Gun detector technology and the special needs exception.

• Author: Flores, Steven Salvador

1. INTRODUCTION

   Picture a world where antagonism between police and the community is greatly diminished or nonexistent; police officers face fewer safety risks; the crime rate is lower; and traditionally high-crime communities receive more effective protection by the police. This world may be ready to dawn.

   In 1994, James Q. Wilson suggested that these ideals could be accomplished by using a device, similar to an airport metal detector, to detect all illegal handguns on the street.(1) Wilson's article sparked debate about the applications and limitations of gun detector technology.(2) Later, in 1995, the Department of Justice issued three grants totaling more than $2.15 million for the development of new, high-technology gun detectors.(3) These gun detectors will soon be ready for the arsenals of law enforcement agencies.(4) Inevitably, the courts will have to decide how this new technology fits into the context of Fourth Amendment jurisprudence.

   Scholars have debated how the use of gun detector technology may implicate the Fourth Amendment.(5) One scholar conceptualized a hypothetical "smart" gun detector that, when used, would fall short of triggering the Fourth Amendment.(6) Other scholars have examined the technology through the lens of traditional Fourth Amendment analysis.(7) However, these scholars have yet to undertake a meaningful discussion about employing the special needs exception(8) to harmonize the use of this technology with the Fourth Amendment.

   One scholar has suggested that Millivision will have disturbing implications on special needs litigation.(9) This Note develops that position by examining the feasibility of applying the special needs exception to Millivision. With Millivision, there are circumstances in which the search can be considered minimally intrusive. Further, supporting arguments maintain that the government's special needs of improving or enhancing officer safety, improving police relations with the community at large and protecting the community from future harm justify this exception.(10)

   Parents, teachers, and community leaders have all played vital roles in reducing gun related violence, yet it remains a nationwide problem.(11) If a special needs exception is created for Millivision we may all enjoy a reprieve from gun violence. This possibility has caused some analysts and scholars to revel in the fact that Millivision may represent a turning point in the war against gun violence.(12) However, if courts apply the special needs exception to Millivision, any gain in safety will result in a loss of personal privacy.(13)

   Part II of this Note explains the Millivision gun detector and the technology it uses. Part III suggests a hypothetical use of Millivision. Part IV examines whether the Fourth Amendment is implicated by the hypothetical outlined in Part III. Special needs case law is examined in Part V. Part VI of this Note describes some special needs that may one day justify the use depicted in Part III. Finally, Part VII applies a balancing test to determine whether Part III's hypothetical use of Millivision is reasonable.

2. GUN DETECTOR TECHNOLOGY

   Through the March 1995 grant, the Department of Justice funded three companies researching different weapon detection technologies.(14) The most revolutionary technology is being developed by The Millivision Corporation(15) and is trademarked as "Millivision."(16)

   Millivision is a passive-imaging technology that registers the natural energy radiating from all objects.(17) Unlike an x-ray machine, it does not bombard the human body with any additional radiation.(18) Instead, it reads the radiation that all "black bodies," including human beings,(19) emit naturally.(20) However, the human body discharges radiation at the millimeter frequency in extraordinarily high levels when compared to most other objects.(21) Millivision detectors are designed to receive radiation at this frequency and not at different frequencies.(22)

   This technology is easily understood when analogized to a slide projector that displays an image onto a picture screen. The picture screen receives the light sent from the projector and anything that obstructs the light appears as a silhouette on the screen. When an operator points his or her Millivision detector at a person, any weapons concealed under the individual's clothing are silhouetted because they block the body's natural glow.(23) Scanning time is instantaneous, so a person with no suspicious objects can be cleared without delay.(24) Weapons are detected no matter how much clothing obscures them because the radiation penetrates all layers; clothing is virtually transparent.(25) Further, diminished visible light conditions, such as overcast days or evenings, have no adverse effect on the millimeter wave imaging.(26)

