From what I understand of the technology, it doesn't really see through clothing, does it? Looking through the thread I couldn't find any photos that showed anything like what the MMW machines show. It looked much more like a glorified video camera (junk science?) to me. If I'm wrong in my take on the technology, then my 4th amd. view might change.
As far as "intimate", I agree, he did not mean sex. But his analogy (lady of the house, sauna, bath)" was, in my opinion, his being cute and trying trigger in the reader's mind other situations where people do things in the house while naked. I did not mean to imply that his use of the word "intimate" is what sent my mind to the gutter-- or maybe that's the problem in the first place?
The fact that the SPO-7 does not display a visible image to the operator of what is under the clothes is irrelevant. The fact that the machine indicates to the operator that there MAY be contraband under the clothing is enough to violate the 4th Amendment protections.
The thermo imager in Kyllo did not display a visible image of what was
behind the walls. (
Thermo photo of Kyllo's residence). Because the thermo imager registered heat that MAY indicate a grow operation the police felt they had enough to search. The Constitution disagreed.
Both technologies have the ability to detect both legal and illegal and because of that ability the false positive results would fall way out of the standard set by the Court with the drug dog sniff exception.
Katz shows that warrantless searches, no matter how unobtrusive, are unconstitutional without probable cause set forth in well defined exceptions.
Katz v. United States (paragraph breaks are mine)
The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do.
It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer.
They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate.
They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order.
Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized.
In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end.
Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 U. S. 20, 269 U. S. 33, for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . ." Wong Sun v. United States, 371 U. S. 471, 371 U. S. 481-482. "Over and again, this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U. S. 48, 342 U. S. 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment [Footnote 18] -- subject only to a few specifically established and well delineated exceptions. [Footnote 19]