THE CONSTITUTIONALITY OF PASSIVE

ALCOHOL SENSORS UNDER THE FOURTH

AMENDMENT IN THE WAKE OF KYLLO V.
UNITED STATES
I. INTRODUCTION ........................................ 129
II. EARLY APPLICATION OF THE FOURTH AMENDMENT .......... 131
Ill. RAPID EXPANSION OF THE FOURTH AMENDMENT ............. 132
A. The Katz Decision ................................. 132
B. PrivacyExpectations ofAutomobiles .................. 133
C. Tracking Devices .................................. 136
D. Aerial Searches ................................... 136
E. Dog Sniffs ........................................ 138
IV. EFFECT OF KYLLO V. UNITED STATES ON SENSE-ENHANCED
SEARCHES ........................................... 139
V. THE PLAIN VIEW DOCTRINE ............................. 141
VI. ANALYSIS OF THE PASSIVE ALCOHOL SENSOR ............... 143
A. What is it? ....................................... 143
B. The PAS Under the Microscope of the FourthAmendment.. 145
C. Analysis of the PAS Under State Constitutions ........... 151
D. The Needfor Change ............................... 154
VII. CONCLUSION ......................................... 156

1. INTRODUCTION

Imagine seeing red and blue lights flashing in your rear-view mirror. A
police officer approaches your vehicle and shines a flashlight in your eyes.
Moments later, you are told to exit your car and the officer directs you to
proceed through numerous field sobriety tests. You are certain that you have
not violated any traffic laws. When you ask the officer why he is taking you
through the field sobriety tests, he responds that when he approached you he
tested your breath for alcohol through a Passive Alcohol Sensor (PAS) and
you tested positive.
The PAS is an alcohol detection instrument that is being used by police
officers to aid in the detection of drunk drivers.' The PAS takes samples from
exhaled air and detects whether the air contains alcohol.2 The PAS is placed
six to ten inches from a person's mouth while they are speaking, and it

I. PAS Systems International: Law Enforcement, at http://www.pasintl.om (last visited Sept.

3, 2002) [hereinafter Law Enforcement]. This is a commercial website vending PAS instruments. To
access the specific web page relied upon as a source, from the homepage click the following links: 1.)
"Products" 2.) "Law Enforcement, Corrections, and Military" 3.) "P.A.S. Ill 'Sniffer' Passive Alcohol
Sensor #302" 4.) "General Information."
2. id.
 TEXAS TECH LAW REVIEW [Vol.34:129

registers whether any of the exhaled air contains alcohol.3 This alcohol
detection instrument is different from a preliminary breath test (PBT), also
known as a "breathalyzer," because the subjects are required to blow directly
into a PBT in order to detect the presence of alcohol. 4 The PAS, on the other
hand, can detect the presence of alcohol simply by placing the device within
ten inches of a subject's mouth.5 Therefore, the PAS may be used without a
subject's knowledge and allows officers to formulate enough probable cause
to proceed with a search.6
The PAS technology has been available since the 1980s.' However, there
have not been any reported cases discussing the constitutionality of a search
using PAS technology.' Presently, Texas law allows the use of a PAS as an
indicator of intoxication.9 Recently, however, the Supreme Court handed
down a decision in Kyllo v. United States which restricts the use of heat-
sensing technology.'" The Kyllo opinion raises questions as to what types of
new or old sense-enhancing technology may be used under the reasonable
search doctrine of the Fourth Amendment."
Part II of this comment will cover the principal Supreme Court cases that
have shaped the development of Fourth Amendment rights.' 2 Part Ill will
continue with analysis of the Fourth Amendment and illustrate how society's
expectation of privacy has changed over time with the introduction of
advancing technology. 3
Part IV of this comment will discuss the decision in Kyllo v. United
States and its effect on sense-enhanced searches.' 4 Part V will analyze
whether application of the plain view doctrine can insulate the PAS from
violating the Fourth Amendment." Part VI of this comment will discuss
whether the PAS should pass constitutional muster when balancing the strong
legislative movements and public policy considerations to eliminate drunk
driving against an individual's right to be free from unreasonable searches.' 6

3. Id.
4. Id.
5. Id.
6. See PAS Systems International: PAS Ill Sniffer, at http://www.pasintl.com (last visited Sept.
3, 2002) [hereinafter Sniffer). This is a commercial website vending PAS instruments. To access the
specific web page relied upon as asource, from the homepage click the following links: I.) "Legal" 2.)
"Law Enforcement."
7. Law Enforcement, supra note I.
8. Id.
9. See Fernandez v.State, 915 S.W.2d 572, 576 (Tex. App.-San Antonio 1996, no writ); Tex.
Dep't of Pub. Safety v. Bond, 955 S.W.2d 441, 447 (Tex. App.-Fort Worth 1997, no pet.).
10. 533 U.S. 27, 36 (2001).
II. See id. at 43 (Stevens, J., dissenting).
12. See discussion infra Part II.
13. See discussion infra Part Ill.
14. See discussion infra Part IV.
15. See discussion infra Part V.
16. See discussion infra Part VI.
2002] CONSTITUTIONALITY OF PASSIVE ALCOHOL SENSORS 131

Finally, this comment will argue that continuing technological advances

are whittling away at an individual's right to be free from governmental
intrusions, and that finn limits should be drawn to stop advancing technology
from further eroding Fourth Amendment protections."7

11. EARLY APPLICATION OF THE FOURTH AMENDMENT

The Fourth Amendment to the United States Constitution provides that

each person shall be protected from unreasonable searches and seizures." The
passage of this Amendment demonstrated the Framers' desire to restrain the
potential for governmental abuse of individual privacy rights. 9 The Fourth
Amendment was enacted as a front line of defense against unreasonable
governmental invasions into an individual's privacy interests.2" However, the
seemingly simple language of the Fourth Amendment has caused uncertainty
among the courts in its application. 2' Additionally, by failing to provide a
working definition for the term "unreasonable search," the interpretation of
what constitutes an unreasonable search was left to the courts.22 This has
resulted in confusion among the courts as to how the Fourth Amendment
should be interpreted.23
Early Supreme Court decisions concerning unreasonable searches under
the Fourth Amendment have analyzed the issue on a strict-property-trespass
basis.24 In Olmstead v. United States, the Court held that the wiretapping of
the defendant's telephone line was a reasonable search because the
wiretapping was accomplished without a physical trespass. 25 The Court
reasoned that the wires inserted into the telephone lines were not part of the
defendant's house or office and that any evidence obtained through an
officer's sense of hearing is not an unreasonable search.26 In its early

17. See discussion infra Part VII.

18. U.S. CONST. amend. IV. The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Id.
19. Boyd v. United States, 116 U.S. 616, 641 (1886) (Miller, J., concurring).
20. See Peter Joseph Bober, The "Chemical Signature' of the Fourth Amendment: Gas
Chromatography/Mass Spectrometry and the War on Drugs, 8 SEToN HALL CONST. L.J. 75, 82 (1997)
(noting that the use of sophisticated scanning devices to screen for drugs on individuals at a molecular
level should be held a violation of a person's Fourth Amendment rights).
21. See id.
22. See id. at 82-83.
23. See id.
24. See, e.g., Olmstead v. United States, 277 U.S. 438, 445 (1928).
25. Id. The Supreme Court stated *Itlhe Amendment itself shows that the search is to be of
material things-the person, the house, his papers, or his effects.' Id. at 464.
26. Id.
 TEXAS TECH LAW REVIEW [Vol.34:1i29

confrontations with electronic devices, the Supreme Court upheld its strict-
trespass analysis in determining the constitutionality of these types of new
searches."
However, in 1961 the Court altered its previous strict-trespass analysis
of the Fourth Amendment in Silverman v. UnitedStates.2" In Silverman, the
Court found that the insertion of a "spike mike" in the defendants' home was
a search "based upon the reality of an actual intrusion into a constitutionally
protected area."29 The Court, in holding the search was in violation of the
Fourth Amendment, stated that the officers heard the defendants'
conversations "without their knowledge and without their consent [and in]
these circumstances we need not pause to consider whether or not there was
a technical trespass under the local property law relating to party walls."30
However, with technology advancing at a rapid pace, the Court found
opposition in adhering to its strict trespass based analysis.3 In his dissent in
Lopez v. UnitedStates, Justice Brennan stated that the Court's past decisions 32
had been "outflanked by the technological advances of the very recent past."
Brennan continued by stating "I cannot but believe that if we continue to
condone electronic surveillance by federal agents ... we shall be contributing
to a climate of official lawlessness and conceding the helplessness of the
Constitution."3 Nevertheless, it took four more years after Lopez v. United
States for the majority of the Supreme Court to recognize the potential
problems associated with electronic listening devices and to hand down their
new analysis in Katz v. United States.3

111. RAPID EXPANSION OF THE FOURTH AMENDMENT

A. The Katz Decision

In 1967, the Supreme Court drastically changed its approach and

expanded the Fourth Amendment with the seminal opinion of Katz v. United
States." In Katz, the Court held that the government violated the Fourth
Amendment by attaching a listening device to the outside of a public

