USA Today on Friday has, via AP, an article about the controversial body scanner with "backscatter" technology that reveals everything about your body, in an effort to see what an airline passenger may be carrying on his or her body. Don't want to be seen nude on a computer screen? Then you can be subjected to a patdown instead.

Sky Harbor International Airport here will test a new federal screening system that takes X-rays of passenger's bodies to detect concealed explosives and other weapons.

The technology, called backscatter, has been around for several years but has not been widely used in the U.S. as an anti-terrorism tool because of privacy concerns.

The Transportation Security Administration said it has found a way to refine the machine's images so that the normally graphic pictures can be blurred in certain areas while still being effective in detecting bombs and other threats.

The agency is expected to provide more information about the technology later this month but said one machine will be up and running at Sky Harbor's Terminal 4 by Christmas.

The security agency's website indicates that the technology will be used initially as a secondary screening measure, meaning that only those passengers who first fail the standard screening process will be directed to the X-ray area.

Even then, passengers will have the option of choosing the backscatter or a traditional pat-down search.

A handful of other U.S. airports will have the X-rays machines in place by early 2007 as part of a nationwide pilot program, TSA officials said.

From the Electronic Privacy Information Center website:

The backscatter machines use high-energy X-rays that are more likely to scatter than penetrate materials as compared to lower-energy X-rays used in medical applications. Although this type of X-ray is said to be harmless, it can move through other materials, such as clothing. When being screened, a passenger is scanned by high-energy X-ray beam moving rapidly over her body. The signal strength of detected backscattered X-rays from a known position then allows a highly realistic image to be reconstructed. In the case of airline-passenger screening, the image is of the traveler's nude form. The image resolution of the technology is high, so the picture of the body presented to screeners is detailed enough to show genitalia. These images are not necessarily temporary – screeners can save the body images to the system's hard disk or floppy disk for subsequent viewing on either "the system monitor or on any IBM compatible personal computer with color graphics."

What does TSA have to say about patdowns and backscatter technology?

Question: What are TSA’s policies regarding pat-downs and how are they serving a security need?

Answer: TSA expanded its pat down procedures to strengthen its ability to detect explosives at the security checkpoints. Transportation security officers (TSOs) use the front of the hand to screen a passenger’s entire back and abdomen, the arms from shoulder to wrist and legs from mid-thigh to ankle. TSOs communicate with the passenger and explain the process prior to conducting the search. Pat-downs are conducted by TSOs of the same gender whenever possible and private screenings are available at the passenger’s request. Patting down the chest area may be conducted if there is an alarm from a hand-held metal detector or an irregularity in the person's clothing outline. TSOs conduct the inspections in a professional, respectful manner, while maintaining the highest security standards.

Question: How has TSA addressed the issues of privacy while piloting Backscatter technology?

Answer: TSA met with privacy advocates to incorporate privacy concerns into the development of Backscatter Technology. In response to those concerns, TSA required that the companies responsible for developing Backscatter technology incorporate a privacy algorithm into their technology. This privacy algorithm would eliminate much of the detail shown in the images of the individual while still being effective from a security standpoint. Further, Backscatter images will not be retained in the system, will not be capable of being printed, and will be deleted as each individual steps away from the machine to allow a new individual to be screened.

One of these days, you'll have to either strip naked to get on an airplane or be subjected to a virtual voyeur looking at your naked body on a computer screen. Apparently "those days" are not that far away.

Saturday's Atlanta Journal-Constitution has this article, by Bill Torpy and Rhonda Cook: Few results from no-knock warrants, critics say. The Atlanta PD even raided the house next door to Mrs. Johnston's house about 18 months ago, finding no drugs, but the raid was eight days after the buy (which is the point of the staleness requirement, maybe?).

In March 2005, a team of Atlanta narcotics officers, armed with a "no-knock" search warrant, arrived at a northwest Atlanta home looking for a marijuana dealer known only as "Black."

