By Farah Ali

Police can now ‘see’ through the walls of your home, even without a warrant. A company called L-3 Communications has developed the RANGE-R, a radar device with stepped frequency continuous wave technology. The RANGE-R can “detect and measure the distance to moving and near stationary personnel through the walls constructed of common building materials.” This means that the handheld radar can be placed outside of a house and can report a three-dimensional display of what is happening inside the house. It can even detect a person who is simply breathing.

The radar was designed to be used in the battlefield, specifically in Iraq and Afghanistan. But, L-3 Communications has been marketing the radar to police departments and other emergency response organizations in the United States. Over the last two years, at least 50 police agencies have obtained access to this radar. However, the use of this machine was kept under the radar until this past December when the Tenth Circuit in United States v. Denson revealed its use to the public.

Police used the RANGE-R device to arrest Mr. Steven Denson when he was in his own home. Although they had an arrest warrant, they did not have a search warrant for Mr. Denson. They used the radar to find out if Mr. Denson was in the home and proceeded to find him with a stash of guns. Mr. Denson tried to suppress evidence based on a violation of the Fourth Amendment. The Tenth Circuit Court of Appeals declined to address that issue, but the court did, however, assert that “the radar device deployed here will soon generate many questions for this court and others.”

Use of the RANGE-R raises privacy concerns especially when police use it without a warrant. In Kyllo v. United States, the U.S. Supreme Court held that when “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.” Therefore, the police use of thermal-imaging devices within a person’s home requires a warrant. The Court further strengthened the sanctity of a person’s home in Florida v. Jardines, where it held that law enforcement could not use a drug-sniffing dog on the porch of a house without a warrant. Legal experts argue that the RANGE-R radar’s technology is much more intrusive than those at issue in Kyllo and Jardines. Moreover, the special status of a person’s home should protect people from these intrusions.

In fact, members of the Senate Committee on the Judiciary are deeply concerned about the Fourth Amendment issues in Denson. The Committee wrote a letter to Attorney General Holder expressing their concerns. This letter demanded the Attorney General to answer whether the “Justice Department is doing enough to ensure- prior to these technologies’ first use – law enforcement officials address their privacy implications, seek appropriate legal process, and fully inform the courts and Congress about how they work.” In December, the Committee raised similar concerns to the Attorney General regarding cell-site simulators, or “Stingrays,” which allow for the collection of data from large numbers of cell phones even in their own homes. (Read more about Stingrays in our previous entry “The Hidden StingRay Within the Murky Waters of Surveillance.”)

As technology advances, it continues to conflict with our societal interest in privacy, especially in one’s own home. While we value police officers and want them to be able to efficiently do their jobs, we must ensure that a civilian’s constitutional rights are not trampled on.