Posted on 09/09/2004 2:09:10 PM PDT by Sandy
A man's home is his castle. To three Utahns, that means their sanctuary extends all the way to their doorknobs.
But they claim police are trespassing by wiping door handles with a cloth that collects traces of illegal drugs.
The men, in separate cases, are challenging the use of test results that allegedly revealed microscopic drug particles on their front doors - information officers used to bolster their requests for search warrants.
To the trio, the high-tech approach is a blatant violation of the Fourth Amendment right to be free of unreasonable searches.
A person has a subjective expectation of privacy in their front door, which is part of the home itself, assistant federal defender Wendy Lewis wrote in her request to throw out evidence seized during a 2003 search of Anthony Diviase Mora's house in Ogden.
Although we may allow for someone knocking on the door, we do expect that items on the front door themselves are protected, she said.
But federal prosecutors insist no warrant is needed to swab a doorknob and run the test - called an Ionscan - to detect whether occupants and visitors have been in contact with drugs. The exterior of a home cannot be expected to remain untouched, they say, as friends, solicitors, proselytizers, campaign workers and delivery people come to the door.
Assistant U.S. Attorney Leshia Lee-Dixon pointed out that visitors to Mora's home were directed by a sign to go around to the back door. The invitation meant officers could touch the door, she wrote in a court filing.
Mora did not have a reasonable expectation of privacy in the door handles to his screen or inside back doors, Lee-Dixon wrote.
In an Ionscan, a sample is taken by rubbing a sterile cloth over a surface to collect residue. The swab is placed in a machine that analyzes particles and gives an alert when certain substances are found, such as cocaine and methamphetamine.
The technology is used at airports, including Salt Lake City's International Airport, to check suitcases for explosives.
Defense attorneys contend police using the mass spectrometry technology at a home must get a warrant first, by showing a judge other, independent evidence of illegal narcotics or firearms.
Lawyer Jon Williams, who is representing Troy Miller of South Salt Lake city, said in a brief that the front door is protected from unreasonable searches. He added: "The doorknob is the most sacrosanct part of the [home]. Its sole purpose is to gain entry."
Utah appears to be at the forefront of the legal debate, with at least three pending Ionscan challenges in U.S. District Court in Salt Lake City:
Mora was arrested by Ogden police in December after officers allegedly found a box of bullets in his home. He is awaiting trial on a charge of possession of ammunition by a convicted felon.
Dennis Daybell, 51, of Magna, is charged with possession of methamphetamine with intent to distribute and illegal firearm possession. Police searched his home in April.
Miller, 33, is facing five counts of possession of controlled substances and aiding in the manufacture and sale of methamphetamine. His home was searched in March.
The cases all request that evidence from the homes be tossed out because police used the results of Ionscan tests, among other factors, to get warrants.
The only appellate ruling in such a case is from the Virgin Islands. In 1999, a trial judge threw out the analysis of a swab taken from a home's screen door, saying the search of the doorknob for marijuana residue violated the Fourth Amendment.
Appellate judges decided the case on other grounds, without examining the test.
In Utah, Judge Ted Stewart took a similar stand, ruling in August that the Ionscan test of Mora's doorknob required a warrant. He cited a 2001 U.S. Supreme Court opinion that required Oregon police to get a warrant before using thermal imaging technology, which senses the use of heat lamps.
With evidence of heat coming off the walls and the roof of a house, the officer obtained a search warrant and arrested the occupant on charges of growing marijuana. Taking the sample from Mora's door was similar, Stewart wrote. "The swab of the outside of the doorknob reveals something about the details of the interior of the home that is unknowable without physical intrusion - that persons who have handled drugs have entered," the judge said.
However, he upheld the warrant to search Mora's home, saying other evidence provided probable cause.
But his colleague, Judge Tena Campbell, said the Ionscan test differs from thermal imaging and reveals nothing about the inside of a house.
"Rather, use of the Ionscan machine is analogous to use of a trained dog to sniff and indicate the presence of narcotics," she wrote in July, refusing to throw out the evidence against Daybell.
Miller's challenge is pending before Judge Dale Kimball.
The American Civil Liberties Union of Utah considers such tests problematic when used in prisons or schools, according to executive director Dani Eyer. She said some penal institutions test the hands of all visitors, even if there is no reason to suspect they might have tried to smuggle in drugs.
"Our question was what happens when it's positive. Is due process available?" Eyer asked.
She also worries about false positives, saying poppy seeds, chlorine diaper wipes and medicines have been incorrectly analyzed as illegal substances.
However, Todd Wheeler, a special agent for the Drug Enforcement Agency and a former chemist, described the tests as "presumptive," giving law enforcement a preliminary indication of drugs. After an Ionscan returns a positive reading, other tests are conducted to confirm the substance, he said.
He cited a 2001 U.S. Supreme Court opinion that required Oregon police to get a warrant before using thermal imaging technology, which senses the use of heat lamps.
