Do You Have Any Privacy From the Police in Texas? Laredo vs. Dallas

If you watched the CBS crime show “Hawaii Five-O” last week, you saw the elite police squad use a device that allowed them to see through the walls of a building and view not only the location of the kidnapping victim but also the location and movements of her captors.

The gizmo read the heat being emitted by the human beings, and it’s not fiction. This is a real machine available to police departments and law enforcement agencies everywhere. It’s called a thermal imaging device and it’s been around for many, many years.  (You can buy one, too, if you want.)

In fact, a thermal imaging device being used by the police was the basis of a case that made its way all the way up to the United States Supreme Court back in 2001. There, Justice Scalia wrote the majority opinion, ruling that law enforcement using a thermal-imaging device from a public street, aimed at a private home, was NOT constitutional and doing so was in violation of the Fourth Amendment. Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001).

Kyllo v. United States: 2001 and Thermal Imaging Scanners of Your Home

In Kyllo, a federal agent up in Oregon back in 1991 (that’s 25 years ago, folks) had an idea that a man named Danny Kyllo was growing marijuana in his triplex apartment. Since Kyllo would need lots of light to grow the weed, he would have to have high-intensity heat lamps set up inside, if he was growing a marijuana crop indoors. So, the federal agent went and got a gizmo called a “Agema Thermovision 210” to help him figure things out. With the device, he scanned the triplex from the comfort of his car as he was parked across the street — and again, while parked out back of the triplex.

The 1991 thermal imaging device, as described by SCOTUS, worked “… like a video camera showing heat images,…” and showed enough heat coming from Kyllo’s home to support the agent’s suspicion there were heat lamps being used inside. The agents went inside the home, took over 100 plants, and arrested Kyllo on one count of manufacturing marijuana, in violation of 21 U. S. C. §841(a)(1). Kyllo, 533 U.S. 27, 29-31.

Danny Kyllo had to take his fight all the way to the United States Supreme Court before his argument that this was an unconstitutional search and seizure was respected — an argument that he first made ten years before, to the trial court judge, in his initial motion to suppress.

Police Also Have Scanners for Breathing Inside Your Home

There’s another similar device, as well, that locates the human beings hidden by walls in homes, apartments, office buildings, condos, whatever, by their breath. It’s called a “Range-R,” and you can read all about it here in a CNET article discussing how police were already using it over three years ago.

See, “Police now ‘see’ through walls and know if you’re home,” by Chris Matyszczyk and published online on January 20, 2015.

Fourth Amendment Requires Judge’s Approval via Search Warrant

Here’s the key thing: it’s not that the police cannot use these things today. There available to buy online, all sorts of privacy invaders, and many aren’t that expensive.  It’s just that private citizens are considered innocent until proven guilty — and we ALL have a constitutional right to assume that behind our home’s drywall structure and insulated windows, we’re safe from being watched by strangers.  Especially the police with all their police powers.

Why? As explained in Kyllo, the Fourth Amendment guarantees the “… right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and subject to “few exceptions,” it requires officers to obtain a warrant before searching a home. Kyllo, 533 U.S. at 31.

It doesn’t matter that the police are quietly sitting somewhere else, like the Oregon agents sitting inside their car across the street from the man’s apartment.

What is an unconstitutional search?

A constitutionally unreasonable `search’ occurs when (1) an expectation of privacy that society is prepared to consider reasonable is infringed,” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), or when (2) the government engages in an unlicensed physical intrusion of a constitutionally protected area in order to obtain information, Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409, 1414-15, 185 L.Ed.2d 495 (2013).

Police Using Drones To Watch From Overhead

Then there are all these drones.  Law enforcement agencies in Texas really seem to love these things (e.g., this 2013 national drone location map here).  For several years now, police departments have been using drones as part of their job to “protect and serve.” Check out this YouTube video of a police drone being used with traffic in North Texas:

It’s known that drones are getting more and more popular with police because drones have to be registered with the Federal Aviation Administration.

How are these police drones being used?

A Freedom of Information Act request by the Electronic Frontier Foundation discovered that police departments around the country like to use drones for things like secretly watching suspected drug deals, as described by an Alabama police department in its FAA documentation.