The door was open so the officers didn't have to smash it down; they simply walked in and searched the home, said a resident of the house who was confronted in his living room by armed officers.

The officers found plastic bags and a small scale but no drugs, according to a police report, a point that the resident disputes. Police also did not find "Black" and made no arrests.

The house at 929 Neal St. is next door to and shares a driveway with the home of Kathryn Johnston, the elderly woman who was killed last week in a shootout with Atlanta narcotics officers who came to search for drugs.

The fatal raid, in which three officers were wounded, has shined a spotlight on how the narcotics officers target houses to raid and the tactics used in those raids.

According to police reports, warrant applications and search warrant inventories:

• In each of these two cases, police said a confidential informant made a single, small drug buy at the target house.

• In each case, officers had a no-knock warrant that gave permission to bust down the door.

• In each case, police were looking for a man known only by a nickname who also was not found; last year it was a man named "Black," last week it was "Sam."

• And in each case, members of the same narcotics team were involved.

But these aren't the only cases in which the team served no-knock warrants and came away either empty handed, or with little to show for their effort. Though the legal standard requires police to show special circumstances — that evidence will likely be destroyed or that weapons in the house put officers at risk — these cases and others show that short, routine descriptions and the trust of a judge is all that veteran officers need to obtain such warrants.

The bottom line? It appears to me, from my Fourth Amendment litigator perspective, that these guys are not very well trained, thus proving Justice Scalia and the other four in the majority wrong in Hudson v. Michigan, 126 S. Ct. 2159, 2168 (June 15, 2006):

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to "assume" that unlawful police behavior would "be dealt with appropriately" by the authorities, United States v. Payner, 447 U.S. 727, 733-734, n. 5, 100 S. Ct. 2439, 65 L. Ed. 2d 468 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been "wide-ranging reforms in the education, training, and supervision of police officers." S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p 51 (1993). Numerous sources are now available to teach officers and their supervisors what is required of them under this Court's cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. See, e.g., D. Waksman & D. Goodman, The Search and Seizure Handbook (2d ed. 2006); A. Stone & S. DeLuca, Police Administration: An Introduction (2d ed. 1994); E. Thibault, L. Lynch, & R. McBridge, Proactive Police Management (4th ed. 1998). Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. See Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989). Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.

The moral to the story? When the defense proffers a reason for something in the Supreme Court, it is dismissed as unfounded, but, when the government proposes something, citing a book but without evidence in the record, the Supreme Court will seize on it and make it law. Indeed, Justice Scalia wrote that it assumes that "civil liability is an effective deterrent here." Hudson, 126 S.Ct. at 2167-68.

They do not have a clue.

The Atlanta Journal-Constitution's website has a link to the affidavit and search warrant in the search that led to the death of Kathryn Johnston on November 21st.

The no-knock provision was based on the alleged surveillance cameras that the informant reported to the police which showed up in the affidavit. The affidavit also described the house as having a wheelchair ramp in the front. The latter provision would tip off the police that there was somebody else in the house besides the alleged drug dealer.

Something different: The Washington Post has an editorial today about the minor discipline meted out to a Fairfax SWAT team member who accidentally shot an optometrist who they were sent to arrest for being an alleged bookie. The shooting was only tangential to the arrest, but why was the officer's finger on the trigger and the gun pointed toward the non-violent suspect that somebody felt compelled to send the SWAT team to arrest? All dressed up with no place to go?

For months before this egregious shooting, an undercover police detective had been placing bets with Mr. Culosi, who had no criminal record; had never owned a firearm; and presented no threat of violence, flight or resisting arrest. It is still unclear, 10 months after the fact, why despite that profile police decided to arrest Mr. Culosi with a SWAT team, which is trained and equipped for use in dangerous situations. After Mr. Culosi's death, the police department said it would conduct a review of policies and procedures involving the use of such teams. But if there was such a review, its results have not been made public. One wonders if the SWAT team in Fairfax, lacking frequent opportunities to respond to situations involving imminent danger and threats, is deployed simply to give its officers something to do. If so, that's bad policy and bad policing.