With evidence of heat coming off the walls and the roof of a house, the officer obtained a search warrant and arrested the occupant on charges of growing marijuana. Taking the sample from Mora's door was similar, Stewart wrote. "The swab of the outside of the doorknob reveals something about the details of the interior of the home that is unknowable without physical intrusion - that persons who have handled drugs have entered," the judge said.
That ruling is absurd. There is no difference, except for frequency of course, between IR light and visible light. The ruling is saying, essentially, that police may not use technological aids to vision...in a reductio ad absurdum, police may not use corrective eyeglass lenses. Only that which is visible to the naked eye alone is admissible...
Now, for the case of the swab, that is moving into a more protected area. All matter (above temperatures above absolute zero) emits "light" - see Planck's work on blackbody emission. Seizing residue off of a doorknob is less protected - it's not like garbage or sewage, which the subject knowingly puts out of his/her home. It is, however, on a publicly-accessible surface...
As evidence, this is as worthless as a Ouigee Board and should be routinely thrown out.
SO9
Suppose a handyman, postman, or even a passing burglar touches my doorknob and leaves traces of drugs on it, and the police do a swab and find a positive result. (And this positive is confirmed by other tests, because there really are drug traces there.) This fact alone is sufficient for a search warrant that would give police proper authority to enter and search my residence?
Thermal vision units are not "commonly used" and are therefore excludable. Eyeglasses aren't.
As for the swab, my door knob is on private property - a police officer needs either my permission, probable cause or a warrant to walk up my steps to get to the door knob. Swabbing the knob amounts to a fishing expedition to get probable cause.
Not true. That person(s) who have handled drugs have handled the door knob. Or that people who have handled currency or other things with traces of drugs, have entered or merely handled the door knob. Or that someone has applied solutions of drugs to the doorknobs as a "prank" or to ensure a positive result, and who then called police.
New word: "curtilage": The enclosed area immediately surrounding a house or dwelling.
I tend to agree. The fact they say it is a PUBLIC area means ANYONE in the PUBLIC can have touched the thing. Could be the teenager selling school magazines for all anyone knows. I would love to take more drug dealers off the street but this method jumps to assumptions that would result in a benefit of doubt.
If the police believe that they can have access to the doorknob to collect evidence without violating somebody's rights, then they also have to believe that ANYBODY ELSE can also use that same doorknob, without permission or knowlege of the owner, to contaminate it.
Let's test this out first in random, approximately monthly unannounced tests of every judge, cop, legislator, and government attorney in every jurisdiction that proposes to adopt the system.
If a year or so of that works out all the false positive bugs, and creates a database showing reliability, then it may be ready for us to discuss for the citizenry.
And we'll be sure to put to trial everyone who comes up positive in the test.
Of course not, at least not right now. It is evident in the previous post that it was only one of the factors used to get the warrant, and the Judge upheld the warrant without even using that as part of the evidence. It is only one factor, much like a rumor or an anonymous call. There would have to be several other factors involved before a warrant would be issued to breach the confines of your house.
It is only a matter of time before that kind of search and seizure is made legal. Keep the present political climate and officials and it will be here sooner than later.
Scalia wrote the Kyllo decision, and it was pretty spot on. You should read it. A snippet:
But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house--and a satellite capable of scanning from many miles away would pick up only visible light emanating from a house. We rejected such a mechanical interpretation of the Fourth Amendment in Katz, where the eavesdropping device picked up only sound waves that reached the exterior of the phone booth. Reversing that approach would leave the homeowner at the mercy of advancing technology-- including imaging technology that could discern all human activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.SOURCE: Kyllo v. US
I'd like to see one of the TV news magazines go to the homes of such people with the same Ionscan and their camcorders.
My thoughts exactly. I'd bet at least one of the maintenance men at my apartment complex would be likely to leave some "drug residue" on my door handle. Should that be considered evidence enough for a search?
Yeah, I had to look that one up too.
Leaving aside the question of whether the doorknob swab qualifies as a search or seizure, I don't think that substances on the doorknob, standing alone, are sufficient to establish probable cause. There'd have to be other evidence to support a warrant.
Well, we do already for some frequencies.
We have opaque building materials, and blinds, curtains, or shades, for visible light. A well-insulated building won't emit infrared over the expected Planck distribution for its temperature.
As for radio, UV, X-Ray, and gamma forms of electromagnetic radiation, there are fairly straightforward ways to block transmission of those as well.
If a person has a window open, that is not shuttered, do they retain an expectation of privacy? Or do they have to draw their curtains?
I tend to agree. Even as much as I hate drugs, I wouldn't issue a warrant if that's all the police had.
Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment "search," and is presumptively unreasonable without a warrant. Pp. 3-13.Citizens should not have to participate in a technical arms race with the powers that be in order to keep my curtains drawn.
>>Mora was arrested by Ogden police in December after officers allegedly found a box of bullets in his home. He is awaiting trial on a charge of possession of ammunition by a convicted felon.<<
Wipe the door knob looking for 2nd Amendment violations!
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