Kyllo v. United States, 121 S.Ct. 2038 (2001).

 

Facts:  Suspicious that marijuana was being grown in petitioner Kyllo's home in a triplex, agents used a thermal imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. The scan showed that Kyllo's garage roof and a side wall were relatively hot compared to the rest of his home and substantially warmer than the neighboring units. Based in part on the thermal imaging, a Federal Magistrate Judge issued a warrant to search Kyllo's home, where the agents found marijuana growing. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Ninth Circuit ultimately affirmed, upholding the thermal imaging on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home. Even if he had, ruled the court, there was no objectively reasonable expectation of privacy because the thermal imager did not expose any intimate details of Kyllo's life, only amorphous hot spots on his home's exterior.

 

Issue:  Whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a "search" within the meaning of the Fourth Amendment.

 

Holding: The United States Supreme Court, Justice Scalia, held that: (1) use of sense-enhancing technology to gather any information regarding interior of home that could not otherwise have been obtained without physical intrusion into constitutionally protected area constitutes a "search," and (2) use of thermal imaging to measure heat emanating from home was search.

 

Rationale:

 

(1)   The question whether a warrantless search of a home is reasonable and hence constitutional must be answered no in most instances, but the antecedent question whether a Fourth Amendment "search" has occurred is not so simple. This Court has approved warrantless visual surveillance of a home, see California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210, ruling that visual observation is no "search" at all, see Dow Chemical Co. v. United States, 476 U.S. 227, 234-235, 239, 106 S.Ct. 1819, 90 L.Ed.2d 226. In assessing when a search is not a search, the Court has adapted a principle first enunciated in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576: A "search" does not occur—even when its object is a house explicitly protected by the Fourth Amendment—unless the individual manifested a subjective expectation of privacy in the searched object, and society is willing to recognize that expectation as reasonable, see, e.g., California v. Ciraolo, supra, at 211, 106 S.Ct. 1809. Pp. 2041-2043.  Obtaining by sense-enhancing technology any information regarding the interior of a home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, constitutes a "search"—at least where the technology in question is not in general public use. U.S.C.A. Const. amend. 4.

 

(2)   While it may be difficult to refine the Katz test in some instances, in the case of the search of a home's interior—the prototypical and hence most commonly litigated area of protected privacy—there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. Thus, obtaining by sense- enhancing technology any information regarding the home's interior that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman v. United States, 365 U.S. 505, 512, 81 S.Ct. 679, 5 L.Ed.2d 734, constitutes a search—at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. Pp. 2043-2044.

 

(3)   Based on this criterion, the information obtained by the thermal imager in this case was the product of a search. The Court rejects the Government's argument that the thermal imaging must be upheld because it detected only heat radiating from the home's external surface. Such a mechanical interpretation of the Fourth Amendment was rejected in Katz, where the eavesdropping device in question picked up only sound waves that reached the exterior of the phone booth to which it was attached. Reversing that approach would leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home. Also rejected is the Government's contention that the thermal imaging was constitutional because it did not detect "intimate details." Such an approach would be wrong in principle because, in the sanctity of the home, all details are intimate details. See e.g., United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530; Dow Chemical, supra, at 238, 106 S.Ct. 1819, distinguished. It would also be impractical in application, failing to provide a workable accommodation between law enforcement needs and Fourth Amendment interests. See Oliver v. United States, 466 U.S. 170, 181, 104 S.Ct. 1735, 80 L.Ed.2d 214. Pp. 2044-2046.

 

Questions:

 

1.      How is the thermal imaging any different than a dog smelling the exterior of luggage or an automobile, which the courts have consistently held is not a search?

 

2.      The courts have consistently held that police officers seeing something in plain view from a point they are legally allowed to be in is not a search within the meaning of the Fourth Amendment (e.g., police officers walking up to your door and knocking on it and observing illegal narcotics in your house through the open door).  How is the radial imaging different?

 

3.      How has the advance of technology affected the privacy of individuals? 

 

4.      Is the information obtained from the home (i.e. heat radiating from the surface of the home) important; thus, requiring the Fourth Amendment to protect it?

 

5.      How do we balance the needs of law enforcement with the public’s privacy interests?

 

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