These Walls Are Thin

A federal court of appeals recently issued an interesting opinion that touched on law enforcement’s use of new radar technology that can peer through the walls of your home. Reportedly, at least fifty agencies have quietly equipped their agents with such devices, and other, similar devices boast even greater capabilities.

Here’s the backstory. The defendant was on the lam. He’d been convicted of armed robbery and served time for it but then stopped reporting to his probation officer and disappeared. Federal marshals went looking for him and were able to tie his name to a residential address, so they went to that address with an arrest warrant. The warrant gave them the right to enter the home if they had reason to believe the defendant was there at the time. Payton v. New York, 445 U.S. 573, 603 (1980). From outside the walls, the deputies used a handheld radar device to detect human breathing and movement on the inside, and it registered someone’s presence. Based on that and other information, they stormed the residence, found the defendant there, arrested him, and seized two guns they found with him. The guns led to a new conviction for felon in possession of a firearm.

On appeal, the defendant argued that the deputies entered the home without sufficient reason to believe he was there, given that they searched the home using the radar device without a warrant in violation of the Fourth Amendment. Previously, the Supreme Court had held that the government needed a search warrant to use thermal imaging technology to see inside a home. Kyllo v. United States, 533 U.S. 27, 33-36 (2001).

But in this case, the court of appeals disagreed. First, it noted a split of opinion among the federal courts regarding whether “reason to believe” meant probable cause or something less than that. See, e.g., United States v. Gorman, 314 F. 3d 1105, 1112 & n.6 (9th Cir. 2002). Then it concluded that, even if the deputies needed probable cause to believe the defendant was inside the home before they entered it, they had it. First, they knew he had recently opened a utility account for the home and was the primary account holder. Second, they knew he hadn’t reported any income from employment recently, which suggested he’d be home in the morning on a weekday. Third, they knew he was on the lam and thus more likely to hole up at home anyway than gallivant about town. And fourth, they noticed that the home’s electric meter was spinning faster than usual, which suggested someone was inside using the electricity. Under these circumstances, the court found enough reason under either standard to believe defendant was home at the time.

Still, the court couldn’t help commenting on the new technology:

“It’s obvious to us and everyone else in this case that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions…. We have little doubt that the radar device deployed here will soon generate many questions for this court and others ….”