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Tuesday, January 27, 2015

USA - Warrantless Radar Searches


Both USA Today and the Daily Mail reported yesterday that at least 50 American police forces, including the Federal Bureau of Investigation and the U.S. Marshals Service, have been using a device called Range-R (pronounced ranger) Radar to conduct warrantless searches of homes for at least two years.
The Range-R is manufactured by L-3 Communications Holdings, a Torrance, California company that manufactures command and control, communications, intelligence, surveillance and reconnaissance software and products and avionics for the Department of Defense, the Department of Homeland Security, various intelligence agencies and NASA. The Range-R was developed as a military product. According to USA Today, L-3 didn’t begin marketing the device to police forces until 2012. According to promotional materials distributed by L-3, the company has been marketing the device to police forces for at least five years.


According to an L-3 brochure published in 2010:
“L-3’s Range-R is a lightweight handheld radar system designed to detect people through walls. Within seconds, Range-R informs the user of the presence of moving or near-stationary personnel and the distance, or range, to the person. Range-R provides vital intelligence necessary to safely undertake a wide variety of law enforcement and search and rescue operations.
“Range-R detects even the slightest movements, including those of normal human breathing, with a probability of detection greater than 95 percent, while maintaining a false alarm rate (FAR) of less than 5 percent. With an effective range of up to 50 feet, the system can ‘see’ through walls, floors and ceilings constructed of reinforced concrete, cement block, wood, brick, adobe, glass and other common non-metallic construction materials.”
The device costs $6,000. The Marshalls have admitted to buying 30 of them.
According to the brochure, five years ago L-3 was selling the device to:
“First Responders: Hostage situations, stand-offs, natural disasters and burning buildings are a few examples of scenarios where Range-R’s see-through-the-wall technology can be utilized to locate persons hidden from view – without putting the lives of first responders in unnecessary danger. Range-R enables police, SWAT, emergency medical teams, firefighters and other special operations teams to efficiently and effectively allocate their precious time and resources when split second decisions must be made.
“For example: police and/or SWAT units can determine the presence and location of assailants or hostages in a building. Search and rescue teams can locate injured people inside buildings. Firefighters can quickly determine whether people are trapped in a building. With near immediate analysis and results, Range-R provides first responders with critical information that may make the difference between life and death.”


Police use of the device came to light in a Tenth Circuit Court of Appeals ruling in a case titled United States v. Steven J. Denson. The ruling was filed on December 30, 2014. In that case, the government appealed the suppression of evidence obtained during a warrantless search in Wichita, Kansas. The Tenth Circuit explains:
“Steven Denson was on the lam. After his conviction for armed robbery and a spell in prison he quit reporting to his probation officer as his sentence required. For a time, Mr. Denson appeared gone for good. But authorities weren’t quick to give up their search and eventually they found his name on a residential Wichita utility account. With an arrest warrant in hand they showed up at the listed address. When a handheld Doppler radar device and other evidence suggested Mr. Denson might be present inside the house, the officers entered. Quickly they found Mr. Denson along with a stash of guns, guns he lacked the right to possess by virtue of his felony conviction. This led Mr. Denson to plead guilty to a federal firearm charge. At the same time, he preserved the right to appeal the district court’s denial of his Fourth Amendment motion to suppress. Exercising that right now, he seeks reversal….”
The appeal was brought by an Assistant Federal Public Defender named Timothy J. Henry on Denson’s behalf. A three judge panel ruled that the search did violate the Fourth Amendment to the Constitution. The Fourth Amendment prohibits unreasonable searches and seizures and requires all search warrants to be approved by a judge. The original intent of the Amendment was the historic notion that “a man’s home is his castle.”


Although L-3 has been selling the device to “first responders” and Swat for five years, no court seems to have heard of it until recently. In the decision, Judge Neil M. Gorsuch wrote:
“The government brought with it a Doppler radar device capable of detecting from outside the home the presence of ‘human breathing and movement within.’ All this packed into a hand-held unit ‘about 10 inches by four inches wide, 10 inches long.’ The government admits that it used the radar before entering – and that the device registered someone’s presence inside. It’s obvious to us and everyone else in this case that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions. New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights.”
Gorsuch also cited a 2001 ruling by the Supreme Court in a case titled Kyllo v. United States. In that case, the government used a thermal imaging device outside the Florence, Oregon home of a man named Lee Kyllo. The government suspected Kyllo was growing marijuana inside and the device indicated an unusual amount of heat, presumably from broad spectrum light sources, was leaking out his house. In that case a majority of the court, with Justice John Paul Stevens dissenting, ruled the use of the device to spy on Kyllo was illegal. In the Court’s ruling, Judge Antonin Scalia wrote, “Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment ‘search,’ and is presumptively unreasonable without a warrant.”

Militarized Police

Although the Tenth Circuit did not address the issue, the widespread deployment of military devices like the Range-R to increasingly militarized police departments raises a basic question: Where exactly is the line between martial law and “civilian” militarized police forces? Since the War on Global Terror began a dozen years ago. militarized police have routinely short circuited the concept of due process to conduct warrantless searches and punitive raids on people the police distrust or of whom they disapprove.
In a landmark Supreme Court decision from 1866 titled Ex parte Milligan, the Court ruled:
“The nation began its life in 1776, with a protest against military usurpation. It was one of the grievances set forth in the Declaration of Independence, that the king of Great Britain had ‘affected to render the military independent of and superior to the civil power.’ The attempts of General Gage, in Boston, and of Lord Dunmore, in Virginia, to enforce martial rule, excited the greatest indignation. Our fathers never forgot their principles; and though the war by which they maintained their independence was a revolutionary one, though their lives depended on their success in arms, they always asserted and enforced the subordination of the military to the civil arm.”
“Martial law … destroys every guarantee of the Constitution.”

“Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.”