NCJ Number
53677
Journal
UNIVERSITY OF ILLINOIS LAW FORUM Volume: 1977 Issue: 4 Dated: (1977) Pages: 1167-1204
Date Published
1977
Length
38 pages
Annotation
JUDICIAL DECISIONS IN CASES INVOLVING THE QUESTION OF WHETHER THE RIGHT TO PRIVACY IS ABRIDGED WHEN POLICE USE SENSE-ENHANCING OR SENSE-REPLACING DEVICES IN CRIMINAL INVESTIGATIONS ARE ANALYZED.
Abstract
THE DEVICES IN QUESTION INCLUDE FLASHLIGHTS, BINOCULARS AND TELESCOPES, BEEPERS (ELECTRONIC DEVICES THAT ENABLE POLICE TO LOCATE WHATEVER THE DEVICES ARE ATTACHED TO), ULTRAVIOLET LAMPS (USED TO DETERMINE WHETHER A SUSPECT HAS HAD CONTACT WITH A FLUORESCENT POWDER-DUSTED INCRIMINATING OBJECT), MAGNETOMETERS (USED TO DETECT CONCEALED WEAPONS), AND DOGS TRAINED TO DETECT NARCOTICS. THE LEGALITY OF POLICE INVESTIGATIVE USE OF THESE DEVICES HAS BEEN LITIGATED FREQUENTLY AND WITH CONFLICTING RESULTS. ELEMENTS THAT HAVE INFLUENCED COURTS TO DETERMINE THAT A SEARCH HAS OCCURRED IN CASES INVOLVING EACH TYPE OF DEVICE ARE ISOLATED. IT IS CONCLUDED THAT, IN ANALYZING THE SEARCH ISSUE, MANY COURTS ACTUALLY HAVE ADOPTED A MORE FLEXIBLE APPROACH THAN IS COUNTENANCED BY THE U.S. SUPREME COURT. THE ADVANTAGES AND POSSIBLE DANGERS OF THIS FLEXIBILITY ARE CONSIDERED, AND AN APPROACH TO ESTABLISHING A THEORY OF FOURTH-AMENDMENT ADJUDICATION IN SENSE-ENHANCING DEVICE CASES THAT IS BOTH FLEXIBLE AND CONSISTENT IS SUGGESTED. THE SUGGESTED APPROACH INVOLVES A LIMITED SEARCH CONCEPT, WHICH WOULD RELIEVE THE STRAIN THAT THE U.S. SUPREME COURT'S MONOLITHIC MODEL OF THE FOURTH AMENDMENT HAS IMPOSED ON THE COURTS IN DECIDING SENSE-ENHANCING DEVICE CASES. THAT MODEL REQUIRES THAT, IF AN INVESTIGATIVE PRACTICE CONSTITUTES A SEARCH, THE COURTS MUST SUBJECT IT TO THE SAME CONSTRAINTS (PROBABLE CAUSE AND WARRANT) THAT APPLY TO THE ACT OF ENTERING A SUSPECT'S HOUSE AND RUMMAGING THROUGH HIS OR HER POSSESSIONS. UNDER THE SUGGESTED APPROACH, THE COURTS COULD REGULATE POLICE USE OF SENSE-ENHANCING DEVICES THAT ARE NOT INTRUSIVE ENOUGH TO REQUIRE PROBABLE CAUSE AND A WARRANT BY IMPOSING AN OBJECTIVE EVIDENTIARY STANDARD TO ENSURE THE REASONABLENESS OF THE INTRUSION. IF THE COURTS DO NOT FIND IT REASONABLE OR FEASIBLE TO REQUIRE POLICE TO HAVE PROBABLE CAUSE AND A WARRANT BEFORE INITIATING AN INVESTIGATIVE PRACTICE USING A SENSE-ENHANCING DEVICE, THE COURTS MAY CLASSIFY THE PRACTICE AS A LIMITED OR EXPLORATORY SEARCH. THIS APPROACH WOULD PERMIT THE POLICE TO UNDERTAKE A LIMITED SEARCH USING A SENSE-ENHANCING DEVICE IF THEY ARE AWARE OF SPECIFIC, ARTICULABLE FACTS THAT WOULD LEAD A REASONABLE PERSON TO BELIEVE THAT A CRIME HAD BEEN OR WAS BEING COMMITTED. (AUTHOR ABSTRACT MODIFIED--LKM)