positive reading, much like canines in Place or Caballes. One issue could be that the Sniffer would reveal other substances on the breath, indicating a false positive. Not so, boasts the Sniffer’s website, claiming that it is “unaffected by acetone, paint and glue fumes, foods, confectionery, methane, and practically any other substance likely to be found in the breath.” This leaves open the possibility that there is alcohol in the air of the car, but not on the breath of the driver. Two such circumstances are readily apparent: a driver in a car filled with empty beer cans (maybe on the way to the recycling plant), and a designated driver transporting drunk passengers. In both of these situations, more likely the latter, the Sniffer may give off a false positive. Although the Sniffer draws in only 1 cubic inch of air, arguably from directly in front of the driver, a car carrying several intoxicated passengers, traveling with the windows up, will saturate the air inside the car. Is this enough to alter the objective prong of a neo-Katz test? Most likely the answer is no. Officers utilizing the Sniffer would (hopefully) use their training to take into account the driver’s passengers and other factors, and not rely exclusively on the Sniffer. Under a neo-Katz objective test, society would most likely deem this tool reasonable since there are so many restrictions already on driving while intoxicated, and the Sniffer detects only alcohol, and not excess personal information.
234a Knotts, 460 U.S. at 285.