hal lillywhite wrote:
On Apr 25, 2:06 pm, Bill Shatzer wrote:

But, you see, the entry itself is neither a search nor a seizure.

But entering in search of evidence is. If the cop ain't looking for
evidence, why does he need to enter?

It's the bug which is the search or seizure.

Still, it's searches and seizures which the constitution addresses.

The infrared camera is not an entry at all - it is merely recording the
emissions coming from the dwelling in any case.

But clearly is seeking evidence if that is how they use it.

They're seeking evidence when they peer through a hole in the fence and
spot a marijuana grow in the back yard.

(And it would be pretty easy to defeat infrared searches, a bit of
metal over the walls and it doesn't get out of the house. A few rolls
of aluminum foil would do it, as would metal-backed insulation in the
walls and ceiling.)

I wonder.

No need to wonder, talk to any physicist and he'll tell you that metal
blocks IR. That's how a space blanket works. In fact Columbia
Sportswear recently came out with clothing with aluminum dots to
reflect the IR the body generates and thus increase insulation value.

What I wondered about was whether a dwelling which emitted no IR at all
would constitute probable cause in its own right. With or without
records of purchases of large amounts of Reynolds Wrap.

Under the English common law, the constable was allowed to stand out
side the dwelling and if he saw (or heard) evidence of a crime through a
window, take appropriate action.

Judges must decide whether doing the same thing with the benefit of an
infrared detector or a sound amplifier is more akin to the constable
standing outside or more akin to an actual entry.

There is a difference between looking through an un-curtained window
and looking through walls that people have every reason to expect are
opaque.

Of course there's a difference.

Which is rather why the judges came up with the concept of "reasonable
expectations of privacy" - a concept nowhere mentioned in the 4th
amendment nor the 1791 common law.

The language of the 4th is not self-defining. Judges must do that.

Why can't a lawyer ask, "Officer, you say you had probable cause to
search my client's house. Just how probable was it that you would
find evidence there and how did you determine that probability?"

The question wouldn't even be allowed.

Why? If evidence was obtained by that claim of probability, why
should the defense not be allowed to ask about it?

Because probability is not the standard, probable cause is.

That's not how "prudent and cautious" people operate in the real world.

A court of law is hardly reflective of most of the world.

The courts of law ABOUND in "reasonable man" standards!

And that would exclude probability?

Pretty much. It's "probable" that the defendant was speeding - after
all, if you clocked 100 vehicles, 80 of them would be exceeding the
speed limit by some amount.

But that is not an allowable inference, even though it's probably correct.

And probable cause operates on the basis of such individuals, who are,
in almost all instances, NOT statisticians.

You don't have to be a statistician to understand the basic concepts
required for such calculations. In fact modern technology could help
here. It would be simple to produce a computer program to calculate
everything they need, you'd only have to help them understand the
concepts. For most people of average intelligence, a few hours (maybe
4-8) of class time would be more than adequate.

I fear you rather underestimate the complexity of what you're proposing.

Each case is unique with it's own particular facts and circumstances and
is unlikely to fit into any preconceived computer calculation.

You make it unnecessarily complicated. All you need is some basic
understanding of probability and the ability to multiply, divide, add
and subtract. Wouldn't even get into square roots except in
extraordinary cases.

The difficulty is in assigning a numerical value to such things to even
begin the statistical calculation.

A cop observes two men. One hands the other a small package. The other
returns an envelope. What is the probability that the cop has just
witnessed a drug sale?

Does it make a difference as to whether the cop was on the corner of
Couch and 4th as opposed to the dining room of the Glendoveer Country
Club? Did the cop observe furtive glances prior to the exchange? What
exactly is a furtive glance? Does the time of day make a difference?
What if the cop recognizes one of the men as a convicted drug user? Or
as the Mayor? I'm sure you can come up with at least a half dozen other
possible variables.

Plug in the appropriate values and crank up your computer.

GIGO.

peace and justice,