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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

 

c.         Pre-Katz Analysis
            Under a pre-Katz property based law evaluation, the result changes completely, focusing on a trespass into the vehicle rather than a sampling of the driver’s breath.  The Sniffer samples air from the inside of the car, using its pump to suck the air out.  The car would be considered private property, and could not be searched in anyway without a warrant.  Recall Silverman, where the court held officers actions constituted a search when a microphone was merely placed inside of the heating duct.   This minute trespass is similar to the Sniffer using the air intake pump to pull air out of the car and evaluate it.  Because the Sniffer would constitute a physical search of the vehicle and not just the driver’s breath, law enforcement could not use the Sniffer without a warrant.
5.         Mass Spectrometry and Gas Chromatography
a.            Traditional Katz Analysis
            When applied to drug detection, mass spectrometry and gas chromatography are a unique combination of the Sniffer and a drug detecting dog.  These molecule detection units detect drugs by sampling the air around a person or package.  Proponents of the molecule detector hail the device as being far superior to drug sniffing canines.   The technology is passive, meaning it is likely to receive the same analysis as drug sniffing dogs in Caballes.  Only two cases have been heard involving similar devices, although neither was discussed in any depth.   Individuals possessing narcotics could demonstrate a subjective expectation of privacy any number of ways.  This paper will assume a subjective expectation of privacy has been asserted, in order to move on to the objective prong of Katz.
            Under a traditional objective Katz inquiry, molecule detectors would not constitute a search.  Much like dog sniffs; the molecule detector is capable of detecting only drugs.  No other personal information is acquired, and the detector itself may be used a short distance from the suspect or a package, without intrusion.    An individual has no right to possess contraband; therefore, society would not consider the molecule detector to invade any reasonable expectations of privacy.

b.         Neo-Katz Analysis
By focusing on ‘how the molecule detector reveals information,’ it becomes clear that society has a reasonable expectation of privacy from the detector’s intrusion.   The molecule detector screens the air through a tube that is capable of detecting even the smallest amount of drugs.  Molecules can be identified as small as one part per one hundred trillion.   To work, the device need only screen air surrounding a person or object.  For the purpose of this section, the paper will assume that the individual is not in a vehicle, as that discussion would be identical to the analysis of the Sniffer.  Instead, focus will be on a person on the street, or a package in the possession of that person.  Because the molecule detector can detect contraband without intrusion, and without revealing any intimate details about the person, it would seem to pass a neo-Katz test as well.  Only after close scrutiny of the detector’s reliability do the privacy implications become apparent.  
The molecule detector is too reliable for its own good, resulting in too many positive readings.  The detectors are boasted to have a 99% reliability rate; that is, 99% of the time, the substance the detector is alerting to is actually contraband.   The problem is that the molecule detector is too sensitive, giving off false positives when the suspect actually has no contraband on him.  Consider the following examples.  A woman walks into her office the first day of work.  She shakes hands with over fifty people.  On her lunch break, she takes the subway, touching doors and turnstyles, and handles two newspapers left on the seats.  On her way back to work, officers armed with a molecule detector receive a positive signal emanating from the woman’s hands.  Next, consider a banker, handling money all day long.  In each hypothetical, the individual is exposed to public areas where molecules from contraband could easily be picked up.  It is no secret that there is a small amount of cocaine on currency.   Although in trace amounts, an unsuspecting handler would be tainted with enough molecules to be detected, even after washing her hands.   Trace amounts of contraband could be passed hand to hand, or by touching public doors and railings.  These molecules may not be deposited into public by only criminals; molecular drug residue could be left by policemen, lab technicians, or bankers.  Due to the oversensitivity of molecule detection units, society would deem it unreasonable to permit intrusion into so many peoples’ expectation of privacy.  
c.         Pre-Katz Analysis
Under the property based pre-Katz law, there would be no search because the molecule detector can detect contraband without physical trespass.  Contrary to what we have seen so far with emerging technologies and property based Fourth Amendment law, here the public is not afforded greater privacy rights.  This is due to the unobtrusive manner in which the molecule detector operates.  The molecule detector sends no waves or rays into an item.  By sampling air outside of the individual or a package, physical trespass is unnecessary for the detection of contraband.

Silverman, 365 U.S. at 506.

https://www.cbi-pace.com/ncrl.htm. Each dog requires its own personal operator, who must train it for a year.  Dogs will not work with anyone else, so, if the dog or trainer catches a cold, the team doesn't work. They can only work 15-20 minutes at a time, and no more than 1-2 hours per day.  Dogs require "refresher training" every week.  In addition, Dogs are large, noisy, require large spaces for exercise, produce copious amounts of waste, and are expensive to acquire, breed, train and keep. Id.

Bober, supra note 206, at 78.

Id. at 77.

https://www.cbi-pace.com/ncrl.htm.

Mark Curriden, Courts Reject Drug-Tainted Evidence, 79 A.B.A.J. 22, Aug. 1993, (noting that the latest estimate is that cocaine is on 70% of all U.S. currency); see also Jeff Brazil and Steve Berry, You May Be Drug Free, But is Your Money?, Orlando Sentinel Trib., June 15, 1992, at A6. (Toxicologist Wayne Morris, who has testified in hundreds of criminal cases, notes that as much as 90 percent of currency in some cities tests positive for cocaine).Wayne R. LaFave, 1 Search and Seizure, 2.2(f) (1988) (noting that police might wind up stopping people for merely carrying cash).

Bober, supra note 206, at 77.

Again, if the individual were in a car, or an area where there was a privacy right (as in a house), then there would be a search under property based Fourth Amendment law.

 


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