It doesn't apply to this case loreng. The supreme court acknowledges plain sight searches because an officer of the law can't be expected to avert their eyes when passing an area. I'm not aware of a specific ruling but I'd submit that the same would apply to your sense of smell.


Actually that isn't correct, the original articles cited say that both homes and mosques were being monitored. The very first sentence of the post reads:

CJ you are correct in both points, the first is my mistake. As for homes, and driveways, that is questionable at this point. Street side detection is not only legal, but required by law.

I have found nearly 300,000 hits for EPA, pollution, detection, and radioactive. It seems that not only does the government monitor water, solids, and air detection for radioactive material, but the it is required by government to do so. In fact when the Federal government attempted to curb such detections the courts have ruled against them. Ordering the government to continue to monitor for such pollution. Why because radioactive material is hazardous to the environment and people.

So I would state that radioactive material is not protected since it is itself hazardous, it is required under our current laws, the detection devises do not 'intrude' but sample radioactive air levels.

I was referring to the questions for debate, which do not mention homes (I realize the intent was there but the subsequent questions relate to religion...):

1. Is the FBI out of line for monitoring mosques?

2. Should the FBI also profile sites owned by other religious groups?

3. If such probing is acceptable, why not make the same assumptions in other public ventures (such as airports or sporting events)?

True of an officer's olfactory senses, but what about a bloodhounds? Bloodhound “testimony” in trailing from the scene to a residence is sufficient probable cause to get a warrant to enter in many cases. This isn't viewed as a intrusion into the privacy rights of the occupant, as they left a chemical scent trail to their home. Are bloodhounds with such skills generally owned? Doesn't seem to infringe on the ability of law enforcement agents to use those dogs within the constraints of respecting constitutional rights. Seems to me if the contents of my house are leaving a radiation trail this is sufficient probable cause also and no violation of my privacy rights.

Do you have a specific case Mrs P? The decisions cited backing up the "plain sight" portion of our common law refer to humans, not animals. If an officer got a warrant based on walking a trained bloodhound by your house I'm willing to bet that a smart defense attroney could get all evidence uncovered thrown out based on that.

This side discussion is really irrelevant though, Kyllo specifically mentions the same scenario as we find here.

I would like to add that you must also consider the precident set by overturning Kyllo. If Kyllo were overturned, then our privacy would be at the mercy of the advances of technology. Scalia even wrote about this in the decision. The rate in which intrusive technology will be able to see what was once considered private will always outpace our measures to protect our privacy. Like I said, it's a slippery slope but one you must consider.

1) There should be no problem so long as the area in which the testing is conducted is either public property or private property held open for use by the public [and maybe even the proverbial "open field"]. To distinguish this matter from pot-growing in an Oregon home, you have to smoke pot or have your car hit by a stoned motorist before there is any risk of harm to you [the first is your own assumed risk and the latter, well, if Mr. Stoned Motorist is driving in an aberrant manner, that's probable cause for a stop and some inquiry and the risk of harm may thereby be eliminated]. Radiation "breezing" through the neighborhood is a whole other matter, since unless one has the necessary machinery, one will never know that one will soon be glowing in the dark and sprouting that third arm. I would otherwise submit that this matter is more like Illinois v. Caballes than Kyllo. Please see:

http://www.law.cornell.edu/supct/html/03-923.ZS.html

"Held: A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment. Pp. 2—4."

The problem with the heat imaging device is that it might also disclose LAWFUL information. The only lawful information that might possibly be communicated here concerns those undergoing chemo/radiation-therapy, and all "the man" would know is that you are undergoing chemo/radiation-therapy. And it was on precisely this basis that the Supremes distinguished Kyllo:

"Critical to that decision was the fact that the device was capable of detecting lawful activity -- in that case, intimate details in a home, such as "at what hour each night the lady of the house takes her daily sauna and bath." The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment."

That was the polite way of saying that drug-sniffing dogs are one thing, but pervs with heat imaging devices getting their rocks off while watching the heat image of you and yours during lovemaking is entirely another. And as some blogger aptly put it, if the cops and science could come up with a heat imaging device that only imaged the heat from marijuana plants, then Kyllo would be distinguished, since no one has a reasonable expectation of privacy regarding their possession of illegal contraband.

And for the icing on the proverbial cake, in US v. Place, the Supremes held that a trained drug-sniffing dog is unique in that the only use for the same is to detect the presence of narcotics and so there was no reasonable expectation of privacy re the same.

2) The FBI should conduct the same monitoring whenever the same appears to be reasonable to them.

3) I would hope that we are already conducting such tests in other locales such as airports and at sporting events.

Edited to add:

http://caselaw.lp.findlaw.com/scripts/getc...l=462&invol=696

"...The investigative procedure of subjecting luggage to a "sniff test" by a well-trained narcotics detection dog does not constitute a "search" within the meaning of the Fourth Amendment. Pp. 706-707. "

I don't have any specific cases in mind, but I've heard of several in the past. Bloodhounds are used to find kidnap victims and I've heard of cases in which victims (sometimes living, sometimes dead) have been recovered in various locations, both public and private. If a bloodhound follows an abducted child's trail to the house of a kidnapper I believe a search warrant is justified. I cannot see any reasonable explanation that it wouldn't be.