Mr. Bullock, a 17-year veteran of the police force, was trained in firearms and tactics. He well knew that during a routine arrest, his finger should not have been on the trigger and his gun should not have been pointed at the suspect. So it is no real excuse that, in jumping from his car, the car door bounced back, striking him in the side and causing him to pull the trigger. Like people in other lines of work who make disastrous mistakes, Mr. Bullock should be held accountable for his actions, even though they were unintentional. The chief prosecutor in Fairfax, Robert F. Horan Jr., already declined to prosecute Mr. Bullock or refer the case to a grand jury, yet now police union officials howl that even a three-week suspension is unfair. It's not. It is in fact little more than symbolic discipline. But in such a case symbolism is important and well placed.

Is this the kind of "professional" police and internal discipline that Justice Scalia was referring to in Hudson v. Michigan? What a farce.

Officers were called for a "civil standby" to aid plaintiff's wife in removing her belongings from the home. Plaintiff showed up and he was cornered and effectively restrained in his own home while his wife allegedly made off with some of his property. Summary judgment for the officers was reversed because the officers' actions constituted a search and seizure. Poteet v. Sullivan, 2006 Tex. App. LEXIS 10240 (Tex. App. — Ft. Worth November 30, 2006).

Georgia holds that a civil order to pick up a person for civil commitment of some sort does not permit a Terry frisk. Alternative justification of inventory also fails. Lindsey v. State, 282 Ga. App. 644, 639 S.E.2d 584 (November 30, 2006).

Defendant's hestitation and shocked demeanor when asked about where he was was sufficient for reasonable suspicion. State v. Porche, 2006 La. LEXIS 3303 (November 29, 2006).*

Defendant's argument that he would not have consented to a search of the car because there was such a large quantity of drugs in the car was resolved against him by the trial court which believed the officers that he consented. State v. Gomez, 2006 La. App. LEXIS 2703 (5th Cir. November 28, 2006).*

Stop was based on reasonable suspicion and so was frisk. It was supported by defendant's probation search condition. State v. Hammonds, 2006 Tenn. Crim. App. LEXIS 919 (November 29, 2006).

California recognizes that In re Tyrell J. not requiring knowledge of probationary status before a probation search has been undermined to the point it should be overruled, particularly in light of Samson v. California. Knowledge of probationary status is required to prevent overbearing and harassing searches. In re Jaime P., 40 Cal. 4th 128, 51 Cal. Rptr. 3d 430 (November 30, 2006).

Habeas petitioner loses on the merits of an ineffective assistance on a search claim because he could not win on the merits. (The convoluted AEDPA formula of "clearly established" case law did not even have to enter into it.) Mosby v. Senkowski, 470 F.3d 515 (2d Cir. November 30, 2006).*

Doctor and his wife sued LVMPD for a false arrest. He claimed that the officers did not properly identify themselves before the arrest. A fact question remained for trial, and the district court improperly granted QI. Vlasak v. Las Vegas Metropolitan Police Department, 213 Fed. Appx. 512 (9th Cir. 2006)* (unpublished).

Exigent circumstances for hot pursuit into plaintiff’s backyard to arrest for misdemeanor fleeing from a fight is a fact question for the jury in this case. Thorne v. Steubenville Police Officer, 2006 U.S. Dist. LEXIS 86059 (S.D. Ohio November 28, 2006).*

Ongoing activity makes information for a search warrant not stale. United States v. Allen, 2006 U.S. Dist. LEXIS 86185 (D. Utah November 15, 2006).*

Not on point, but interesting, is a California Court of Appeals case holding that a motel room is a "habitation" for purposes of the burglary statute, citing Fourth Amendment cases. People v. Villalobos, 145 Cal. App. 4th 310, 51 Cal. Rptr. 3d 678 (4th Dist. November 30, 2006):

