In recent history, the nation has seen a dramatic shift in police policy. More and more, the American Civil Liberties Union reports, police departments are obtaining military equipment in order to more effectively address a variety of crimes. The ACLU report notes that, while the initial purpose of increased paramilitary and SWAT operations was to minimize emergency situations (hostage, barricade, and active shooter scenarios), Congress enabled police departments to go further. Utilizing the 1033 Program, made a permanent fixture of the National Defense Authorization Act in 1996, federal, state, and local law enforcement agencies could request excess equipment from the U.S. Department of Defense at no charge. Additionally, any request that was purposed toward “counterdrug and counterterrorism activities” was to receive preference under the program. The program came under scrutiny most recently with the unrest in Ferguson, when media outlets published photos of police in military-grade gear. President Obama, in response, enacted a restriction on local law enforcement from requesting certain equipment.
While the new restrictions on the 1033 Program focus on “tanks and other tracked armored vehicles, weaponized aircraft, and vehicles,” there are still options for local and state enforcement. It was reported in October 2015 that the New York Police Department had been utilizing a proactive approach to terrorism. Originally a method by which the NYPD saw inside cars to protect the motorcade of President George W. Bush in 2004, the NYPD Police Commissioner has remained tight-lipped about the full breadth of the “Z Backscatter Vans” (“ZBV”) in recent years. The technology employed in the ZBV was initially used by the military in Afghanistan. Described by the manufacturer, the ZBV system can “quickly reach places other systems can’t go, and scan objects other systems can’t inspect.” The ZBV system is able to detect “explosives, drugs, currency, and trade-fraud items such as alcohol and cigarettes.”
Questions the city is seeking to avoid revolve around the health concerns of individuals being subject to harmful radiation, the authorization the NYPD obtains prior to taking images, and the period of time which the images are stored. The NYPD has attempted to limit information, stating that “[the program] falls into the range of security and counter-terrorism activity” and releasing such information “would compromise public safety.” The Police Commissioner did state, however, that “they’re not used to scan people for weapons.” In December 2014, after a three year legal war that began with the department denying a Freedom of Information Law request, a state court ordered disclosure of the requested information – a ruling that has been ignored by the NYPD to this point. On appeal, New York City is attempting to keep the information suppressed, and denies responsibility to follow the lower court ruling.
To date, therefore, it is unclear whether the NYPD is required to obtain a warrant before using of the ZBV, who has access to the images taken, and how long the images are retained. The Atlantic notes that due to the abilities of the ZBV it is possible apartment houses with people inside are being exposed to radiation. While not previously willing to address health concerns, the Department conceded in court (reflected in the ruling) that the ZBV delivers a radiation dose forty-percent higher than backscatter technology used in now-retired airport scanners, and that bystanders present when the ZBV is in use are exposed to radiation emitted. As the ruling states, ionizing radiation, used in the ZBV, has long been known to mutate DNA and cause cancer. While not fatal, this could be a damaging notion to the future use of such devices.
Despite all of the other issues the ZBV brings, there is still the lingering Fourth Amendment concern to be addressed. Because the NYPD has refused to provide any information, it is unknown to what extent the ZBV is being used.
In Kyllo v. United States, 533 U.S. 27 (2001), the Court disallowed the use of a thermal-imaging device to detect the growth of marijuana in a home after law enforcement officers became suspicious. There, the Court held that utilizing “sense-enhancing technology” to gain information otherwise unavailable without physical intrusion into a protected space was a search for Fourth Amendment purposes. The court later acknowledged, in Illinois v. Caballes, 543 U.S. 405 (2005), that the critical fact in invalidating the search in Kyllo “was the fact the device was capable of detecting lawful activity – in that case, intimate details in a home.” In Caballes the Court held a dog sniff of the exterior of a car during a lawful traffic stop to be valid, in that it “reveals no information other than the location of a substance that no individual has any right to possess.” Regarding automobiles, the Court has previously noted in California v. Carney, 471 U.S. 386 (1985), that the public possesses fewer privacy rights in vehicles, and that “movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate’s prior evaluation of those facts.” In that instance, the Court confirmed that law enforcement officers had the necessary probable cause to conduct the search, and therefore the search was valid.
These cases, taken in tandem, give support to a couple areas of the ZBV. First, Kyllo speaks to the notion that the ZBV is a sense-enhancing technology. Without the use of the ZBV, police officers would necessarily require a physical intrusion of the parked vehicle to reveal any contraband. Additionally, as supported by the ruling in Caballes, the ZBV would be capable of detecting lawful activity and has the potential to reveal information beyond illicit substances/items. As demonstrated by Carney, it is necessary for law enforcement officers to have suspicion rising to the level of probable cause before being allowed to conduct a search (exigent circumstances excluded). Here, use of ZBV would likely require probable cause of a crime being committed to be upheld as valid. Unfortunately, the current NYPD approach is simply one of “trust us,” thereby making it unknown if this standard is being met. Additionally, it is unclear what happens to a passersby that is “searched” incident to that of a vehicle being X-rayed, with contraband visible on his person. While Terry v. Ohio, 392 U.S. 1 (1968), would require reasonable suspicion of a crime about to be committed to justify a search of an individual on the street, the Court has seemingly lessened the effect of the exclusionary rule in recent jurisprudence.
Given the reliance on national security in society today, it is not difficult to imagine other large metropolitan police departments employing the ZBV utility. Being able to scan an entire vehicle in fifteen seconds provides an enormous incentive to departments, as it provides an efficient manner of detecting crime. However, the health and safety concern, compiled with the Fourth Amendment concern, might outweigh the overall benefit to society. Practitioners should be aware of the new technology developing in the field, especially when it concerns potential warrantless searches. While it is possible the New York Police Department is obtaining authorization through search warrants, and specifically targeting individual vehicles, the reluctance to state otherwise is concerning for individual rights. Practitioners should look for this case on further appeal on the horizon, as statements by NYPD Commissioner Bratton appear to suggest a lengthy battle ahead.
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