On June 11, 2001, the Supreme Court took another step in defining the Constitutional protections offered by the Fourth Amendment’s prohibition against “unreasonable searches” in an age of rapidly improving and intrusive surveillance technology. The case involved one Danny Lee Kyllo. It seems that Kyllo was an avid indoor horticulturalist. Unfortunately, Kyllo devoted his botanical skills to raising marijuana plants rather than roses.
The indoor cultivation of marijuana requires high intensity lamps. On the basis of tips that Kyllo was involved in marijuana transactions and had larger than average electric bills, but without bothering to secure a warrant from a judge, the authorities arranged for Kyllo’s house to be scanned by an Agema Thermovision 210 thermal imager. The imager revealed the increased heat emanating from the house indirectly indicating the presence of the marijuana lamps. Using this additional information, the police persuaded a judge to issue a search warrant. The results of that search provided evidence used to convict Kyllo.
The issue before the US Supreme Court was whether the use of the imager constituted a search. If it was a search of a home without a warrant, then the evidence from the imager could not be presented to a judge to secure a warrant or used in a trial against Kyllo. If the use of the imager is considered the gathering of information that is “in plain view,” then its use is “presumptively reasonable.”
Writing for the majority in a close 5-4 decision, Justice Antonin Scalia found that the use of the thermal imager to scan a private home is indeed a search and requires a search warrant. Scalia’s reasoning relies on Silverman v. United States (1961) that argued that the essential core of the Fourth Amendment “stands the right of a man to retreat into his own home [and] there be free from unreasonable governmental intrusion.” Kyllo was at home and Scalia argues that in the home there is reasonable assumption of privacy that was violated by the scanner.
Justice Paul Stevens, dissenting, tried to draw a distinction between “through the wall surveillance” and “off the wall surveillance” but the only thing off the wall was Stevens’s reasoning. Stevens argued that the thermal imager was detecting emanations from the house not really looking into the home. But his distinction was one without a difference. If a device amplifies the senses and allows the authorities to determine what is happening in a house in a way that would normally require a more direct conventional search, the use of the device really is a search. Moreover, Scalia responded that even if this particular thermal imager provided crude images, “the rule we adopt must take account of more sophisticated systems that are already in use or development.”
One reason that a person has a reasonable expectation of privacy, according to Scalia, is because thermal imagers are not “in general use.” This is the one important flaw in Scalia’s argument. Technology will inevitably improve. If consumer video cameras in the future have infrared imaging capabilities, then any passerby could detect hot spots in a house. This being the case, the reasonability of the expectation of privacy erodes and the zone of personal privacy shrinks.
What is also interesting about this case is the way the court divided. In the past, Justice Stevens has been more likely to side against law enforcement authorities. Yet in this case he found that the use of a thermal imager did not constitute a search under the rules of the Fourth Amendment. On the other hand, Scalia and Thomas, who have been less inclined to shackle law enforcement authorities, are clearly fearful of a world open to high-tech government intrusion.
This entry was posted on Monday, June 11th, 2001 at 5:47 pm and is filed under Law, Social Commentary. You can follow any responses to this entry through the RSS 2.0 feed.
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Fourth Amendment Searches with Thermal Imagers
On June 11, 2001, the Supreme Court took another step in defining the Constitutional protections offered by the Fourth Amendment’s prohibition against “unreasonable searches” in an age of rapidly improving and intrusive surveillance technology. The case involved one Danny Lee Kyllo. It seems that Kyllo was an avid indoor horticulturalist. Unfortunately, Kyllo devoted his botanical skills to raising marijuana plants rather than roses.
The indoor cultivation of marijuana requires high intensity lamps. On the basis of tips that Kyllo was involved in marijuana transactions and had larger than average electric bills, but without bothering to secure a warrant from a judge, the authorities arranged for Kyllo’s house to be scanned by an Agema Thermovision 210 thermal imager. The imager revealed the increased heat emanating from the house indirectly indicating the presence of the marijuana lamps. Using this additional information, the police persuaded a judge to issue a search warrant. The results of that search provided evidence used to convict Kyllo.
The issue before the US Supreme Court was whether the use of the imager constituted a search. If it was a search of a home without a warrant, then the evidence from the imager could not be presented to a judge to secure a warrant or used in a trial against Kyllo. If the use of the imager is considered the gathering of information that is “in plain view,” then its use is “presumptively reasonable.”
Writing for the majority in a close 5-4 decision, Justice Antonin Scalia found that the use of the thermal imager to scan a private home is indeed a search and requires a search warrant. Scalia’s reasoning relies on Silverman v. United States (1961) that argued that the essential core of the Fourth Amendment “stands the right of a man to retreat into his own home [and] there be free from unreasonable governmental intrusion.” Kyllo was at home and Scalia argues that in the home there is reasonable assumption of privacy that was violated by the scanner.
Justice Paul Stevens, dissenting, tried to draw a distinction between “through the wall surveillance” and “off the wall surveillance” but the only thing off the wall was Stevens’s reasoning. Stevens argued that the thermal imager was detecting emanations from the house not really looking into the home. But his distinction was one without a difference. If a device amplifies the senses and allows the authorities to determine what is happening in a house in a way that would normally require a more direct conventional search, the use of the device really is a search. Moreover, Scalia responded that even if this particular thermal imager provided crude images, “the rule we adopt must take account of more sophisticated systems that are already in use or development.”
One reason that a person has a reasonable expectation of privacy, according to Scalia, is because thermal imagers are not “in general use.” This is the one important flaw in Scalia’s argument. Technology will inevitably improve. If consumer video cameras in the future have infrared imaging capabilities, then any passerby could detect hot spots in a house. This being the case, the reasonability of the expectation of privacy erodes and the zone of personal privacy shrinks.
What is also interesting about this case is the way the court divided. In the past, Justice Stevens has been more likely to side against law enforcement authorities. Yet in this case he found that the use of a thermal imager did not constitute a search under the rules of the Fourth Amendment. On the other hand, Scalia and Thomas, who have been less inclined to shackle law enforcement authorities, are clearly fearful of a world open to high-tech government intrusion.
This entry was posted on Monday, June 11th, 2001 at 5:47 pm and is filed under Law, Social Commentary. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.