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The question? Whether Utah police can use a high-tech drug-detection method without a warrant to lift traces from a suspect’s front doorknob. The answer? It depends. Two federal district judges in Utah have reached opposite conclusions and another is set to rule on the matter soon. The first impression issue-no reported decisions exist-is a case study of the problems that ensue when technology threatens to outpace the law. The cases involve defendants who have challenged federal prosecutors’ use of incriminating evidence found in their homes. Though police had warrants to search their residences, they did not have warrants to take so-called “Ionscans,” technology utilized in airports to check bags for explosives, which police used to swab the defendants’ front doorknobs for drugs. It was the result of those swabs that enabled police to obtain warrants to later enter the defendants’ homes. A ‘sacrosanct’ doorknob In the pending case before U.S. District Judge Dale Kimball, defendant Troy Miller faces drug charges related to an alleged methamphetamine lab set up in his Salt Lake City home. U.S. v. Miller, No. 2:04 CR 251. Before obtaining a warrant, police officers used a sterile cloth to collect residue from the doorknob on Miller’s front door. The swab was placed into an Ionscan machine used to detect the presence of illegal substances. Officers then obtained a warrant from a magistrate judge to search the home, where they discovered evidence that prosecutors sought to use against him. Miller’s attorney, Jon Williams, a solo practitioner in Salt Lake City, argues in court papers that Utah police violated his client’s constitutional rights by swabbing the doorknob, which, he wrote, is “sacrosanct” and has the “sole purpose” of gaining entry to one’s home. Assistant U.S. Attorney Colleen K. Coebergh, who is prosecuting the case, argues in her brief, among other things, that the doorknob is not “curtilage,” an extension of one’s home afforded constitutional protection. She also asserts that the defense is not entitled to a hearing on the matter. Neither attorney would comment on the pending matter. In all three cases involving separate defendants, the implications of a 2001 U.S. Supreme Court decision, Kyllo v. United States, 121 S. Ct. 2038, come into play. There, the high court held that government officials could not use evidence about a home’s interior gathered by thermal-imaging technology. The Utah cases are “troubling,” said Columbia Law School Professor Michael C. Dorf. He said that as technology progresses, he fears that individuals will have diminishing expectations of their privacy rights. In other words, they will expect less privacy as methods employed to encroach upon it advance. And defendants’ expectations in a given privacy case are one part of the test to determine whether their rights were violated. Whether that expectation is objectively reasonable is the second part. In the upcoming decision, Kimball most likely will consider how his colleagues have ruled in two similar matters. In one of those cases, United States v. Mora, No. 2:04 CR 18, U.S. District Judge Ted Stewart ruled that police officers should have obtained a warrant to perform the Ionscan test, which revealed residue of illegal drugs. He found his case similar to the Supreme Court’s because the swab taken from the outside doorknob revealed something otherwise undiscoverable without illegal intrusion. But the judge also determined that other evidence provided probable cause for the home search. In the other case, United States v. Daybell, No. 2:04 CR 242, U.S. District Judge Tena Campbell refused to exclude evidence obtained by a search of the defendant’s home. Before obtaining a search warrant, police found residue of illegal drugs through an Ionscan test. She ruled that using an Ionscan was similar to using a drug-sniffing dog to indicate the presence of illegal substances. The defendant, Dennis Daybell, is charged with intent to distribute methamphetamine and other crimes. Daybell’s attorney, Randall Cox of Salt Lake City, said the real issue is whether the results of an Ionscan relate in any way to what is inside someone’s home. “It does not purport to give you a scan of anything inside the interior of the home,” Cox said. “With all the people coming through my door, they could swab my office door. Does that mean they should be able to search it?”

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