27. See id.; Goldman v. United States, 316 U.S. 129, 135-36 (1942) (holding that the installation
of a bugging device in an office wall did not violate the Fourth Amendment because the evidence obtained
through the listening device was not a trespass).
28. 365 U.S. 505 (1961).
29. Id. at 512.
30. Id.at 511.
31. T. Wade McKnight, Passive, Sensory-Enhanced Searches: Shifting the Fourth Amendment
"Reasonableness Burden, 59 LA. L. REV. 1243, 1245 (1999). See Lopez v. United States, 373 U.S. 427,
471 (1963) (Brennan, J., dissenting).
32. 373U.S.at471.
33. Id.
34. 389 U.S. 347 (1967).
35. Id.
2002] CONSTITUTIONALITY OFPASSIVE ALCOHOL SENSORS 133

telephone booth because that action infringed upon a reasonable expectation

of privacy. 6 The Court stated that an individual "did not shed his right to
[privacy] simply because he made his calls from a place where he might be
seen[, n]o less than an individual in a business office, in a friend's apartment,
or in a taxicab... may rely upon the protection of the Fourth Amendment.""
In its opinion, the Court established a two-part test for determining when the
Fourth Amendment affords protection. 8 First, the person must have an
"actual (subjective) expectation of privacy."3" Second, society must recognize
that expectation as reasonable.4" The Court has applied this test in determining
the constitutionality of using a specialized, aerial camera to search a
42
commercial complex, 4' placing a tracking beeper device in an automobile,3
and scanning an individual's home with a thermal imaging device.1

B. Privacy Expectations ofAutomobiles

Historically, courts have recognized that there are diminished Fourth

Amendment protections to privacy in automobiles as compared to homes."
In Carrollv. UnitedStates, officers pulled the defendants over and searched
their car after having reasonable suspicion that the defendants were
bootlegging liquor.4" The Court held that an officer needs only probable cause
to search an automobile suspected of carrying contraband liquor because it
would be impractical to secure a search warrant due to an automobile's ready

36. See id. at 358-59.

37. Id. at 352 (citations omitted). The Court focused on the root of the Fourth Amendment by
stating that the Fourth Amendment "protects people, not places." Id. at 35 1. "What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.
But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally
protected." Id. (citations omitted).
38. Id. at 361 (Harlan, J., concurring). Justice Harlan. in his concurrence, established the twofold
test. Id.
39. Id.
40. Id. Justice Harlan pointed out that a home is usually protected, "but objects, activities, or
statements that [a person] exposes to the 'plain view' of outsiders are not *protected' because no intention
to keep them to himself has been exhibited." Id.
41. Dow Chem. Co. v. United States, 476 U.S. 227, 238-39 (1986) (holding that the use of a
specialized camera does not violate the Fourth Amendment because the open areas of a commercial
property do not enjoy the same level of privacy expectation as an individual's home).
42. United States v. Knotts, 460 U.S. 276, 285 (1983). The court held that the use of a tracking
beeper in a vehicle does not constitute an unreasonable search. id. "A person traveling in an automobile
on public thoroughfares has no reasonable expectation of privacy in his movements." id. at 281.
43. Kyllo v. United States, 533 U.S. 27, 27 (2001). The Supreme Court found that the use of
sense-enhancing technology to obtain information regarding the interior of the home constitutes an
unreasonable search because there is a strong expectation of privacy in the home. Id. at 34.
44. See Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 451(1990); United States v. Martinez-
Fuerte, 428 U.S. 543, 561 (1976); Cardwell v. Lewis, 417 U.S. 583, 584 (1974); Carroll v. United States,
267 U.S. 132, 132 (1925).
45. Carroll, 267 U.S. at 160.
 TEXAS TECH LA W REVIEW [Vol.34:129

mobility. 4" The Court acknowledged that the privacy expectations in an

automobile are lower than a house partly because items contained in an
automobile can easily be moved in order to avoid a valid search warrant. 47
The Court stated that such an interpretation still "fulfills the guaranty of the
Fourth Amendment" because an individual chooses to enter public view and
therefore has less of an expectation to privacy."
The Supreme Court continued its quest to limit the protection of
automobiles from searches in Cardwell v. Lewis." In Cardwell, the Ohio
Bureau of Criminal Investigation impounded Lewis's car, suspecting his
involvement in a homicide, and proceeded to scrape paint samples from the
exterior of his vehicle." The paint samples were later used against him at
trial. " The defendant, Lewis, argued that this type of search was violative of
his Fourth Amendment rights. 2 In reviewing the history of the application of
the Fourth Amendment to searches of automobiles, the Court noted that
"[glenerally, less stringent warrant requirements have been applied to
vehicles."53 The Court stated that another factor making warrantless searches
of automobiles more reasonable than warrantless searches of buildings is that
automobile searches are far less intrusive than searches of buildings.54 The
Court held that where there is low intrusion into one's privacy, and probable
cause for a search exists, the search will be held reasonable."
Sixteen years after Cardwell,the Supreme Court used the concept of a
lower expectation of privacy in automobiles to validate a highway
checkpoint. 6 In Michigan v. Sitz, the Michigan Department of State Police
established a sobriety checkpoint along state roads where police officers
would stop vehicles and examine the drivers for intoxication. 7 If an officer
detected that a driver was intoxicated, the driver would be escorted to another
area where further field sobriety tests would be conducted.58 In deciding the

46. See Id. at 153.

47. See id.
48. See id. at 156.
49. See Cardwell, 417 U.S. at 590.
50. Id. at 587-88.
51. Id.
52. Id. at 585.
53. Id. at 589-90. The Court continued in its historical examination of automobile privacy and
stated that" 'circumstances that furnish probable cause to search a particular auto for particular articles
are most often unforeseeable ...[and] a car is readily movable.' " Id. at 590 (quoting Chambers v.
Maroney, 399 U.S. 42, 50-51 (1970)).
54. Id. The Court found that one reason a search of an automobile is less intrusive is because '[i]t
travels public thoroughfares where its occupants and its contents are in plain view." Id.
55. Id. at 592.
56. Mich. Dcp't of State Police v. Sitz, 496 U.S. 444,444-45 (1990).
57. Id. at 447.
58. Id. After further field sobriety tests were run, if the driver was proved to be intoxicated, the
driver would be arrested. Id. However, "[aill other drivers would be permitted to resume their journey
immediately." Id.
2002] CONSTITUTIONALITY OFPASSIVE ALCOHOL SENSORS 135

constitutionality of the checkpoint, the Court used a balancing test derived

from its opinion in Brown v. Texas. 9 The test used in Brown "involved
'balancing the state's interest in preventing accidents caused by drunk drivers,
the effectiveness of sobriety checkpoints in achieving that goal, and the level
of intrusion on an individual's privacy caused by the checkpoints.' "60 After
balancing the state's interest in preventing drunk driving against the
individual's right to privacy, the Court held that the minimum intrusion on
individual rights was reasonable, and that such checkpoints were
constitutional.6'
More recently, in Indianapolisv. Edmond, the Supreme Court decided
the constitutionality of another highway checkpoint. 62 The checkpoint in
Edmond did not involve drunk drivers or illegal aliens, but was set up in an
effort to interdict illegal drugs.63 Officers stopped 1161 vehicles for
approximately two to three minutes each.' During this time, officers
consistently asked to see driver's license and registration and conducted a
walk-by examination of the vehicle with a narcotics dog in order to detect the
presence of unlawful drugs.65 In Edmond, the Court held that the Fourth
Amendment does not sanction the use of narcotic checkpoints where the
"primary purpose" is "to advance 'the general interest in crime control.' ,66
Further, the Court stated that the checkpoint must have some form of
individualized suspicion in order to keep the narcotics checkpoint from
contravening the Fourth Amendment. 67 The Court concluded its opinion by
noting that its previous opinions regarding an illegal alien checkpoint, sobriety
checkpoint, and license and registration verification checkpoint were still
valid because the checkpoint programs passed the balancing of an individual's
privacy interest against the state's interests.68

59. See id. at 448-49.

60. Id. at 449 (quoting Brown v. Texas, 443 U.S. 47, 50-51 (1979)).
61. See id.at 455. The Court relied on some statistical information in deciding the magnitude of
the State's interest in drunk driving by stating" '[dirunk drivers cause an annual death toll of over 25,000
and in the same time span cause nearly one million personal injuries and more than five billion dollars in
property damage.' " Id. at 451 (quoting 4 W. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 10.8(d), p. 71 (2d ed. 1987)).
62. 531 U.S. 32,48 (2000).
63. See id. at 34.
64. Id. at 35-36. Out of the 1161 vehicles that were stopped, 104 of the drivers were
arrested-"[ifty-five arrests were for drug-related crimes, while 49 were for offenses unrelated to drugs."
Id. at 35.
65. Id. at 35.
66. See id. at 44 (quoting Delaware v. Prouse, 440 U.S. 648, 659 (1979)).
67. See id. at 41-42.
68. See id. at 47; Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990); Delaware v.
Prouse, 440 U.S. 648, 663 (1979) (acknowledging that a state's interest in checking drivers' licences and
registrations was strong enough to justify a roadblock); United States v. Martinez-Fuerte, 428 U.S. 543,
561, 566 (1976) (holding that immigration checkpoints are constitutional due to the strong governmental
interest in protecting the United States' borders).
136 TEXAS TECH LAW RE VIEW [Vol.34:129