   Millivision is not perfect. Many items emit less radiation than the human body.(27) Thus, plastics, powdered drugs, and ceramics appear when scanned by Millivision's magic eye because their radiation emission properties are between the emission properties of human flesh and metals.(28) Additionally, while the human operator would not see a subject's intimate anatomical details,(29) a rough outline of the subject's body is presented to the Millivision operator.(30) These imperfections raise the ire of many civil rights activists who argue that the technology is overly intrusive on individual privacy rights.(31)

   To negate these concerns caused by Millivision, the company has taken some precautions.(32) For instance, Millivision's manufacturer argues that privacy safeguards, such as an image understanding algorithm ("IUA"), will protect subjects from unnecessary invasions.(33) The IUA is a computer-filtering system designed to send only those shapes that are programmed as suspicious to the human operator for further inspection.(34) The shapes of many known weapons could be programmed into the IUA.(35) Only if a scanned image matches the shape of a weapon, will the body's image be sent to the operator.(36)

   Millivision is developing several different gun detector models including a hand-held scanner, a video surveillance camera, and a Through-the-Wall Imaging System. The hand-held camera could be carried by officers and would enable them to scan suspects from distances of about twelve feet or less.(37) The surveillance camera could scan enclosed entryways or lobbies, and the company envisions a model that could be mounted onto a police car enabling an officer to scan from long distances.(38) The Through-the-Wall Imaging System could be used to scan closed areas by penetrating walls, doors or ceilings from virtually any nearby location.(39) Thus, this technology could allow the user to conduct a non-intrusive electronic scan unbeknownst to the subject. The potential benefits of such technology in assisting police officers are clear. However, because of its Fourth Amendment implications,(40) this new crime-fighting weapon is generating concern among lawmakers who are apprehensive about how it will be used and the potential abuses.(41)

3. ONE USE OF MILLIVISION

   Gun detector technology will be most useful to law enforcement officials serving high-crime communities. If the government demonstrates a special need, this technology may be used for many purposes, perhaps even to conduct suspicionless scans for weapons in high-crime areas. Consider the following hypothetical:

   Police are concerned with gun violence in a high-crime neighborhood. Officials decide to maintain a police presence at particular locations in this neighborhood to scan pedestrians as they pass by targeted locations. The officials provide long range Millivision cameras to field officers along with detailed procedures that the officers must follow when scanning pedestrians. The goal of the search "program" is to keep guns out of the neighborhood in order to enhance officer safety, deter future crimes, and create a positive and visible police presence in the area. The officers, in full uniform, scan every pedestrian passing the specified location. They use the gun detector only to identify shapes that resemble an illegal weapon.(42) If shapes appear on the screen that indicate a weapon may be present, the pedestrian may be approached for a physical frisk. At first glance, this hypothetical may stretch belief. However, the following sections of this Note maintain that expansions of the special needs doctrine, combined with the unique powers of Millivision, may one day result in courts confronting this very shocking scenario.

4. DOES MILLIVISION IMPLICATE THE FOURTH AMENDMENT?

   Unless a state actor performs a search or seizure, the Fourth Amendment is not implicated.(43) In Fourth Amendment jurisprudence, the usual rule is that a search requires either a warrant based on probable cause, the application of some exception to the warrant requirement, or some level of individualized suspicion.(44) This rule is reflected in Akil Amar's suggestion that two discrete commands lie within the Fourth Amendment: "first, all searches and seizures must be reasonable; second, warrants authorizing various searches and seizures must be limited (by probable cause, particular description, and so on)."(45) The exact relationship between these commands is uncertain.(46) However, one thing is certain, whatever protection we have against unreasonable government searches and seizures begins with these fifty-three words:

   The right of the people to be secure in their persons, papers and effects shall not be violated by unreasonable searches and seizures and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the person or things to be seized.(47) As indicated, the Fourth Amendment does not apply unless the action in question is a search or seizure.(48) Therefore, the preliminary inquiry is whether the initial use of Millivision at an area "checkpoint" like the one...