LawMeme LawMeme Yale Law School  
LawMeme
Search LawMeme [ Advanced Search ]
 
 
 
 
On the Constitutionality of Geiger Counter Searches
Posted by Ernest Miller on Tuesday, June 18 @ 10:19:28 EDT Civil Liberties
UCLA School of Law's Professor Eugene Volokh has a very interesting piece in Slate concerning surveillance technology and the Fourth Amendment (The Fourth Amendment Meets the War on Terror) [Note Prof Volokh's great collaborative blog, The Volokh Conspiracy]. Although I agree with much of Prof. Volokh's reasoning, I don't believe his example makes the case.

In this article. Prof. Volokh proposes the following hypothetical:

The government learns there might be a dirty bomb hidden in your town, so the police start driving around with Geiger counters, looking for houses that have more radioactivity than normal. (Assume this is practically feasible, though there may be various potential difficulties with it.) Enter the courts: "No, no, no," they say, "that's an unconstitutional search, because it is an effort to determine what's in people's homes without probable cause and a warrant."


The reason for this speculation is that, in an important case decided last year (Kyllo v. United States), the Supreme Court determined that infrared surveillance of a home was a "search" that required a warrant to be constitutional. Taking a broad reading of the decision (which is justified since Kyllo is a broad ruling), Prof. Volokh reasons that police sweeps of a neighborhood streets using geiger counters (such as this nifty device) could be held to be unconstitutional.

Nevertheless, Prof. Volokh rightly concludes that it is unlikely that any judge would prevent the police from trying to find a terrorist's cache of nuclear material. His reasoning is that potential terrorist actions change the balance of Fourth Amendemnt protections: "finding dirty bombs must simply be different from fighting normal crime." While I agree with his analysis that what is a "reasonable" search is dependent on the exigencies of the crime, I am skeptical of a call that we distinguish "terrorist" searches from normal crimes.

In the present scenario, for example, I believe that no change to Fourth Amendment doctrine needs to be made with regard to the use of geiger counters on the streets. As part of his logic, Prof. Volokh states that, "A Geiger counter is sense-enhancing technology that detects information regarding the interior of the home: whether there's an unusual amount of radiation (rather than heat) present in the home." I believe this is an error. A geiger counter measures local levels of radiation. Thus, when using a geiger counter, one isn't detecting information regarding the interior of the home, but the local level of radiation in the street. Using a geiger counter to measure local levels of radiation is similar to using a very sensitive thermometer to measure the local temperature in the street, which is quite unlike even a crude thermal imaging device.

Now, perhaps, a directional geiger counter (rather unusual devices in the first place) directed toward particular homes would be unconstitutional. However, why would one want to use a directional geiger counter in the first place? Presumably, law enforcement only has a general idea of the location of the radioactive materials. Wouldn't they be better off using a regular, omnidirectional geiger counter to localize the materials in the first place? Using such devices, it should be possible to localize the radiation source enough to justify a probable cause search.

Furthermore, I am not sure that there is any expectation of privacy for the production of gamma radiation (the most likely type to be detected from the street). One has to ask, "what the hell are you doing if you are producing significant amounts of gamma radiation in your home?" The fact that one is capable of measuring above-background levels of gamma radiation from the street at all is probably direct evidence of the violation of numerous NRC, OSHA and EPA regulations. In such cases, I don't believe that society is prepared to recognize as reasonable an expectation that gamma radiation levels cannot be measured in the street.

Perhaps there is a need to make adjustments to the Fourth Amendment. However, until a more compelling case can be found, I remain skeptical.

 
Login
Nickname

Password

Don't have an account yet? You can create one. As registered user you have some advantages like theme manager, comments configuration and post comments with your name.
Related Links
· UCLA School of Law
· Eugene Volokh
· Slate
· The Fourth Amendment Meets the War on Terror
· The Volokh Conspiracy
· Kyllo v. United States
· nifty device
· More about Civil Liberties
· News by Ernest Miller


Most read story about Civil Liberties:
New Bill to Work Around Ashcroft v. Free Speech

Article Rating
Average Score: 3.66
Votes: 3


Please take a second and vote for this article:

Bad
Regular
Good
Very Good
Excellent


Options

Printer Friendly Page  Printer Friendly Page

Send to a Friend  Send to a Friend
"User's Login" | Login/Create an Account | 4 comments
Threshold
  
The comments are owned by the poster. We aren't responsible for their content.
Another point (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, June 18 @ 10:47:34 EDT
Geiger counters only measure the amount of radiation. Again, the thermometer analogy is much more appropriate.


[ Reply to This ]

Re: On the Constitutionality of Geiger Counter Searches (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Thursday, June 20 @ 18:40:56 EDT
...the violation of ... regulations However, growing marijuana is in violation of many regulations as well. I think the strong point in your argument is that the Geiger counter is not directed at a specific house., not the above line of reasoning. Also, from Katz: A search does not occur even when its object is a house explicitly protected by the Fourth Amendment unless the individual manifested a subjective expectation of privacy in the searched object, and society is willing to recognize that expectation as reasonable. Considering that the radiation would be harmful to neighbors, et al, I believe one could argue that society would not recognize an expectation of privacy existed. -M


[ Reply to This ]

Re: On the Constitutionality of Geiger Counter Searches (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Friday, June 21 @ 19:15:13 EDT
The Fourth Amendment issues with IR imaging is different than using a radiation monitor.

The geiger counter (which measures ionizing radiation) is not being used to gain insight as to the contents of a house, it is used to determine if the space where the user is standing is exposed to radiation. Radiation is an environmental factor, and though it originates from a source in the home affects everyone exposed to it outside the house.

IR Imaging is a tool which gives insight to the user as to the environment inside the home, and as used in the test case (randomly trolling for heat emissions from grow-lamps), is as uncontitutional as sending police house-to-house and looking in all the windows, trying to see if there is something illegal going on without prior suspicion.

If you find a radiation hotspot, and follow it to it's source (foolish as that may seem), I think that it is justified by resonable cause: the warning of possible attack, and the emission of radiation into a public space, which may in itself be a crime, depending on the level. Wouldn't the police track smoke back to a home and cite a homeowner with an illegal trash fire?


[ Reply to This ]


Leges humanae nascuntur, vivunt, moriuntur
Human laws are born, live, and die


All stories, comments and submissions copyright their respective posters.
Everything Else Copyright (c) 2002 by the Information Society Project.
This material may be distributed only subject to the terms and conditions set forth in the Open Publication License, v1.0 or later (the latest version is presently available at http://www.opencontent.org/openpub/).

You can syndicate our news using the file backend.php