C. TrackingDevices

In 1983, the Supreme Court addressed the issue of whether the Fourth
Amendment extends to protect a person's privacy while traveling in an
automobile. 9 In United Slates v. Knots, police officers placed a radio
transmitter into a five-gallon chloroform drum that the defendants had
purchased.70 Police officers were then able to track the defendants to their
cabin in Wisconsin by monitoring the beeper signals in the chloroform drum
and keeping visual surveillance of the vehicle."' With the help of the beeper
signal, and visual surveillance of the defendants, the police were able to obtain
a search warrant and discovered that the defendants had a functioning drug
laboratory.' 2 The Court, in holding that the search was reasonable as
contemplated by the Fourth Amendment, stated that "scientific enhancement
of this sort raises no constitutional issues which visual surveillance would not
also raise." 3 The Supreme Court explained that "[n]othing in the Fourth
Amendment prohibited the police from augmenting the sensory faculties
bestowed upon them at birth with such enhancement as science and
technology afforded them in this case."' 4 In effect, the Court expanded the
definition of "plain view" by holding that the defendant was in plain view
even though at times they had to rely on the electronic tracking beeper to
relocate them."
In Knolts, the Court also emphasized that the defendants were out on
public streets when they were being monitored.' "A person traveling in an
automobile on public thoroughfares has no reasonable expectation of privacy
in his movements from one place to another."" Therefore, the Court held that
people should expect a lower level of privacy when traveling in public.' 8

D. Aerial Searches

In Dow Chemical Co. v. UnitedStates, the Court held that no violation

of the Fourth Amendment occurred when the Environmental Protection
Agency (EPA) used an "aerial mapping camera" to take photographs from
altitudes of 1200, 3000, and 12,000 feet above Dow's industrial complex

69. United States v. Knotts, 460 U.S. 276, 277 (1983).

70. Id. at 277.
71. Id. at 278.
72. Id. at 279.
73. Id. at 285.
74. Id. at 282.
75. See id.
76. See id. at 281.
77. Id.
78. Id.
2002] CONSTITUTIONALITY OFPASSIVE ALCOHOL SENSORS 137

without a warrant." The Court reasoned that the open areas, which Dow
argued were unreasonably searched, are more analogous to an open field than
to curtilage surrounding a private home. 0 Because Dow's open area was
more consistent with an open field, the Court held that the area is open to the
observations of persons lawfully traveling in public airspace."s
The Court emphasized that an owner of a private residence has a higher
level of expectation of privacy than an owner of commercial property. 2 The
Court noted that there could have been potential Fourth Amendment problems
if the surveillance equipment was "not generally available to the public, such
as satellite technology." 3 In this case, the "EPA was not employing some
unique sensory device that, for example, could penetrate the walls of buildings
and record conversations in Dow's plants, offices, or laboratories, but rather
a conventional, albeit precise, commercial camera commonly used in
mapmaking." ' The Court further explained that the fact that human visual
perception is improved does not automatically raise Fourth Amendment
issues."
Three years later, the Court again examined Fourth Amendment
protections applicable to aircraft flyovers in Floridav. Riley. 6 In Riley, the
United States Supreme Court reversed the Supreme Court of Florida's
decision that the Fourth Amendment was violated when a sheriff used a
helicopter to fly over the defendant's property." The sheriff used these
observations, made four hundred feet above the defendant's greenhouse, to
obtain a search warrant to search the premises for marijuana plants.8 The
Court stated that "the home and its curtilage are not necessarily protected from
inspection that involves no physical invasion." 9 " 'In an age where private
and commercial flight in the public airways is routine, . . . [t]he Fourth
Amendment simply does not require the police traveling in the public airways
at this altitude to obtain a warrant in order to observe what is visible to the
naked eye.' " The Court, in essence, found that the Fourth Amendment
protection did not extend to the defendant in this case simply because a person
cannot have a subjective expectation of privacy in an area that the person does
not adequately protect from a routine publicly used method of transportation-

79. 476 U.S. 227,239 (1986).

80. Id.
81. Id.
82. Id. at237-38.
83. Id. at 238.
84. Id.
85. Id.
86. 488 U.S. 445,447-48 (1989).
87. Id. at 448-50.
88. Id. at448.
89. Id. at 449.
90. Id. at 450 (quoting California v. Ciraolo, 476 U.S. 207, 215 (1986)).
 TEXAS TECH LAW REVIEW [Vol.34:129

the helicopter.9' The Supreme Court examined aerial searches and held that
the Fourth Amendment was not violated by new technological
advancements."

E. Dog Sniffs

The Supreme Court's interpretation of the Fourth Amendment in many

"dog sniff' cases has left the impression that sense-enhanced searches are
reasonable.93 In United States v. Place, the United States Supreme Court
determined that the use of canines to detect narcotics did not constitute a
search." The Court determined that the minimal intrusion involved in a dog
sniff and the enforcement problems associated with drug trafficking
outweighed an individual's competing privacy interest." The Court reasoned
that a dog sniff "does not expose noncontraband items that otherwise would
remain hidden from public view, as does, for example, an officer's
rummaging through the contents of the luggage."' Moreover, a dog sniff will
only disclose whether or not there are narcotics present on the item that the
officer is searching, and the information that the officer obtains from the
search is very limited in nature.9" However, Justice Brennan, in his
concurrence, noted that the use of canines adds another dimension to human
senses and represents greater privacy concerns.9
Additionally, dog sniffs are not a "fool-proof' method to detect
narcotics.99 In Doe v. Renfrow, a dog sniff alerted school officials that a
student had concealed illicit drugs on herself."ro But in actuality, the student
had only been playing with her dog, which happened to be in heat that
morning.'
Dog sniff cases can easily be analogized to the Supreme Court's
decisions relating to automobile searches. The Court approaches both
automobile and dog sniff cases by balancing the State's interest in the activity

91. Id. at 450-5 1. The Court noted that, under applicable Florida law, any member of the general
public could have legally viewed the defendant's mobile home and greenhouse from a helicopter. Id. at
451.
92. See Id. at 445; Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986).
93. See United States v. Place, 462 U.S. 696, 707 (1983); Doe v. Renfrow, 475 F. Supp. 1012,
1020 (N.D. Ind. 1979).
94. 462 U.S. at 698.
95. Id. at 703.
96. Id. at 707.
97. Id.
98. Id. at 719-20 (Brennan, J., concurring). Justice Brennan compared the dog sniff to the use
of the electronic tracking beeper in Knotts and found that the dog sniff raises concerns because police
officers are doing more than simply improving their own senses. Id. They are using another's senses. Id.
99. See Doe v. Renfrow, 475 F. Supp. 1012, 1017 (N.D. Ind. 1979).
100. Id.
101. Id.
2002] CONSTITUTIONALITY OF PASSIVE ALCOHOL SENSORS 139

at issue against the individual's privacy interest.' The CarrollCourt found

that an individual operating a vehicle on public thoroughfares automatically
should expect to have a lower level of privacy in much the same way as the
Place Court found that an individual who enters La Guardia Airport with
luggage expects lesser privacy protection. 3 In both types of cases, the Court
seems to have put emphasis on the location of the person when the alleged
search occurred, as well as the strength of the State's interest."°4 In both dog
sniff cases and automobile search cases, courts recognize that individuals
lower their privacy expectations by voluntarily traveling in public. 05

IV. EFFECT OF KYLLO V. UNITED STATES ON SENSE-ENHANCED SEARCHES

The Supreme Court recently handed down an opinion that will reshape
and redefine the constitutionality of many sense-enhancing technologies."°
In Kyllo v. United States, police officers used a thermal imaging device to
scan a home to detect infrared radiation, which cannot be seen by the "naked
eye."' 17 The scan revealed that Kyllo's home was relatively warmer than
another house located in the same neighborhood.0 8 The officers concluded
that Kyllo was using halide lights to grow marijuana, and with this
information along with utility bill records, the officers were able to obtain a
warrant to search Kyllo's house."° The district court found that the thermal
imager was a non-intrusive device that did not show the individual's activities
occurring inside the home, and therefore, the district court held the use of the
thermal imaging device to be constitutional." 0 The Supreme Court
disagreed."'
The Supreme Court initially acknowledged that advancing technology
has affected the "realm of guaranteed privacy.""' The Supreme Court further
held that "obtaining by sense-enhancing technology any information regarding
the interior of the home that could not otherwise have been obtained without
physical 'intrusion into a constitutionally protected area,' constitutes a search

102. See Place, 462 U.S. at 703; Carroll v. United States, 267 U.S. 132, 153 (1925).
103. See Place, 462 U.S. at 703; Carroll, 267 U.S. at 153, 156.
104. Place, 462 U.S. at 703; Carroll, 267 U.S. at 153, 157.
105. See Place, 462 U.S. at 703; Carroll, 267 U.S. at 153, 156.
106. See Kyllo v. United States, 533 U.S. 27 (2001).
107. Id. at 29. The thermal imager 'converts radiation into images based on relative warmth-black
is cool, white is hot, shades of gray connote relative differences.* Id. at 29-30.
108. Id.
109. Id.
110. Id. The court of appeals initially reversed the district court, but later that opinion was
withdrawn. Id. The court of appeals' revised opinion affirmed the district court's opinion by finding that
Kyllo had no subjective expectation of privacy because he did not make an effort to conceal the heat
emanating from his home. Id. at 31. The Supreme Court granted certiorari. Id.
Ill. Id. at 40.
112. Id.at34.
 TEXAS TECH LAW REVIEW [Vol.34:129

-at least where (as here) the technology in question is not in general public
use."" ' This decision emphasized the importance the United States Supreme
Court has placed on the sanctity of the home, the importance of the general
public use requirement, and the need for protecting individual privacy rights
4
from advancing technology.'"
By acknowledging, in Kyllo, that the technology used by police must be
in "general public use" to be held constitutional, the Court has laid the
groundwork for some doubt in the reasonableness of other search methods as
well." 5 The general public use requirement forces courts to determine what
general public use means and whether a search once found unconstitutional
may now be found to be constitutional if the technology over time has become
available to the general public." 6 The Court in Kyllo emphasized that if it did
not find this type of search unconstitutional then homeowners would be "at the
mercy of advancing technology."" 7
The dissent in Kyllo argued that the thermal imaging search should be
found constitutional because the same information could have been gained
through other lawful methods." 8 However, in response the majority points out
that the fact that the same information might havebeen obtained in a lawful
manner does not insulate the information thus obtained.' Inferences do not
insulate a search.' 20 The Court, through the Kyllo decision, reaffirmed the
high level of privacy expectation in a home.' 2 ' Additionally, the Court
reaffirmed the requirement that the technology used in a search must be in
general public use.' 2
The Kyllo decision is another case that will be used in reshaping the
Fourth Amendment. Until now, many recent decisions have expanded the23
scope of the Fourth Amendment to validate new forms of technology.

