Prying Eyes

One of the problems with the nation’s war on drugs is that it has sometimes degenerated into a war on the Fourth Amendment’s guarantees from unreasonable searches. Since drug use and sometimes drug sales largely involve private activities conducted behind closed doors between consenting parties, there is an incentive for law enforcement activities to push the envelope of permissible searches. Given the legitimate and reasonable public enthusiasm for discouraging drug use, there is also a strong incentive for courts to allow the fabric of the Fourth Amendment to fray a little at the edges. In a case scheduled for oral argument on February 20, 2001, the US Supreme Court will have an opportunity to keep a snag from unraveling.

The formerly married couple Danny and Luanne Kyllo resided in one unit of a triplex in Florence, Oregon. Luanne had been arrested in late 1991 for the “delivery and possession of a controlled substance.” An informant further suggested to law enforcement authorities that Luanne was a source of marijuana. There was, therefore, plenty of reason for the police to be suspicious of the couple.

As part of the investigation, the utility records of the couple were subpoenaed from the power company. These records suggested disproportionately high energy usage by the Kyllo’s unit of the triplex. Excessive energy usage could be indicative of high-energy lamps used in the indoor cultivation of marijuana. While it is possible to conjure up alternative explanations for this energy usage, the clues gathered would certainly be ample enough for competent law enforcement officials to pursue the case.

At 3:20 am in the morning of January 16, 1992, a federal drug task force enlisted the help of the Oregon National Guard and their Agema Thermovision 210. This thermal imaging device produces an image that maps the emission of thermal radiation. In this case, the image indicated an unusually high level of thermal energy emitting from one wall of the Kyllo house. One the basis of this information, a federal magistrate granted a search warrant, a search ensued, and suspicions were confirmed. The indoor marijuana cultivation setup was discovered and the Kyllos were arrested and convicted.

The question before the US Supreme Court is the legality of the warrantless use of the thermal imaging device. If the police had gone to a magistrate with the high energy bills in hand and the information from the informants, they probably could have obtained a warrant to use the imaging device. However, the authorities neglected to do this.

Danny Kyllo argues that the use of the thermal imaging device constitutes an unreasonable search and the evidence from the sensor, evidence that was used to obtained a subsequent warrant for a physical search, should be thrown out. If the use of the thermal imaging device does constitute an illegal search, Kyllo’s conviction would be overturned.

The test in this case, according to the 9th Circuit Court, is whether Kyllo had a reasonable expectation of privacy or whether the use of a thermal imaging device constitutes general police observation. Kyllo argues that since the cultivation was moved indoors, he had a reason to believe the cultivation was done in private.

The Circuit Court ruled that “thermal imaging technology in this case does not constitute a search under Fourth Amendment standards” because the imaging device “did not literally or figuratively penetrate the walls of the Kyllo residence to expose this activity.” Further it ruled that merely transferring marijuana cultivation indoors does not mean that Kyllo had a reasonable expectation of privacy. He had no such expectation in the Circuit Court’s view because “he took no affirmative action to conceal waste heat.”

This decision is troubling. Does it imply that as police surveillance technology increases, the normal expectation of privacy within the home decreases unless one becomes aware of these technologies and takes active measures to devise additional barriers to observation? A person could not read a document in my hand from the street, but a person with a telescope might be able to. Am I protected from a telescope search without a warrant? A person from the street cannot hear a conversation in my house. Sensitive sound amplification equipment might allow law enforcement officers to listen in on conversations assumed to be private. Is a citizen required to play background music to prevent such monitoring before that citizen can expect a conversation to be private? If I encrypt an e-mail message, does that action mean that I have a reasonable expectation of privacy for that message? What happens if decryption technology improves? Does a citizen have to continually improve encryption to maintain the expectation of privacy in a measure versus countermeasure spiral?

Judge Michael Hawkins of the 9th Circuit Court wrote, “Whatever its Start Wars capabilities, the thermal imaging device employed here intruded into nothingÂ… Rather it measured the heat emanating from and on the outside of the house.” Such a distinction lacks understanding. If the police used a high powered telescope to look through a window, I am sure we would all believe that our expectation of privacy had been broached even though the “imaging device employed here intruded into nothing.” We would not be consoled by the fact that the sensor only measured multi-spectral radiation emanating from the house.

During the arguments before the Circuit Court, attorneys pointed out that even more sophisticated thermal imaging devices would be able to detect sexual activity within a house. I suppose one could secure a reasonable expectation of privacy by carrying on such activities behind blankets of high thermal absorption, but how many people are concerned about such technological matters at such times?

The Circuit Court dismissed such concerns in this case because the imaging resolution was not sufficient to expose detailed activities behind closed doors. This could be a reasonable distinction, but no guidance is offered as to how detailed such passive observations must be before they constitute a search. Are imaging devices different from non-imaging ones? How are audio surveillance technologies to be treated?

The Fourth Amendment presupposes that in some cases people want to be left alone out of the constant observation of the state or the public. Who wants a society where we are constantly gazing over our shoulders to see who is watching us? Who wants to live in a society where private citizens have to resort to greater and greater precautions to avoid the prying of new technologies?

Let me respectfully suggest that if the Conservatives on the Supreme Court really wish to adhere to the doctrine of “original understanding” they should ask themselves how much intrusion into the activities on their private premises the Founders would have tolerated. Drug use creates enough victims by itself. We do not need to add to this list of victims the Fourth Amendment.


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