On Apr 25, 10:33*pm, Bill Shatzer wrote:
hal lillywhite wrote:

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

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

Agreed and it is rather clear when a cop is searching or seizing.

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.

But there's rather more expectation of privacy inside a house than in
a 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.

The building is gonna emit IR but with the metal blocking that IR will
be very diffuse and not show images, hence not useful for evidence.
However metal-backed insulation is available so there's no reason not
to think that wasn't used in the house. As for large quantities of
Reynolds Wrap, just looked at our roll which contained 200 square
feet. It would only take a few of those to block off the walls toward
the street, not enough to arouse suspicion at the grocery store.

And why would it be suspicious for someone to block the IR from their
home? As IR imagers become more available I can see that someone
would want to make sure that local peeping Tom couldn't watch them on
the toilet or while making love.

....

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.

But "probable cause" implies that it must be reasonable.

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.

How do you define probable? How do you know it is probable? What
you've described is an invitation to chaos with one judge accepting
most anything as probable cause while another has high standards. If
we put some standards on it then at least the cop would have an idea
of what he needs to demonstrate to get a warrant.

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..

But it is, I believe, allowable as reason to gather more evidence
such as put a cop with a radar gun on that highway. You can't convict
on 80% probability but you can get more evidence, raise the
probability to near 100% and then convict.

....


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.

Statistics can *easily* include all those factors, even the cop's
experience and how it affects his right brain recognition.

Plug in the appropriate values and crank up your computer.

GIGO.

And there's no GIGO in the current system? No cops or judges with
biases? However if probability is correctly applied it will eliminate
GIGO. Any statistician will tell you that you have to have good data
for the statistics to be meaningful. How often are drug deals known
to happen at Couch and 4th? What's the recidivism rate of drug
dealers? Is the guy handing the mayor an envelope going to benefit if
he bribes that mayor? Probability calculation can handle all that
quite easily if given the correct data. However without that correct
data *nobody* is likely to be very accurate.