113. Id. (quoting Silverman v. United States, 365 U.S. 505, 512 (1961)).
114. See id.at 33.
115. See id.at 34.
116. See, supra notes 83-92 and accompanying text.
117. Kyllo, 533 U.S. at 35.
118. See id. at 43 (Stevens, J., dissenting).
119. Id. at 35 n.2. (Scalia, J.,
majority opinion) The Court labels as irrelevant the dissent argument
that the amount of heat emanating from Kyllo's home might have been obtained by looking at the
advanced rate in which the snow melts offhis roof as compared to the snow on his neighbors' roofs. Id.
120. Id. at 36.
121. See id. at40.
122. Id. The dissent argues that public officials should not be forced to avert their eyes, their senses
or "their equipment" from detecting heat or other emissions that an individual voluntarily allows to escape
from the confines of his or her home. Id. at 45 (Stevens, J., dissenting). The dissent further points out that
this type of search should be held constitutional because just as a dog sniff" 'discloses only the presence
or absence of narcotics' " a thermal imaging device" 'discloses only the presence or absence of' " heat.
Id. at 47-48 (Stevens, J., dissenting) (quoting United States v. Place, 462 U.S. 696, 707 (1983)).
123. See, e.g., Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986) (allowing the use of a
specialized camera); Florida v. Riley, 488 U.S. 445, 450 (1989) (allowing the use of a helicopter over an
individual's home); United States v. Knotts, 460 U.S. 276, 285 (1983) (allowing police officers to use an
electronic tracking beeper).
2002] CONSTITUTIONALITY OF PASSIVE ALCOHOL SENSORS 141

However, with advancing technology radically changing what can be seen by

a simple imaging device, the Supreme Court found that it was necessary to
restrict the use of violative technology that is used to search an individual's
home to technology that is publicly available. 24 However, many questions are
left unanswered by the Court, including whether some sense-enhanced
searches could be validated under the plain view doctrine."

V. THE PLAIN VIEW DOCTRINE

I
The plain view doctrine enables officers to use their senses to reveal
information that is readily apparent. 26 Many advocates of the Passive
Alcohol Sensor (PAS) argue that it is constitutional under the plain view
doctrine because the flashlight sensor may be seen as an extension of the
officer's nose.' Courts have recognized that while "searches conducted
without a warrant are per se unreasonable, seizing contraband in plain view
does not run afoul of the Fourth Amendment."'"" For a search to qualify under
the plain view doctrine, a three-pronged test must be satisfied: (I) the officer
must be lawfully in a position to view the object; (2) the officer must discover
the "incriminating evidence 'inadvertently,' " meaning the officer must not
have prior knowledge of the location of the "incriminating evidence"; and (3)
"it must be 'immediately apparent' to the police that the items they observe
may be evidence of a crime, contraband, or otherwise subject to seizure." '29
The Supreme Court decided a seminal case dealing with the plain view
doctrine in Coolidge v. New Hampshire.3 ° In Coolidge, after accumulating
evidence for two weeks against Coolidge for murdering a fourteen year old
girl, police officers arrested him at his residence.' After arresting Coolidge,
the police proceeded to impound his 1951 Pontiac, which was suspected of
being used in the crime, and took vacuum samples from it.'32 The police
argued that the search of Coolidge's 1951 Pontiac was a reasonable search
because it fell under the plain view doctrine, which is an exception to the
warrant requirement.'
The Supreme Court held that the police search of the defendant's car
failed to fall under the ambit of the plain view doctrine, because the police had
prior knowledge of the location of the evidence and had an opportunity to

124. See Kyllo, 533 U.S. at 40.

125. See id.
126. See Texas v. Brown, 460 U.S. 730, 737 (1983).
127. Law Enforcement, supra note I.
128. Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).
129. See Brown, 460 U.S. at 737 (citing Coolidge v.New Hampshire, 403 U.S. 443,465-68 (1971)).
130. 403 U.S. 443 (1971).
131. Id. at 446-47.
132. Id. at 447-48.
133. Jd. at 464.
 TEXAS TECH LAW REVIEW [Vol.34:129

secure a valid search warrant. 34 The Court noted that it has "never permitted
the legitimation of a planned warrantless seizure on plain-view grounds...
and to do so here would be flatly inconsistent with the existing body of Fourth
Amendment law." 3 ' Further, the plain view doctrine cannot be used tojustify
a "general exploratory search," allowing officers to continually search for
items until finally they stumble upon something incriminating.'36
Twelve years later, the Supreme Court again had an opportunity to re-
examine the requirements of the plain view doctrine.' In Texas v. Brown, an
officer arrested Brown at a driver's license checkpoint in Fort Worth for
possession of narcotics.' 38 The officer noticed a small, green balloon fall out
of Brown's pocket and observed a powdery substance in the glove box.'39 The
officer instructed Brown to step out of the car and proceeded to search for and
uncover heroin in the car.' 40
The Supreme Court held that the officer complied with the requirements
of the plain view doctrine as found in Coolidge v. New Hampshire.4 ' The
Court pointed out that previous precedent established that an officer may seize
a suspicious object immediately if the officer is lawfully in that particular
place. 42 Further, the Court stated that "[n]umerous other courts have agreed
that the use of artificial means to illuminate a darkened area simply does not
43
constitute a search, and thus triggers no Fourth Amendment protection."'
The Court also explained that Brown had no expectation of privacy in the
contents in the car because anyone in the general public could walk by
44
Brown's car and view the contents from a number of different angles.'
Therefore, the Court concluded that there is no expectation of privacy that
45
shields the visible area of the car.
The Supreme Court took the opportunity in Brown to clarify what degree
of certainty was required to meet the immediate apparent requirement of the
plain view doctrine. 46 The Court stated that a " 'practical, nontechnical'

134. Id.at 472.

135. Id. at 471 n.27.
136. Id. at 466.
137. Texas v. Brown, 460 U.S. 730 (1983).
138. Id. at 733-34.
139. Id. Officer Maple, upon noticing the balloon, shined his flashlight into the car and bent down
in order to get a better look inside the car for the presence of narcotics. Id.
140. Id. at 734.
141. Id.at736,744.
142. Id. at 739.
143. Id. at 740. See, e.g., United States v. Chesher, 678 F.2d 1353, 1357 n.2 (9th Cir. 1982) (stating
that turning on alight in a laboratory does not mean that the laboratory was not in plain view, because
artificial light does not invalidate a lawful plain view seizure); United States v. Hood, 493 F.2d 677, 680
(9th Cir. 1974) (finding that the officer's use of a flashlight to look inside of a car did not violate the plain
view doctrine).
144. Brown, 460 U.S. at 740.
145. See id.
146. Id.at741.
2002] CONSTITUTIONALITY OF PASSIVE ALCOHOL SENSORS 143

probability that incriminating evidence is involved is all that is required." 4"

Therefore, the Court determined that the officer's previous police experience
allowed the immediately apparent requirement to be met, and further, allowed
the search to be considered reasonable under the Fourth Amendment.'4 8

VI. ANALYSIS OF THE PASSIVE ALCOHOL SENSOR

A. What is it?

The Passive Alcohol Sensor (PAS) is a non-invasive alcohol screening

instrument.' 49 The PAS samples air that is exhaled for the "presence or
absence of alcohol."'" The PAS aids police officers in detecting and catching
drunk drivers.' Police officers place the PAS six to ten inches from a
subject's mouth.'5 2 While the driver speaks, a pump located inside the sensor
will inhale the ambient air through a fuel cell.'" The fuel cell will then light
up a color chart located on the side of the PAS notifying the police officer if
the driver tested positive or negative for alcohol. 'I
In contrast to many preliminary breath testers, the PAS not only samples
air exhaled from an individual, but it also samples air located in front of and
behind the subject.'55 Additionally, the PAS does not require contact of any
kind with an individual." 6 The sensor is designed to be "unaffected by
acetone, paint and glue fumes, foods, confectionery, methane, and practically
any other substance likely to be found in the breath [other than alcohol]."' 57
Further, the PAS has been proven effective in detecting the alcohol contained
in a driver's breath as well as in open containers.'

