Police use of radar to see inside homes: the lawsuit that made it known

By: The VNN Team  //  Legal, US News

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by Carol Thompson

Steven Denson was on the lam. After his conviction for armed robbery and a spell in prison he quit reporting to his probation officer as his sentence required. For a time, Mr. Denson appeared gone for good. But authorities weren’t quick give up their search and eventually they found his name on a residential Wichita utility account. With an arrest warrant in hand they showed up at the listed address. When a handheld Doppler radar device and other evidence suggested Mr. Denson might be present inside the house, the officers entered. Quickly they found Mr. Denson along with a stash of guns, guns he lacked the right to possess by virtue of his felony conviction.

While it sounds like the beginning of a science-fiction thriller, the above passage is the first paragraph of a Dec. 14, 2014 ruling by the federal appeals court in Denver in the case of the United States of America v. Steven J. Denson.

Yesterday, USA Today reported that at least 50 U.S. law enforcement agencies have secretly equipped their officers with radar devices that allow them to effectively peer through the walls of a house to determine if anyone is home.

The devices are used by the FBI and U.S. Marshals Service among others. According to USA Today, the radar systems have been in use for more than two years with little notice to the courts and no public disclosure as to when or how they would be used.

The radar uses radio waves to zero in on movements as slight as human breathing from a distance of more than 50 feet. The device can detect whether anyone is inside the home and where they are located and if they are moving.

In its decision, the court stated, “…the government brought with it a Doppler radar device capable of detecting from outside the home the presence of ‘human breathing and movement within.’ All this packed into a hand-held unit… The government admits that it used the radar before entering- and that the device registered someone’s presence inside.”

The decision continues, “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. New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights.”

The court added that it has little doubt that the radar device will soon generate many questions “for this court and others…”

The decision notes, “We know the radar suggested the presence of someone inside. But how far inside the structure could it see? Could the device search the whole house and allow the officers to be sure that they had located every person present? Could it distinguish between one person and several? We just don’t know.”

The court raised the issue several times in its decision, noting that the government isn’t entitled to perform searches to guard against phantom risks, ones they know don’t exist.

“If radar (or any other investigative technique for that matter) dispels the possibility of a hidden danger, a search predicated on that possibility becomes constitutionally unreasonable. The government cannot take the benefit of a questionable radar search without having to live with its costs.”

Image: Flickr: Francois Dube