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.