147. Id. at 742 (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). The Court expanded
the probable cause requirement stating,
"The process does not deal with hard certainties, but with probabilities. Long before the law
of probabilities was articulated as such, practical people formulated certain common-sense
conclusions about human behavior; jurors as factfinders are permitted to do the same-and so
are law enforcement officers. Finally, the evidence thus collected must be seen and weighed
not in terms of library analysis by scholars, but as understood by those versed in the field of
law enforcement."
Id. (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).
148. Id.
149. Sniffer, supra note 6. The PAS can be used without the subject's knowledge or active
participation. Id.
150. Law Enforcement. supra note I.
151. Id.
152. Id.
153. Sniffer. supra note 6.
154. Id.
155. Id.
156. Id.
157. Id.
158. Id. The PAS can register alc..ohol in "enclosed spaces such as vehicles, aircraft, trains and
rooms.' Id. Further, the PAS has proven useful in both discouraging drug use in the construction
 TEXAS TECHLA W REVIEW [Vol.34:129

The PAS is produced in many designs.'59 The two most popular models
have the PAS built into a flashlight and into a medical chart.'I The PAS III
Sniffer (flashlight version) helps police officers, while the PAS Ilia Screener
(medical chart version) assists doctors. 6 ' With the PAS located inside the
flashlight, the officer can test drivers for the presence of alcohol without their
consent or knowledge.' 62 For this reason, not all groups have accepted the
PAS with open arms. 63
The American Civil Liberties Union has "turned its nose up at the
Sniffer, saying [it] is an invasion of privacy and a violation of the Fourth
Amendment's protection against unreasonable search and seizure. " " It
argues that this new device does not fit within the plain view doctrine because
the officer does not use his own senses, but uses the senses of an alcohol-
measuring device.' 65 However, proponents of the PAS argue that it does not
violate the plain view doctrine because "[t]he passive sensor simply improves
upon the human olfactory capability in the same way that wearing glasses
improves the sight of near-sighted individuals."'"
While there are some groups that strongly oppose the PAS because of
Fourth Amendment concerns, other groups are strongly embracing the
device.' 67 Police officers are one group that seems to be in favor of the
PAS.'6 8 One police department, located in Oceanside, California, estimated
that the detection rate of drunken drivers had directly increased approximately
fifty percent in the first two years after using the PAS. 69 These devices are

industries, as well as aiding emergency medical technicians in determining whether an unconscious patient
has consumed any alcohol. Id.
159. See PAS Systems Intemational: Products, at http://www.pasintl.com (last visited Oct. 19,
2002). This is a commercial website vending PAS instruments. To access the specific web page relied
upon as a source, from the homepage click the following links: I.) "Products" 2.) "Law Enforcement,
Corrections, Military"
160. See id.
161. See id.
162. Sniffer, supra note 6.
163. Alcoholism: 'Sniffer' Device a Violation of Privacy?, at http:/Ialcoholism.about.com/libraryl
weekly/aa000823a.htm (last visited Oct. 19. 2002) [hereinafter Alcoholism].
164. Id.
165. Id.
166. Id.
167. See American Automobile Association, Sniffing Out Drunk Drivers: New Devices Make It
Harder to Hide, at http://www.csaa.com/globallarticedetail/O,7416,1004040000%257c217,00.html (last
visited Oct. 19, 2002) [hereinafter Sniffing Out Drunk Drivers].
168. See id.
169. Id. Ken Cowing, a police officer in California, stated that he was once able to locate a forty-
ounce bottle of alcohol hidden under a back seat by using the PAS. Id. Cowing also stated,
I had one individual [on whom] I couldn't initially detect the smell of alcohol. He had a burrito
in his mouth that was horrendously large-it was sticking out both ends of his mouth. He just
sat there [while I approached]. My first thought was, "Either he loves this burrito or he's trying
to mask the odor of alcohol." When I got to the window, my flashlight indicated three bars
immediately.
Id. (alterations in original).
2002] CONSTITUTIONALITY OFPASSIVE ALCOHOL SENSORS 145

now being used to test students at high school dances, trainers and jockeys
before horse races, inmates and visitors at prisons, commercial trucking
drivers, and the general public at sporting events. 70 One of the most recent
groups to back the PAS has been Mothers Against Drunk Driving (MADD).' 7
MADD showed their support for the PAS by donating forty PAS units to
Dallas, Texas, police departments.' 72 Although there are many groups that
have voiced their support for this alcohol detection device, one question still
remains unanswered: Is the PAS a reasonable search under the Fourth
Amendment?

B. The PAS Under the Microscope of the FourthAmendment

Under the Supreme Court's recent decisions implicating Fourth

Amendment concerns, it appears at first glance that the Court would allow the
PAS to pass constitutional muster.'" It seems likely that the Supreme Court
would attempt to draw an analogy between the PAS and canine sniffs. 74 After
all, if one sets aside the electronic aspect of the PAS, the canine sniff and the
PAS (Sniffer) are nearly identical. 7 The PAS appears to be an electronic dog
able to sniff out alcohol just as trained canines are able to sniff out
narcotics.'76 The information gleaned by either method is less intrusive than
a typical search, and the information gleaned from the searches are limited in
nature. 77
Supporters of the PAS are likely to point out the similarities of the
exhaled alcoholic waste with the garbage that is left on the streets.7 Similar
to discarded garbage, people do not maintain a subjective privacy expectation

170. Id.
17 1. See MADD Happenings: A Bright Idea, at http://www.madd.org/driven/springO/happenings.
shtml (last visited August 31, 2001) (no longer available online; on file with author).
172. Id.
173. See Erik G. Luna, Sovereignty and Suspicion, 48 DUKE L.J. 787, 825-26 (1999). According
to Professor Luna:
The definitional quandary is compounded by a Supreme Court arguably out of touch with
society's true expectations of privacy. Whether infected by some form of hindsight bias, or a
distancing effect, the Court has allowed increased police discretion in surveillance activities
despite the privacy expectations of most citizens. Law enforcement may ignore "no
trespassing" signs and jump over locked fences to sneak onto the property surrounding homes.
Id. at 827.
174. See United States v. Place, 462 U.S. 696, 707 (1983).
175. Sniffer. supra note 6.
176. See Place. 462 U.S. at 707. Justice Brennan's concurrence raised the question of whether a
dog "adds a new and previously unobtainable dimension to human perception." Id. at 719 (Brennan, J.,
concurring). With these reservations in allowing police officers to use dogs to enhance their senses, there
will be greater privacy concerns by allowing electronic senses to substitute an officer's senses. See id. at
719-20.
177. See id. at 707 (O'Connor, J., majority opinion); Sniffer, supra note 6.
178. See McKnight, supra note 31, at 1255 (showing that many courts have analyzed the
similarities of heat emanating from a person's home with discarded garbage).
 TEXAS TECH LAW REVIEW [Vol.34:129

in exhaled air that is released, because once the air is exhaled, it is accessible
to sensory observations by many members of the public.'79 Courts holding
that people do not have a subjective expectation of privacy that society will
recognize as objectively reasonable in their discarded garbage, seems to
bolster the argument that people's exhaled air also should not receive shelter
under the Fourth Amendment.8 0 However, the one distinction that must be
recognized is that people can choose whether or not to discard garbage on the
street-side; whereas, people do not have a choice in exhaling air.''
Homeowners must make a voluntary, conscious choice to walk their trash to
the curb and leave it for the world to see." 2 Individuals, on the other hand,
have no direct control, try as they might, on whether they want to breath out
air.
The Supreme Court's recent decision in Kyllo concerning thermal
imaging devices appears to be analogous to the PAS."s3 Many opponents of
the PAS may hang their hats on this decision to avoid the continued gradual
erosion of the Fourth Amendment protections. One of the reasons the
Supreme Court afforded Fourth Amendment protection to the homeowner in
Kyllo, and in the future may protect an individual from the PAS, is because
the thermal imaging technology is not in general public use.'"' However, the
general public use requirement does not protect an individual's privacy rights
once a device becomes so widely accepted that an individual no longer
expects protection from it, and society no longer recognizes that protection as
objectively reasonable.' An example of the technology which satisfies the
public use requirement can be found in Floridav. Riley, where the Supreme

179. See Calitomia v. Greenwood, 486 U.S. 35, 40 (1987) (noting that garbage left by the curb is
"readily accessible to animals, children, scavengers, snoops, and other members of the public").
180. See id. at 39.
18 1. See McKnight, supra note 31, at 1255; see also Greenvood, 486 U.S. at 50-51 (Brennan, J.,
dissenting) (arguing that a person's trash should be protected as private). Justice Brennan, in a stem
dissenting opinion, stated,
[a] single bag of trash testifies eloquently to the eating, reading, and recreational habits of the
person who produced it. A search of trash, like a search of the bedroom, can relate intimate
details about sexual practices, health, and personal hygiene. Like rifling through desk drawers
or intercepting phone calls, rummaging through trash can divulge the target's financial and
professional status, political affiliations and inclinations, private thoughts, personal
relationships, and romantic interests. Itcannot be doubted that a sealed trash bag harbors
telling evidence of the "intimate activity associated with the 'sanctity of a man's home and the
privacies of life,' *which the Fourth Amendment is designed to protect.
Id. at 50-51 (Brennan, J., dissenting) (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)).
182. See McKnight, supra note 31, at 1255.
183. Kyllo v. United States, 533 U.S. 27, 29 (2001) (analyzing the constitutionality of a non-
intrusive device that shows crude images of heat that are radiated from the external structure of a house).
184. Id. at 34. The Court was particularly concerned with the effect advancing technology may
have on privacy secured to individuals pursuant to the Fourth Amendment. Id. The Court acknowledged
that technology will affect the degree of privacy a person is afforded, but refused to allow police
technology not in general public use to dissolve the minimum expectation of privacy. Id.
185. See Florida v. Riley, 488 U.S. 445, 450-51 (1989).
2002] CONSTITUTIONALITY OFPASSIVE ALCOHOL SENSORS 147

