At least 50 local law enforcement agencies—and the United States Marshals—have acquired a type of handheld radar that allows cops to scan through walls to detect a human target.
According to a Tuesday report by USA Today, a New York-based company called L-3 Communications has sold about 200 of its Range-R devices “to 50 law enforcement agencies at a cost of about $6,000 each.” L-3 did not respond to Ars’ request for comment on Tuesday evening. The company, which primarily sells to governments, has profited over $4.3 billion between 2009 and 2013 alone.
A cursory search of federal spending shows that the US Marshals have also spent over $52,000 on the devices since March 2012, with the most recent purchase being nearly $6,000 in September 2014.
Neither the Department of Justice, nor the FBI, nor the Drug Enforcement Agency, nor the US Marshals immediately responded to Ars’ request for comment late Tuesday.
On its website, L-3 describes the Range-R as having “a nominal range of 50 feet even when penetrating concrete walls up to one foot thick,” and can “see” in 160 degrees. The company also trumpets: “The sensitivity of the Range-R is sufficient to detect people breathing, making it difficult for individuals to hide from Range-R.”
In January 2013, the National Institute of Justice, the research wing of the Department of Justice, wrote on its website that it “supported the development of the first standoff through-the-wall surveillance device approved for law enforcement use…that can, from a distance, map and image the internal structure of a building and locate living personnel inside the structure. It can detect a motion as small as the that of a person breathing.”
An October 2012 study by the NIJ identified a number of radar models, including the Range-R.
The agency concluded:
Only a handful of devices are currently [Federal Communications Commission] certified, but other devices have been fully developed for use by the military and new devices currently being developed may be FCC certified for use by state and local law enforcement organizations in the near future.
Overall, [through-the-wall-surveillance] technologies offer a unique and important capability to law enforcement and first responders by providing information about their surroundings and tactical operations.
Cmdr. Sid Heal (retired), who used to evaluate technology for the Los Angeles Sheriff’s Department, told Ars that he had “experimented” with the Range-R years ago, but thought that at the time it was too expensive.
“Our original intent was to introduce it in situations which would not likely to arouse irritation, such as hostage rescue situations,” he e-mailed Ars. “That said, if we have an arrest warrant for a suspect inside a location, it is a lot less intrusive to make sure someone is inside and non-compliant before we lawfully tear the door down.”
Come back with a warrant
While the NIJ’s evaluation seems primarily concerned with FCC compliance, it does not at all address potential violations of the 2001 Supreme Court decision known as Kyllo v. United States. In a 5-4 decision, the court found that law enforcement does require the use of a warrant before using an infrared sensor device to peer through the walls of a home.
As Justice Antonin Scalia wrote in his majority opinion:
Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.
Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause–and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced.
Legal experts told Ars that use of a device like the Range-R could be in violation of the Kyllo decision, and perhaps even an even more recent decision.
“Does Kyllo apply here? I think so insofar as the suspect had a reasonable expectation to privacy in his home,” Brian Owsley, a former federal judge who is now a law professor at Indiana Tech, e-mailed Ars.
He pointed to a 2013 5-4 Supreme Court decision (Florida v. Jardines) in which the court found that law enforcement could not send a drug-sniffing dog to the porch of a drug suspect absent a warrant.
“Turning to Jardines, that case is also illustrative here in that it provides a second basis for finding in favor of the defendant because the use of the device is arguably a trespass,” Owsley continued. “Law enforcement is actually sending something into Denson’s home. Indeed, sending the sensor into the residence is arguably more invasive that measuring the heat coming out of the house in Kyllo. In the end, however, for both individual’s the sanctity of the home is violated with a warrantless search.”
United States v. Denson is a federal firearms case—in September 2013, his attorney’s filed a motion to suppress evidence. There, as USA Today reported, a deputy US Marshal testified in court that the Range-R device could detect a human presence through walls. Steven Denson of Kansas pleaded guilty and then was sentenced to 18 months in prison in December 2013. He then appealed to the 10th Circuit Court of Appeals, which upheld the search in a December 30, 2014 decision.
“While it is our position to not discuss or disclose any investigative techniques, the Department of Justice is currently reviewing the Tenth Circuit Court of Appeals ruling,” Patrick Rodenbush, a spokesman for the Department of Justice, told Ars by e-mail.
Still, Linda Lye, a lawyer with the American Civil Liberties Union of Northern California similarly agreed with Owsley’s analysis.
“The Supreme Court has made clear that the home has very special status under the Fourth Amendment,” she e-mailed. “That is where our privacy interests are at their highest. Even using a dog to sniff around the immediate exterior of the home presumptively requires a warrant. Using a sophisticated surveillance tool to detect information about the interior of the home clear does as well.”
Meanwhile, Hanni Fakhoury, a former federal public defender and a current attorney at the Electronic Frontier Foundation, told Ars that he had never heard of these handheld radar devices prior to USA Today’s reporting. He said that in the case of Denson, the court sidestepped the underlying issue.
“What’s remarkable to me is that the US Marshals would use the device without a search warrant when it so clearly falls within Kyllo,” he said by e-mail. “The more interesting question is whether other agencies buying these devices are using them without a search warrant, something that’s not entirely clear yet.”