A person has a subjective expectation of privacy in their front door, which is part of the home itself, assistant federal defender Wendy Lewis wrote in her request to throw out evidence.
You've all seen the Ionscan--it's the test airport screeners do after you your bags go through x-ray and they say they need to test one or more for explosive residue. They take a wand with a little cloth on it and swipe it around your bag.
So, which way is the court going to go on the Ionscan as sole probable cause for a search warrant?
In Utah, Judge Ted Stewart ...ruled in August that the Ionscan test of Mora's doorknob required a warrant. He cited a 2001 U.S. Supreme Court opinion that required Oregon police to get a warrant before using thermal imaging technology, which senses the use of heat lamps.....Taking the sample from Mora's door was similar, Stewart wrote. "The swab of the outside of the doorknob reveals something about the details of the interior of the home that is unknowable without physical intrusion - that persons who have handled drugs have entered," the judge said.
But his colleague, Judge Tena Campbell, said the Ionscan test differs from thermal imaging and reveals nothing about the inside of a house. "Rather, use of the Ionscan machine is analogous to use of a trained dog to sniff and indicate the presence of narcotics," she wrote in July, refusing to throw out the evidence against Daybell.
The ACLU advises how else the Ionscan is being used:
The American Civil Liberties Union of Utah considers such tests problematic when used in prisons or schools, according to executive director Dani Eyer. She said some penal institutions test the hands of all visitors, even if there is no reason to suspect they might have tried to smuggle in drugs. "Our question was what happens when it's positive. Is due process available?" Eyer asked.
She also worries about false positives, saying poppy seeds, chlorine diaper wipes and medicines have been incorrectly analyzed as illegal substances.
[hat tip to Ciceronian Review who will be writing about the issue soon.]