Court found that helicopters are in general public use, and an individual could
not expect that his property was protected from visual viewing when
commercial flights are so routine in this country. 186
In contrast, the PAS seems to be an item that would not satisfy the
general public use requirement. 8 7 Similar to the thermal imaging device, the
PAS allows officers to obtain information that could not otherwise be
obtained through use of the officer's own senses. "' The thermal imager and
the PAS devices electronically measure heat emanating from a home and
alcohol emanating from an individual, respectively.'89 In light of this recent
Supreme Court decision and past precedent, it seems very likely that, at the
present time, the PAS does not satisfy the general public use requirement.
While at first, the use of the PAS appears to be restricted under the logic
in Kyllo, some would likely argue the two devices are distinctly different since
the thermal imager is used on an individual's home, while the PAS is used on
an individual in his automobile.'9 Automobiles have historically been
afforded substantially less protection than the sanctity of the home.' 9' An
argument can be made that, in Kyllo, the Court was more interested in
protecting the "intimate" details of the home from technology, rather than
merely protecting every individual from technology not in general public
use.'92 This intimate detail requirement would probably not protect an
individual subjected to the PAS because the PAS does not reveal intimate
details in which an individual would have a subjective expectation of privacy
that society would recognize as objectively reasonable in one's alcohol-tainted
breath.' 93 Further, opponents contend that not only are there no intimate
details revealed, but since the search is conducted in an automobile with

186. Id. The Court notes that any member of the general public could have used a helicopter and
flown over the defendant's property and observed the same property items that the officer observed. Id.
at 451.
187. See Kyllo, 533 U.S. at 34.
188. See Law Enforcement, supra note 1.
189. Kyllo, 533 U.S. at 29-30; Law Enforcement. supra note I.
190. See Kyllo, 533 U.S. at 29-30; Law Enforcement, supra note I.
191. See Mich. Dep't of State Police v. Sitz 496 U.S. 444. 455 (1990) (finding a highway drunk
driving checkpoint was a reasonable search because of the minimum intrusions to an individual in an
automobile); United States v. Knotts, 460 U.S. 276, 281 (1983) (stating that '[a] person traveling in an
automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one
place to another"), Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (finding that an automobile search is
reasonable because warrantless searches of automobiles are not nearly as intrusive as warrantless searches
of buildings); Carroll v. United States, 267 U.S. 132, 153 (1925) (finding privacy expectations in an
automobile are lower than in a house because automobiles can be easily moved).
192. See Kyllo, 533 U.S. at 37-38. The Court stated that even crude technology could reveal
"intimate" details that an individual has a significant privacy interest in. Id. at 38. For example, the device
could determine "at what hour each night the lady of the house takes her daily sauna and bath-a detail that
many would consider 'intimate.'- Id.
193. See Law Enforcement, supra note I.
 TEXAS TECH LAW REVIEW [Vol.34:129

historically less protection than homes, the balancing scale should tip in favor
of allowing use of the PAS to pass constitutional muster. 19
The manufacturer of the PAS argues that this screening device is an
acceptable method of testing an individual for alcohol consumption.' 9 It
bases this assertion on the fact that the device is non-intrusive and does not
increase the amount of time it takes for an officer to conduct a normal traffic
stop."% The two ways in which the manufacturer justifies the reasonableness
of this type of search are that the search is not an evidential test and that the
information gathered falls within the plain view doctrine. 9 7 It contends that
the PAS will allow an officer to form the required probable cause in order to
conduct a field sobriety test without the subject knowing.'98 The producers
further assert that the plain view doctrine will shelter the PAS because the
officer can make observations using his senses from a lawful place without
implicating the Fourth Amendment.199 It states that "[p]eople in close
proximity to any living being breathe and necessarily inhale a sample of air
that may include expired breath," and therefore, an officer using his unaided
nose (or the PAS) will be protected by the plain view doctrine.2 o
While protection under the plain view doctrine appears strong, this
conclusion is not necessarily correct. To qualify under the plain view doctrine
an officer must (I) be lawfully in a position to view the object, (2) discover
the evidence inadvertently, and (3) the evidence must be "immediately
apparent" to the officer that it could be part of a crime."' While use of the
PAS would pass the first and second requirement of the plain view doctrine,
it most likely would fail to pass the third requirement. When an officer stops
an individual, whether at a traffic stop or not, the presence of alcohol on an
individual's breath is not always readily apparent to that officer. If it were,
there would be no need for the PAS. The Supreme Court has established that
the plain view doctrine cannot be used to justify a "general exploratory
search" which would allow officers to continually search for items until they
stumbled upon something incriminating." 2 Although the Supreme Court has
recognized the ability of officers to use flashlights to illuminate darkened
areas without implicating any Fourth Amendment concerns, this does not give
police officers the license to use any and every sense-enhancing technology

194. See Alcoholism, supra note 163.

195. Law Enforcement, supra note 1.
196. Id.
197. Sniffer, supra note 6; Law Enforcement, supra note I.
198. Sniffer, supra note 6. The manufacturer warns that the operator of the device should not
present the results of this test as evidence in court, but should merely use the results to further develop
probable cause to continue a search. Law Enforcement, supra note I.
199. Law Enforcement, supra note I.
200. Id.
201. Texas v.Brown, 460 U.S. 730, 737 (1983) (citing Coolidge v. New Hampshire, 403 U.S. 443,
465-68 (1971)).
202. Coolidge, 403 U.S. at 466.
2002] CONSTITUTIONALITY OFPASSIVE ALCOHOL SENSORS 149

currently available to them. 3 The plain view doctrine, which on its face only
allows legal observations in plain sight, would be seriously undermined if
technology such as the PAS were validated.2 An officer could use his own
hearing, smelling, or sight to observe evidence and be protected under the
plain view doctrine but to allow an officer to use an electronic smelling device
seems to be stretching previous court decisions thin.2"'
One argument in favor of the PAS that cannot be overlooked is that the
states have a strong and legitimate interest in protecting citizens from drunken
drivers.2"a The state "must balance the nature and quality of the intrusion on
the individual's Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion."" 7 No one can
legitimately argue that drunk driving is not a major problem.08 Currently,
25,000 people are killed each year in alcohol-related traffic accidents.2"
There is evidence that one out of every two people in America will be in an
alcohol-related accident in their lifetime.21 ° Our country is suffering more
deaths at the hands of drunken drivers each year than we have suffered in
many wars that our country has faced.21' Not only does drunk driving injure
our nation as a result of the numerous traffic deaths and injuries caused by this
2 12
never ending plague, but drunk driving also has grave societal costs.
Drunken driving results in broken homes and families.2" 3 Further, drunken
21 4
driving cost taxpayers between $21 billion and $24 billion every year.
Though many of these statistics are concerning, even more concerning for

203. Brown, 460 U.S. at 740. See. e.g., United States v. Chesher, 678 F.2d 1353, 1357 (9th Cir.
1982) (stating that turning on a light in a laboratory does not mean that the laboratory was not in plain
view because artificial light does not invalidate a lawful plain view seizure); United States v. Hood, 493
F.2d 677, 680 (9th Cir. 1974) (finding that the officer's use of a flashlight to look inside of a car did not
violate the plain view doctrine).
204. See Coolidge, 403 U.S. at 466.
205. See Brown, 460 U.S. at 739.
206. See Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 449 (1990).
207. United States v. Place, 462 U.S. 696, 703 (1983).
208. Sitz, 496 U.S. at 45 1.
209. Community Alcohol Information Program, DWI Statistics: Alcohol Impaired Driving
Statistics, at http://www.nh-dwi.concaip-206.htm (last visited Oct. 19,2002) [hereinafter DWI Statistics).
Over the past ten years alcohol related accidents claimed one-quarter of a million people. Id. Five
hundred people die each week (or seventy-one people each day) from intoxicated drivers. Id.
210. Id. In 1994, New Hampshire had the "lowest percentages of alcohol related fatalities" in the
nation with 42 of the 119 deaths being related to alcohol-35.3%. Id. Drunken driving is the leading cause
of death for individuals between the ages of 16 and 24. Id. In total, two million alcohol related accidents
occur in our nation every year. Id.
211. See Veteran and Military Combat Casualty Digest: Numbers of Americans Killed/Wounded,
by Action, at http://members.aol.comiusregistry/allwars.lhtm (last visited July 30, 2002). There were
casualties of 25,324 in the Revolutionary War (1775-83), 13,283 in the Mexican War (1846-48), 58,219
in the Vietnam War (1957-75), 363 in the Persian Gulf Operation Desert Shield/Storm (1990-91). Id.
212. DWI Statistics, supra note 209.
213. See id.
214. Id. "National Geographic recently stated that alcohol abuse costs American society $136
billion and 65,000 lives annually.' Id.
 TEXAS TECH LAW REVIEW [Vol.34:129

some states is the rate of arrests of alcohol-impaired drivers.2" 5 Some

estimates indicate that out of every "2,000 alcohol impaired drivers on the
road, only one is arrested."" 6 Subsequently, a drunken driver has a very high
chance of getting from his original location to his destination without being
caught by the police, while at the same time making the risk six times greater
for a non-intoxicated driver of being in an accident." 7
The low detection rate of alcohol-impaired drivers is one of the leading
reasons a state would argue for the constitutionality of using such devices. In
studies, the PAS has shown that the device increases the chances of detecting
drivers with a Blood Alcohol Content (BAC) of .10 or greater by fifty
percent."" These devices have allowed officers to arrest more individuals
whose BAC was high above the legal limit and greatly decrease the number
of low or zero BAC individuals who are detained for questioning or further
testing." 9 Advocates of the PAS would argue that the compelling state
interest in the prevention of drunk driving and the very minimal intrusions
caused by the use of the PAS should justify its use.22 However, just because
the intrusiveness may be small or slight, it should not solely justify the
procedure.22' The Fourth Amendment is based on the protection of individual
privacy interests that should not be circumvented by new technological
advances which may only cause a minimum intrusion.222

