SB226: Requiring a Warrant for Police to See Through Our Walls

This bill passed both chambers of the legislature unanimously and was signed into law by Governor Herbert.

Libertas Institute supports this bill.

A 2001 U.S. Supreme Court case, Kylio v. U.S., addressed the use of thermal imaging devices by law enforcement officials, and the ruling held that such devices could not be used without a warrant as they constituted a search.

“Where… the government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment ‘search,’ and is presumptively unreasonable without a warrant,” the majority opinion reads.

Interestingly, the ruling anticipated the development of more refined technology and held that the court “must take account of more sophisticated systems that are already in use or in development,” referring to radar technology that would be far more detailed than blurry thermal images, which would “enable law officers to detect individuals through interior building walls.”

Despite this Supreme Court ruling, as the USA Today notes, “at least 50 U.S. law enforcement agencies [have] quietly deployed radars that let them effectively see inside homes, with little notice to the courts or the public.”

As the nation’s highest court has been ignored by law enforcement who have deployed this technology to invasively see inside the walls of one’s home, statutory protections are needed to establish guidelines for the use of these devices. Senator Mark Madsen has introduced Senate Bill 226 to do just that.

With limited exceptions for exigent circumstances or consent of the property owner, law enforcement officers would be required under this bill to first obtain a warrant for the use of this technology. The application for the warrant would have to specify how the technology would be used and restricted to the scope of the warrant, and the target of the investigation would have to afterwards be notified that this technology was used on them. Finally, the bill would prohibit the retention of data obtained when using these devices for any person who is not the target of the warrant.

This first-in-the-nation legislation builds on last year’s monumental legislation similarly restricting the ability of law enforcement to access the location or contents of one’s mobile device. The Utah legislature has clearly established a desire to statutorily protect individual rights and this bill, also offered by Libertas Institute, would continue that important trend.