The concept of the right to privacy in a hotel room as arising from its status as a sleeping place analogous to the home is recognized in the context of Fourth Amendment search and seizure law as well. "We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend. Society expects at least as much privacy in these places as in a telephone booth--'a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable,' [citation]." (Minnesota v. Olson (1990) 495 U.S. 91, 99, 109 L. Ed. 2d 85; see also Stoner v. State of Cal. (1964) 376 U.S. 483, 489, 11 L. Ed. 2d 856 [guest in a hotel room receives the same constitutional protections against unreasonable search and seizures as a person in his or her house].)

Under the Maritime Transportation Security Act of 2002 ("MTSA"), 46 U.S.C. §§ 70101-70119, the Secretary of Homeland Security enacted regulations via the Coast Guard governing searching of cargo and vehicles on ferry boats. A search of a car on a ferry crossing Lake Champlain from NY to VT was reasonable. Cassidy v. Chertoff, 471 F.3d 67 (2d Cir. November 29, 2006) (link; case 05-1835):

Based on this [vulnerability] assessment, the Coast Guard determined that certain maritime vessels, including those that weigh more than 100 gross register tons or are licensed to carry more than 150 passengers "are at a high risk of a transportation security incident." Id. at 39,246; see also 33 C.F.R. § 104.105(a) (codifying the Coast Guard's above determination). Under the MTSA implementing regulations, vessels that fall into the high-risk category are required to adopt certain security measures to "[d]eter the unauthorized introduction of dangerous substances and devices, including any device intended to damage or destroy persons, vessels, facilities, or ports." 33 C.F.R. § 104.265(a)(1). To determine what security measures are required for such high-risk vessels, a vessel owner must prepare a Vessel Security Assessment ("VSA"), which is "an analysis that examines and evaluates the vessel and its operations taking into account possible threats, vulnerabilities, consequences, and existing protective measures, procedures and operations," id. § 101.105, by collecting specified background information and carrying out an onsite survey of the vessel to check existing protective measures, procedures, and operations for a variety of factors. Id. § 104.305(a)-(b). When complete, the VSA is used by the vehicle's owner or operator to devise a Vessel Security Plan ("VSP"), which is a "plan developed to ensure the application of security measures designed to protect the vessel and the facility that the vessel is servicing or interacting with." Id. § 101.105. The VSP must be submitted to the Coast Guard for review and approval. Id. § 104.410. Owners of a vessel operating under a VSP must "[s]creen persons, baggage (including carry-on items), personal effects, and vehicles for dangerous substances and devices at the rate specified in the approved Vessel Security Plan." Id. § 104.265(e)(1). Owners must also "[c]heck the identification of any person seeking to board the vessel." Id. § 104.265(e)(3).

Owners and operators of high-risk vessels are permitted a certain measure of flexibility within this general framework. They may opt out of "identification checks and passenger screening requirements." Id. § 104.292(b). In place of these search requirements, vessel owners "may ensure security measures are implemented that include":

(1) Searching selected areas prior to embarking passengers and prior to sailing; and
(2) Implementing one or more of the following:
(i) Performing routine security patrols;
(ii) Providing additional closed-circuit television to monitor passenger areas; or
(iii) Securing all non-passenger areas.

The court held that the privacy interests of the passengers on a boat were governed by the Fourth Amendment and not lessened by the mode of travel (boat v. airplane):

Finally, we are not convinced by the government's argument that our airport search cases alter the privacy interest calculus here. In United States v. Edwards, we upheld pre-boarding, suspicionless searches of airline passengers, holding that to brand them "as unreasonable would go beyond any fair interpretation of the Fourth Amendment." 498 F.2d at 500. But airplanes are very different creatures from the more quotidian commuting methods at issue in MacWade and the instant case, and society has long accepted a heightened level of security and privacy intrusion with regard to air travel. Moreover, Edwards did not specifically determine or discuss the privacy interest involved, and we are wary of extending its analysis to a markedly different factual context.