215. See id.

216. Id.
217. Id. "Anaccident by an alcohol impaired driver is the most frequently committed violent crime
in the United States today. Id.
218. National Hardcore Drunk Driver Project: Enforcement, at http://www.dwidata.orglenforcel
passive sensors.cfm (last visited Oct. 19, 2002) [hereinafter National Hardcore Drunk Driver Project].
In 1994. the Oceanside police department, who instituted the use of the PAS, reported that alcohol
detection rates have increased by 50-60% because of these devices. Sniffing Out Drunk Drivers, supra
note 167. In the 1.550 times the Oceanside police used the PAS, 623 of the uses indicated the individual
had consumed alcohol. Id.
219. Id. Some negative comments that officers noted in surveys were that the PAS had to be held
at the perfect distance from an individual to get an accurate read-out, and that use of the PAS was just
another item of equipment for an olicer to use at close distances to the individual, which can be
dangerous, without his full attention on the individual. Id.
220. Kim Han, The Technological Sniffing Out of the Constitutional Rights: Assessing the
Constitutionality of the Passive Alcohol Sensor II1, 9 J.L. & POL'Y 835, 863-64 (200 1).
221. See Coolidge v. New Hampshire, 403 U.S. 443, 453 (1971) (citing Boyd v. United States, 116
U.S. 616, 635 (1886)).
It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate
and unconstitutional practices get their first footing in that way, namely, by silent approaches
and slight deviations from legal modes of procedure. This can only be obviated by adhering
to the rule that constitutional provisions for the security of person and property should be
liberally construed. A close and literal construction deprives them of half their efficacy, and
leads to gradual depreciation of the right, as if it consisted more in sound than in substance.
It isthe duty of courts to be watchful for the constitutional rights of the citizen, and against any
stealthy encroachments thereon.
Id. at 453-54 (citing Boyd v. United States, 116 U.S. 616, 635 (1886)).
222. See id. at 453-54; see, e.g., Florida v. Riley, 488 U.S. 445, 451-52 (1989) (allowing the use
2002] CONSTITUTIONALITY OF PASSIVE ALCOHOL SENSORS 151

In light of the recent Kyllo opinion, the Fourth Amendment search and
seizure cases seem to be at a crossroad. 23 The Supreme Court appears to have
temporarily set up a roadblock to prevent further erosion of Fourth
Amendment protections. 2 4 In determining the constitutionality of the PAS,
the Court will likely balance the individual's diminished expectation of
privacy in an automobile, a state's interest in the prevention and apprehension
of drunk drivers, and the minimal intrusiveness of the device.22
An evaluation of the PAS under the Fourth Amendment makes it clear
that the PAS is a violation of the spirit of this Amendment. 26 At no time
could the framers have ever imagined that technology would have advanced
so far as to allow these types of searches to be held constitutionally valid. 7
On the contrary, the framers intended to protect individuals from arbitrary
intrusions by government officials, especially when the majority of the public
had no knowledge of the intrusion and the search was conducted without the
individual ever knowing of its occurrence. 22

C. Analysis of the PAS Under Stale Constitutions

Many state courts rely on their own constitutional analysis and ignore
federal constitutional analysis for a number of reasons. 229 The first and most

of a helicopter over an individual's home); Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986)
(allowing use of specialized camera); United States v. Knotts, 460 U.S. 276, 284-85 (1983) (allowing
police officers to use a electronic tracking beeper).
223. See Kyllo v. United States, 533 U.S. 27 (2001).
224. See id. at 33-34. The Court acknowledged that technology will affect the degree of privacy
a person is afforded, but refused to allow police technology not in general public use to dissolve the
minimum expectation of privacy. Id.
225. Han, supra note 220, at 866.
226. Id.
227. See id.; Luna, supra note 173, at 825-26. According to Professor Luna:
Although privacy may have been a promising theory of the Forth Amendment at one time, it
has now lost much ofits luster and utility. The Court has interpreted privacy to be a question
of fact rather than a constitutional value. As such, privacy becomes a mere interest [that] is
weighed against and can be defeated by other interests, even rather pedantic policy
considerations. This rendition of privacy under the Fourth Amendment contradicts the very
purpose of a constitutional liberty-to provide individuals with "political trumps" against
majorities and the government institutions they control.
Id. (citation omitted).
228. Han, supra note 220, at 867.
"A major point in [James Madison's] argument for the adoption ofenforceable individual rights
was that, unless restricted, the government might reasonably consider general warrants and
other abusive practices to be necessary for the enforcement of the laws. Accordingly Madison
introduced a proposal to restrict searches, which was subsequently adopted with only a few
minor [changes] as the Fourth Amendment."
Id. at n.208 (first alteration in original) (quoting JOHN H. F. SHATTUICKS, RIGHTS OF PRIVACY 5 (1977)).
229. Cynthia R. Bartell, Giving Sobriety Checkpoints the Cold Shoulder: A Proposed Balancing
Test for Suspicionless Seizures Under the Minnesota Constitution, 20 WM. MITCHELL L. REv. 515, 529
(1994) (analyzing whether sobriety checkpoints are constitutional under the Minnesota State Constitution).
 TEXAS TECH LA W REVIEW [Vol.34:129

convincing reason for a state to analyze the PAS under its own constitution is
that "state constitutions are historically autonomous, even when dormant."230
Second, state constitutions will guarantee rights and privacy protections using
unique and different language than their federal counterpart.23 " ' The third
reason for independent state constitutional analysis is that it may be necessary
to "fill gaps in federal analysis under analogous federal provisions."232
' Fourth,
the states may choose analysis under their own constitutions due to wavering
federal standards, or rather because the states simply do not agree with the
Supreme Court's decisions on analogous issues.233 Fifth, various state courts
may find that strong state interests may justify differing rulings than
demanded under federal courts.234 The final reason a state court may analyze
the PAS under its own constitutional analysis is due to differing state statutes
and case law that require separate considerations." 5 This independent state
constitutional analysis may afford an individual more protection than under
federal constitutional analysis for all of the reasons stated above.236
The thermal imaging cases demonstrate the differing results states can
reach in determining the constitutionality of various searches.237 The states
that have found the thermal imaging devices violative of their respective state
constitutions could possibly afford individuals more privacy protection than
other states that have failed to give protection to individuals being searched
by thermal imagers." 8 For example, in Commonwealth v. Gindlesperger,a
Pennsylvania Superior Court found that use of a thermal imager used on
defendant's home violated the Fourth Amendment and the Pennsylvania
Constitution.239 In applying the Katz test, the court found that the defendants
manifested a subjective expectation of privacy in the object of the search and
that society recognizes a defendant's expectation of privacy in the object as

230. Id.
231. Id.
232. Id.
233. Id.
234. Id. at 529-30.
235. Id. at 530.
236. Id. at 529-30.
237. See United States v. Cusumano, 67 F.3d 1497 (10th Cit. 1995), vacated, 83 F.3d 1247 (10th
Cit. 1996); United States v. Ford, 34 F.3d 992 (1Ith Cir. 1994); United States v. Pinson, 24 F.3d 1056 (8th
Cir. 1994); United States v. Ishmael, 843 F. Supp. 205 (E.D. Tex. 1994), rev'd, 48 F.3d 850 (5th Cir.
1995); United States v. Kyllo. 809 F. Supp. 787 (D. Or. 1992), affd in part, vacated and remanded in part,
37 F.3d 526, 530-31 (9th Cit. 1994); United States v. Penny-Feeney, 773 F. Supp. 220 (D. Haw. 1991);
State v. Young, 867 P.2d 593 (Wash. 1994) (en bane).
238. See, e.g., State v. Siegal, 934 P.2d 176, 192 (Mont. 1997) (finding thermal imagers used
without a warrant violated defendant's right to privacy guaranteed under Montana's Constitution),
overruled on other grounds by State v. Kuneff, 970 P.2d 556 (Mont. 1998); Commonwealth v.
Gindlesperger, 706 A.2d 1216, 1224 (Pa. Super. Ct. 1997) (holding the use of thermal imagers violated
the Pennsylvania Constitution because the state constitution provides individuals with greater privacy
protections than the Fourth Amendment); Young, 867 P.2d at 599 (holding that a warrantless thermal scan
is a violation of both the state and federal constitutions).
239. Gindlesperger, 706 A.2d at 1224.
2002] CONSTITUTIONALITY OFPASSIVE ALCOHOL SENSORS 153

reasonable.2" Similarly, in State v. Young, the Supreme Court of Washington

held that a thermal scan of the defendant's home was an unreasonable
search.24' The court was unwilling to compromise individual privacy
protections for advancing police surveillance technology. 42 Similar to the
thermal imager, the PAS also enables its user to compile information
concerning an individual that otherwise would be undetectable.243 Just as
some state courts found monitoring heat emissions escaping from an
individual's house an unreasonable search, so may some state courts find that
monitoring alcohol-tainted breath escaping from an individual's mouth
constitutes an unreasonable search.2
It may be important for an individual to rely on his or her respective state
constitution in looking for protection from devices like the PAS. 245 As of yet,
no state has ruled on the constitutionality of these devices.246 In Fernandezv.
State, a Texas court found that it was not error to allow the prosecution to
introduce evidence of the PAS test.247 The court allowed the evidence merely
noting that the "State did not attempt to use the PAS to establish a quantitative
alcohol concentration factor, rather the PAS evidence was only introduced
qualitatively as another indicator of intoxication relied on by the officer, much
like the other field sobriety tests. " 24 However, none of these decisions have
examined the constitutionality of these devices directly, especially in light of
the recent Kyllo opinion. One major obstacle in attempting to rely on state
decisions is that states constantly are split on the constitutionality of various
questions.2 49 This inconsistency in results will cause individuals in certain
states to have more rights than other individuals in neighboring states.230

