Sneaking Past Kyllo

February 12th- Panel 10

By: Joseph Gracely

Sneaking Past Kyllo

Link to article:

In 2001 the Supreme Court held in Kyllo v. United States that police use of thermal imaging technology to detect heat signatures within a person’s home was unconstitutional.  In doing so, the Court noted that the device in that case was “not in general public use.”  The Court also indicated that radar-based systems then being developed would be covered by its ruling in Kyllo.

Now those radar-based systems are here.  And contrary to the apparently clear holding in Kyllo, they are out on the streets providing officers with data about the presence and movements of suspects behind closed doors.

As USA Today reports, the Range-R handheld radar sensor is currently being used by at least 50 U.S. law enforcement agencies, among them the FBI and U.S. Marshals Service.  While the detectors don’t display images of what’s behind a wall, they are highly sensitive and can pick up on movements as slight as breathing from more than 50 feet away.

Until December 2014, when the use of the devices came to broader attention, police used the radar sensors secretly, without search warrants, presenting potentially great Fourth Amendment concerns.  This is particularly so given the difference in technology between radar and thermal imaging.  While thermal imaging arguably involves only the detection from outside the home of heat penetrating out through the walls – as the government actually argued in Kyllo – radar is something different.  With radar, there is – at some level – a penetration of the home by radar waves from the device.  Given the holding in Kyllo, it’s unclear how such warrantless radar use could survive constitutional scrutiny.