Legal Aspects of Warrant Service with NVG

One of the things I like best about being a travelling instructor is meeting cops from all over the place and talking about the similarities in the job regardless of jurisdiction. Some of the similarities are funny; like nobody has ever owned the pants they were wearing when dope is found in the pockets, “These ain’t my pants Officer”. Some similarities are also command staff personnel who are living in the past and are actually roadblocks to progression. Some of this based on how we did it back in the day, disconnect from the street, and some of it is not embracing technology due to bad information or lack of knowledge. All of those things seem to manifest themselves in regard to NVG use for Warrant Service by SWAT units. “There’s case law that says you can’t use NVG as cops!”, my response has always been “What is the case?”. And then I get the blank…..

Here is the reality, there are plenty of cases that talk about NVG and Thermal image intensifying devices in regards to the government using them to obtain information to obtain search warrants. One of the earliest was U.S. V. Lee, a prohibition era case where a Coast Guard coxswain used a search light to illuminate the deck of a boat. The deck was stacked with cases of illegal booze which were promptly seized and the crew arrested. The supreme court held up that the use of a spotlight, binoculars or other image intensifying devices to see what would be in plain view is not a constitutional violation.  This same type of language is consistent in many capers over the years; U.S. V On Lee, Texas V Brown, U.S. V Dunn to name a few.

Kyllo V. U.S. the landmark case where government officials used thermal imaging devices to “monitor the radiation of heat being transmitted” by Kyllo’s residence. The supreme court ruled that the intrusion was a violation of the fourth amendment. Even though the thermal device could not see into the residence, the court ruled that police could not use thermal devices.

The last case I will talk about is U.S. V. Vela where officers used night vision goggles to view the interior of a vehicle. The court was very clear that “This type of technology is no more intrusive’ than binoculars or flashlights, and federal courts have routinely approved the use of binoculars and flashlights by law enforcement officials.”

So lots of cases out there with challenges to Law Enforcement using vision enhancement tools. All of them deemed to be constitutional with the exception of thermal on a private residence. So why did I bring all this up? I brought it up because all of this case law has to do with obtaining search warrants, NOT SERVING THEM! The SWAT team does not typically work up cases, that is the job of detectives and they should be aware of the case law above. But once the warrant has been approved and signed by a judge, we can use thermal, NVG, flashlights, binos, UAV and damn near anything else to serve the warrant and arrest people and recover evidence! There is NO CASE LAW that I have been able to locate that challenges officers use of thermal and NVG in the execution of an arrest or search warrant. So if your command staff is confused about the two, obtaining versus serving, educate them!

Now because it does not exist doesn’t mean it’s not coming. As NVG use becomes more and more prevalent, cases will emerge and with that potentially bad outcomes for police. So in addition to training them men how to use the equipment, when to use it, how to ID ourselves and so forth, it is important to also train the men on how to properly testify about NVG capability. This very akin to NFDD training wherein officers learn the difference between detonation and deflagration. Words mean things and officers should have a quiver full of words that properly convey what NVG does, and doesn’t do. In layman’s (read jury) terms:

• They are a vision enhancing device similar to a flashlight in a dark room.
• They help see what is there, just like binoculars allow you to see things with clarity at a greater distance.
• They amplify the existing light that is already present.
• A flashlight broadcasts light into the room, NVG broadcasts the existing light directly to the user’s eye.
• They make it easier to discriminate in a dark environment, enhancing subject and officer safety.
• They do not allow you to see “through” anything, they merely enhance what is already there.

Officers should be mindful when testifying so that juries and judges are not confused about the capability. As we move forward with fusion and thermal clip-on devices, it will be interesting to see what the courts do. But like mentioned above, it is likely that nothing will be brought up as it relates to serving the warrant, only in how detectives obtained it.