240. Id. at 1223.

241. Young, 867 P.2d at 594. The court reflected its concern in advancing technology by stating
"[wle believe our legal right to privacy should reflect thoughtful and purposeful choices rather than simply
mirror the current state of the commercial technology industry." Id. at 598.
242. See id. at 598-99.
243. See Han, supra note 220, at 870.
244. See id.
245. Id. at 871.
246. See Law Enforcement, supra note I.
247. Fernandez v. State, 915 S.W.2d 572, 576 (Tex. App.-San Antonio 1996, no writ).
248. Id. at 576; see also Tex. Dep't of Pub. Safety v. Bond. 955 S.W.2d 441, 447 (Tex. App.-Fort
Worth 1997, no pet.) (noting that the breath test was only used as one of several field sobriety tests in order
to establish probable cause); Tex. Dep't of Pub. Safety v. Watson, 945 S.W.2d 262, 267 (Tex.
App.-Houston [ist Dist.] 1997, no pet.) (stating the breath test may be used as an indicator of
intoxication); George v. State, No. 01-96-01269-CR, 1999 WL 82611, at $1 (Tex. App.-Houston list
Dist.] Feb. 4. 1999, pet. ref'd) (stating that PAS test evidence can be admitted as qualitative evidence of
intoxication, but not as quantitative evidence).
249. Han, supra note 220, at 871.
250. Id.
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D. The Need for Change

There is a strong possibility, given the high state interest in preventing

traffic fatalities caused by drunk driving and the lower recognized expectation
of privacy in automobiles, that courts will find use of the PAS
constitutional.25 ' Unlike the thermal imaging device addressed in Kyllo, the
PAS is not intruding on the sanctity of the home, which historically has
received greater privacy protection."2 Further, after putting a halt to the use
of thermal imaging technology in Kyllo, the Supreme Court may be hesitant
in disallowing the use of a device that protects public safety when such a
ruling may make it more difficult for the Supreme Court to ever allow future
technology to be constitutionally used." 3
The Court should re-examine the basis of the Fourth Amendment."' The
Fourth Amendment is founded on a right to be secure, which gives an
individual the right to exclude the government."' The Supreme Court's
Fourth Amendment analysis of privacy is flawed, and there is no support in
the text of the Fourth Amendment to support the Supreme Court's current
analysis. 5 6 This leaves an easily manipulated concept of privacy that other
courts could either expand or contract at will. 5 7
The Supreme Court has too often and "too readily made privacy
expectations contingent on technology, empiricism, and government
regulation." 5 " "Given that the number and varieties of official intrusions into
individuals' lives has increased exponentially as a result of the increasing
complexities of society, the Court's willingness to reduce privacy
expectations will too often lead to the conclusion that no protected individual
interest has been invaded by the government. "" 9 This line of reasoning has
led to enough bureaucratic red tape to seemingly transform the Fourth
Amendment to a flexible document to be carved in a manner seen fit by the

251. Seeid.at871-73.
252. See Kyllo v. United States, 533 U.S. 27, 29 (2001).
253. See id.
254. See Thomas K. Clancy, What Does the Fourth Amendment Protect: Property, Privacy, or
Security?, 33 WAKE FOREST L. REv. 307 (1998).
255. Id. William Pitt also stressed the right to exclude in a speech before Parliament in 1766. Id.
at 351.
The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be
frail; its roof may shake; the wind may blow through it; the storm may enter; but the King of
England may not enter; all his force dares not cross the threshold of the ruined tenement.
Id. at 351-52 (quoting NaSON B.LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT
TO THE UNITED STATES CONSTITUTION 49-50 (1937) (citation omitted)).
256. Id. at 339.
257. Id.; see supra Part Ill.
258. Clancy, supra note 254, at 340.
259. Id. at 341. Using an empirical approach as well as allowing technology to reduce a person's
expectation of privacy leads to a reduction in the rights protected by the Fourth Amendment. Id.
2002] CONSTITUTIONALITY OF PASSIVE ALCOHOL SENSORS 155

current Court majority. 260 "The Fourth Amendment is an instrument-a

gatekeeper that keeps out the government."26' This gatekeeper does not
require one to state a reason to exclude the government; it simply excludes the
government from an individual's protected rights. 21 Further, the reason one
chooses to exercise one's privacy rights does not add to or subtract from the
amount of privacy protection afforded to individuals by the Fourth
Amendment.263
Professor Clancy argues that the only true way to protect the meaning of
the Fourth Amendment is with a normative view.2" This normative view
must promote a favorable interpretation of individual rights; otherwise, a
Court majority "may use any definition of the individual's protected interest,
2
be it grounded in property, privacy, or security. "M At its basis, the Fourth
Amendment was enacted to protect people from governmental intrusions that
would undermine their right to privacy.' Therefore, the Fourth Amendment
must be interpreted to enhance these individual privacy interests and not to
restrict them.267
This normative liberal approach is especially necessary when technology
is knocking on everyone's door, always attempting to look inside and see what
individuals are trying to hide.2 "At what point does one voluntarily expose
something: when the government can discover it by using binoculars; by
looking over a fence; by looking from an airplane?" The only way to
protect the Fourth Amendment is to employ this normative approach and not
allow advancing technology to erode our guaranteed constitutional rights.270
If the Supreme Court applies this normative approach to the PAS, it is
very likely that the PAS will fail to pass constitutional muster. 27 The PAS,
under a normative view, intrudes upon a very basic right that individuals
expect to be protected by the Constitution. 21 An individual would assume
that one would be safe traveling in one's automobile and free from the
intruding eye of technology lurking around the corner. Individual liberties
must be protected under the plain meaning of the Fourth Amendment; the
PAS clearly invades individual liberties by uncovering undetectable

260. See id. at 339; supra Parts II, III.

261. Clancy, supra note 254, at 354.
262. See id.
263. Id.
264. Id. at 361-62.
265. Id.
266. Id. at 364; see supra Part VI.B-C.
267. Clancy, supra note 254, at 364; see supra Part VI.B-C.
268. Clancy, supra note 254, at 364.
269. Id. at 365.
270. See id. at 366.
271. See id. at 365-66.
272. See id.
 TEXAS TECH LAW REVIEW [Vol.34:129

information that could not be learned without the use of this device, and
therefore should be unconstitutional. 3

VII. CONCLUSION

The Fourth Amendment has been fraught with uncertainty in its

language, interpretation, and application.2 74 The Supreme Court has been
more and more willing over the past fifty years to ignore the plain meaning
behind the Fourth Amendment and simply bargain away individual liberties. 7
While the Supreme Court has historically recognized a reduced expectation
of privacy in automobiles, that factor alone should not cause an individual to
lose his right to be free from unreasonable, government intrusions all
together. 276 An individual has a recognized zohe of privacy that should be
protected and not taken away by a state's discovery of a device that makes
their job a little easier.277
The Supreme Court recently took a stand in Kyllo against the
government's bargaining away of individual liberties by refusing to allow
police officers to use thermal imaging technology on homes.27 8 The Supreme
Court should continue this approach by stopping police from using an alcohol
detection device that is not in general public use.2 While states have a strong
interest in the prevention of drunk driving, the states should not be free to
employ any method or any device to accomplish this goal. 280 The state is free
to use its police powers to deter drunk driving, but not at the expense of
individual constitutional rights.28'
A line needs to be drawn in order to protect the meaning behind the
Fourth Amendment. 2 More and more devices are being employed and
developed that can potentially be used to shrink an individual's expected zone
of privacy. 23 The Court should find use of the Passive Alcohol Sensor and
similar devices unconstitutional and draw a firm line in the sand to protect
against the gradual erosion of Fourth Amendment protections of individual
privacy rights. Otherwise, the government will continue to employ
technological advancements at the expense of individual privacy interests.
The only question remaining is for the Court to decide how long it will choose

273. See id. at 363-64; supra Part VI.A.

274. See supra Parts ii, III.
275. See supra Part I1.
276. See supra Part i1.B.
277. See supra Part VI.
278. See supra Part IV.
279. See supra Part IV.
280. See supra Part VI.
281. See supra Part VI.
282. See supra Part VI.
283. See supra Part Vi.
2002] CONSTITUTIONALITY OF PASSIVE ALCOHOL SENSORS 157

to allow advancing technology to define our Fourth Amendment right to

privacy.

by Justin Ferguson