However, as discussed by an Atlanta CBS affiliate, not all FAA applications give specifics. The Texas Department of Public Safety filed their 2013 drone registration with the FAA with the succinct description that itwould be used for a “mission [that] was law enforcement sensitive.”  Who knows what that involves, right?

Texas License Plate Database and License Plate Readers

Then there’s our car license plates and the growing police database. While a bill was introduced this winter at the Texas Legislature regarding the collection of license plate images by state and local law enforcement, no law was passed as a result. What this means is that right now, there’s a huge collection of license plate information, collected by license plate readers, and no regulation over how they are kept or when they should be tossed, etc.

The lawmaker that wanted to pass the bill was State Representative Matt Rinaldi (R-Irving) — and he got the idea after discovering that Texas police have been keeping this license plate database, living and growing, for 20 – 30 years.

A recent article in The Atlantic points out the big problem with all these license plate readers. In “How License-Plate Readers Have Helped Police and Lenders Target the Poor,” Kaveh Waddell writes of cameras that are attached to highway overpasses or utility poles, looking out at the passing traffic, or sometimes affixed to actual police cars, all designed to capture images of each vehicle’s license plate as it drives past the lens.

The cameras don’t just take photos here. They grab almost 2000 plates a MINUTE and cross-reference the plate numbers to the police online databases. Then alerts are made within minutes to police officers of any license plate that raises a flag with the gizmo.

The images are also stored so that if need be, police could look up a license plate number and find out where it was, at what time, or what day.

Police argue that these license plate readers help them catch criminals who are driving stolen vehicles or who have warrants out for their arrest on other crimes. However, as the Atlantic expose points out, these gizmos are already being used in the private sector to do things like help repo men track down cars to repossess because the owner is behind on his car payments.

And, here in Texas, a national controversy has arisen out because one of these license plate reader companies has offered Texas law enforcement free use of its gizmos if the police officers pay the private company 25% on any outstanding court fines that are collected through using license plate readers to track down those who haven’t paid their fines.

See, “Texas police turn into ‘mobile debt collectors’ with license-reader program,“ in the February 2016 issue of the ABA Journal.

The Police and Your Privacy

The Fourth Amendment protects your privacy and forbids unconstitutional searches and seizures, but it may well mean these days that not only do you have to fight an invasion of your privacy that has already occurred, but that you may have to file an appeal of any denial of your motion to suppress that evidence up through the appellate system. Like Danny Kyllo had to do long ago after the Oregon agents sat in their car and aimed that thermal-imaging device at his apartment back in 1991.

Lawmakers are trying to help. The state representative tried and failed earlier this year to get a law passed about those license plate readers. Maybe next session, right?

And the Texas Privacy Act has been passed, which is designed to protect us all from police drones by making it illegal for law enforcement to use drones to grab images of private property, unless the police have a valid search warrant. See, Texas Government Code Chapter 423.

Of course, there are exceptions in this drone law that some might call big fat loopholes.

For one thing, there’s no need for a warrant if law enforcement has a “reasonable suspicion” that a person has committed a crime and they are using the drone in the immediate pursuit of such person.

Another one: it’s okay to use police drones to take images of private property that is within 25 miles of the Texas – Mexico border.

Laredo and the 25 Mile Exception to Privacy Expectations

A private citizen, Manuel Flores, just sued on that border exception. He’s arguing that it’s an invasion of his privacy that drones can come and take photos of his yard or through his windows just because he lives within 25 miles of the border. And he knows his law: Manuel Flores is a former state district judge who’s taken the fight to the courts, suing both the State of Texas as well as the governor himself.

Here’s Where We Are, Texas

Bottom line, we don’t have as much privacy as the constitution presumed we would enjoy due to new technological advancements and the willingness of many members of law enforcement to push the edge of the Fourth Amendment envelope until a court comes down with an opinion that confirms they were not justified in doing so.

If you believe that the police or any form of law enforcement is stepping over that privacy line, then you will need to be prepared to mount a legal fight in order to protect yourself and your privacy. Sadly, we’ve come to the point where the possibility of a privacy invasion isn’t the focus, now it’s closing the barn door after the horse is gone.

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For more information on Searches and Seizures see our previous discussions on the issue here or visit Michael Lowe’s Case Results, like this one.