I disagree. In the case of the bloodhound, the perpetrator left a chemical scent trail, and in the case of a nuclear bomb the perpetrator would be leaving a radiation trail. I don't think the comparison between measuring the toxic radiation eminating from a house (or other private property), contaminating the environment and everyone living around it (with the intent of killing hundreds of thousands as well) is in any way comparible to measuring the amount of heat within a house in order to prove that the resident is growing marijuana. To my way of thinking the blood-sniffing dog is a closer comparison.

Your way of thinking however revolves around the particulars of the previous cases in question, not in the standards set by the Kyllo decision, or the laws that were being challenged. The Kyllo decision was drafted in such a way not to guarantee to privacy from searches in general, but to prevent the encroachment of privacy by searches conducted with non-invasive technology. That is "cause of action" for the case, and rational for the ruling, and the underlying principle of the decision.

In short, whether you agree with the interpretation that I have presented in this thread or not, the decision was written precisely with this sort of case in mind.

The Bill of Rights are not absolutes. The courts have ruled time and again that there are limitations to those rights. Free speech is not absolute, incitement to commit insurrection, rioting, and other criminals acts is not protected. Nor is the right to shout 'Fire' in a crowded place protected speech.

Freedom of religion also is not absolute, just ask the Mormons. In fact you will find that each and every right that we possess is tempered with conditions. The number one condition is public safety. It has precedence over individual freedom. The courts side with safety of the environment and community over individual rights.

The use of technology enhanced detection devices to protect the community from hazardous materials goes back to 1954. It has resulted in numerous searches of private property with search warrants generated by these detection devices alone. The courts have ruled in every single case that they were valid searches, and the convictions that resulted due to theses searches have been upheld as legal.

The courts have determined that hazardous material including radioactive matter are not protected from such searches. Does this mean that they are going to know who is taking chemo-therapy? Of course not, since the level would not be detectable from any sort of distance. It would detect high levels of radiation from outside of buildings, but at that level that would endanger the community at large and yes the courts have ruled that those detections with technological enhanced devices are both legal and required under Federal law.

Kyllo does not supersede public safety from hazardous materials.

Excellent. Just provide me with those court cases or any relevant documentation which shows a clear parallel between the facts you are discussing and the case up for debate here and I will be on my way. I for one have never heard of the Supreme Court or Federal Law mandating searches for radioactive materials, nor am I familiar with any case which supercedes the Kyllo decision, so please bear with me and provide a paper trail so I can learn.

You have to be joking right?

I will assume you are not so how about:
Atomic Energy Act
Uranium Mill Tailings Radiation Control Act
Low-Level Radioactive Waste Policy Act
Waste Isolation Pilot Plant Land Withdrawal Act
Nuclear Waste Policy Act
Nuclear Waste Policy Amendments Act
Clean Air Act
Indoor Radon Abatement Act
Energy Policy Act
Safe Drinking Water Act
Marine Protection, Research, and Sanctuary Act
Clean Water Act
Public Health Service Act
Resource Conservation and Recovery Act
Comprehensive Environmental Response, Compensation, and Liability Act

Thank you for the list. However, I was kind of hoping that you would take the time to demonstrate how these laws allow for the unwarranted searches of private residences without probable cause. You are obviously more familliar with them than I am, so it would most likely be considerably faster than having me just read through each one in its entirety.

What you have done is say, "look, all these laws talk about radiation and monitoring." That's all well and good, but it is a poor response to my specific inquiry:



You have not provided any legal decisions (which is fine), nor have you connected any of these laws to the case at hand. We all know that the government has the authority to regulate radioactive materials. The government can also regulate narcotics... that does not give it the right to use sense-enhancing technology to monitor private residences. So again, please provide some sort of link between the littany of regulations you mentioned and hte particulars of this case.

You have asked for several thousand documents. And yes I am not kidding. There is a 17 volume set of rules governing the detection, sampling, and enforcement of these laws. Can I provide them, no they won't fit. EPA Site should be able to supply you with all of the information. And it does give them the right to use any technology they want to monitor any and all property in the entire country. There is no exempt property from these regulations.

The number of cases run in the hundreds of thousand as well.

If you know this to be a fact, then surely you must know where I can find it to verify. Personally I find it hard to believe that regulations allow for the complete suspension of the fourth amendment. Remember, the government wasn't monitoring radiation, it was monitoring for radiation. Big big difference.

The EPA runs a program called RadNet which monitors radiation levels. RadNet homepage There are plans to expand RadNet to cover more geographical area, according to that site.

Here is an article which (unconvincingly) denies that Muslims were targeted (but an official does admit that mosques and other sites were measured). The article says the monitoring ended in 2003.

Here is another article which says "air monitoring is fair game".

Both of these articles were linked from the EPA website here.