Is it time to re-moat your Castle?
Last night, while SKYPE-ing with my better half, I
mentioned the new radar that allows the police to “look” through your house’s
walls for criminals and their activity as a possible blog topic, one I thought
he might like because it is so 4th amendment-y. I sent him the link to an
article and video on it and this was his reply:
There is a doctrine in existence called the “Castle
Doctrine.” In old English times, a moat was placed around the castle to protect
the occupants from snooping neighbors or ne’er-do-wells who might want to steal
or occupy the castle. It was interpreted to mean that a man’s home is his
castle and he is entitled to do as he pleases within its bounds with no outside
interference. Under modern law, the Castle Doctrine specifically provides a
legal standing designating a person's abode (or, in some states, any legally
occupied place [e.g., a vehicle or workplace]) as a place in which that person
has certain protections and immunities. Even our own U.S. Constitution in the
4th amendment guarantees “The right of the people to be secure in their
persons, houses, papers, and effects…. What are they secure from? They are
secure “against unreasonable searches and seizures, (they) shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized. “ So why is it now that we find law
enforcement agencies both local and federal suddenly able to “look” inside our
castle without our permission? Recent news reports and the Tenth Circuit of the
U.S. Appeals Court reveal law enforcement agencies are using devices like the
Range – R which allows them to detect movement within a house simply by
attaching it to the outside of the house.
This current type of device was first employed by
our troops in Iraq and Afghanistan and subtly made its way back to the U.S. and
into the hands of police and even the FBI and U.S. Marshals more than 2 years
ago. It’s interesting that a similar case had addressed a similar situation of
“looking into our houses” over a decade ago in a case decided by the U.S.
Supreme Court. Kyllo v. United States, 533 U.S. 27 (2001), held that the use of
a thermal imaging or FLIR, device from a public vantage point to monitor the
radiation of heat from a person's home was a "search" within the
meaning of the Fourth Amendment, and thus required a warrant. In other words,
police couldn't just take a look for heat signatures. Shouldn't it be the same
thing for movement? What if criminals get ahold of this $6000 device so they,
too, can see if anyone is home? There is a plethora of pros and cons – what
about terrorists, what about hostage situations, etc. Undoubtedly there are a
myriad of questions that will have to be answered by our courts. In the
meantime, should I break out a shovel just to “re-moat” my house for privacy?
Do the needs of society’s safety outweigh my right to privacy? I’m sure
attorneys on both sides of this development are ready to “dig” in.