. . .

Because an undiminished privacy interest is not itself dispositive in special needs cases but is merely one among three factors to be weighed, MacWade, 460 F.3d at 272, we must next examine the screening at issue and determine whether searches, which consist of random visual inspections by ferry attendants of vehicles' trunks as well as the carry-on baggage of bicyclists and pedestrians, are minimally or substantially intrusive. In making this examination, courts have looked to various factors, including, inter alia, the duration of the search or stop, see Lidster, 540 U.S. at 427; Sitz, 496 U.S. at 451-52; Martinez-Fuerte, 428 U.S. at 546-47, 558, the manner in which government agents determine which individuals to search, see Lidster, 540 U.S. at 428, Martinez-Fuerte, 428 U.S. at 559, the notice given to individuals that they are subject to search and the opportunity to avoid the search by exiting the premises, see MacWade, 460 F.3d at 273; Edwards, 498 F.2d at 500, as well as the methods employed in the search, see Sitz, 496 U.S. at 451; Martinez-Fuerte, 428 U.S. at 558.

On the basis of these factors, it is clear that the searches in this case are, by any measure, minimally intrusive. As recounted by plaintiffs, the duration of the stops or searches have been "cursory" and of the short duration which the Supreme Court has long held to be minimally intrusive. Lidster, 540 U.S. at 427 (upholding brief stops of vehicles at checkpoint and questioning of drivers); Sitz, 496 U.S. at 451 (same); Martinez-Fuerte, 428 U.S. at 546-47, 558 (same). Plaintiffs have not alleged that the government has given unbridled discretion to LCT employees to carry out searches in a discriminatory or arbitrary manner. Lidster, 540 U.S. at 428 ("[T]here is no allegation here that the police acted in a discriminatory or otherwise unlawful manner while questioning motorists during stops."); Martinez-Fuerte, 428 U.S. at 559 (discussing the intrusiveness of roving patrols that presented "a grave danger [of] unreviewable discretion," but finding that a fixed checkpoint greatly reduced the possibility of abuse). Other factors similarly weigh in the government's favor in this inquiry. For instance, the methods used to conduct the searches at issue are limited to visual inspections of vehicles and their trunks and brief examinations of the contents of carry-on baggage. See Sitz, 496 U.S. at 451 (brief visual inspections); Martinez-Fuerte, 428 U.S. at 558 (same); Edwards, 498 F.2d at 500 (brief examination of contents of carry-on luggage). Ample notice is given to individuals seeking to board LCT ferries that are subject to search and that they may avoid the search by exiting the premises. See MacWade, 460 F.3d at 273 ("[P]assengers receive notice of the searches and may decline to be searched so long as they leave the subway. . . ."); Edwards, 498 F.2d at 499-500 (finding notice central to upholding the constitutionality of airport searches where large signs had been posted near the boarding gates warning: "PASSENGERS AND BAGGAGE SUBJECT TO SEARCH"). Such notice helps "reduc[e] to a minimum any unsettling show of authority that may be associated with unexpected intrusions on privacy." Von Raab, 489 U.S. at 672 n.2 (internal citation and quotation marks omitted); see also Edwards, 498 F.2d at 501 ("The point is . . . that in order to bring itself within the test of reasonableness applicable to airport searches, the Government must give the citizen fair warning, before he enters the area of search, that he is at liberty to proceed no further."). Notice also serves to eliminate any stigma associated with the search. Id. at 500 ("The search of carry-on baggage, applied to everyone, involves not the slightest stigma. More than a million Americans subject themselves to it daily. . . .") (internal citation omitted).

The court also engaged in a fascinating discussion of the balancing of special needs, discussing: (1) the special needs doctrine does not require a "well-defined target class"; (2) the government has demonstrated a "special need" in this situation; (3) the government's determinations of "high risk" vessels are entitled to deference; and (4) the relevance of the efficacy of the searches.