Supreme Court Rules on Thermal Imaging Case

In a 5-4 opinion written by Justice Scalia, the U.S. Supreme Court held in Kyllo v. United States that the warrantless use of a thermal imaging device to detect heat emanating from a person’s residence constituted an illegal search under the Fourth Amendment.

In a 5-4 opinion written by Justice Scalia, the U.S. Supreme Court held in Kyllo v. United States that the warrantless use of a thermal imaging device to detect heat emanating from a person’s residence constituted an illegal search under the Fourth Amendment.

In 1992, Danny Lee Kyllo was arrested after Oregon police searched his home and found more than 100 marijuana plants growing inside. The search warrant was obtained after the police scanned the roofs and walls of Kyllo’s home with a thermal imager to detect the infrared rays radiating from the halide lamps typically used to grow marijuana. Kyllo pleaded guilty to the charges, conditioned on his ability to challenge the constitutionality of the search. Although the District Court and Ninth Circuit rejected his Fourth Amendment claim, the Supreme Court reversed, stating that “[w]here, as here, the government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

In an unusual, ideologically diverse faction, Justices Thomas, Souter, Ginsburg and Breyer joined Scalia’s opinion. Upholding classic Fourth Amendment jurisprudence, the majority found that the Fourth Amendment protects that over which an individual has a subjective expectation of privacy that society would deem reasonable. Rejecting the dissent’s proposition that the scan was not a search because the device did not penetrate the walls of the home but instead merely read “off the wall,” Scalia asserted that any and all details about one’s home – including so mundane a detail as the infrared rays emitted from within – are intimate not because they are important but because they are private, and thus are protected by the Fourth Amendment.

Chief Justice Rehnquist and Justices O’Connor and Kennedy joined Justice Stevens’s dissent, which characterized the majority opinion as both too narrow and too broad. Making the traditional distinction between information kept within the home and that which escapes the home and is exposed to “plain view,” over which there is no further expectation of privacy, the dissent found Kyllo’s privacy interest to be “trivial,” especially given that he made no attempt to prevent the heat from escaping his home. Further, Stevens found the majority’s emphasis on protection of the home to be a misconstruction of Fourth Amendment jurisprudence, in which the protection is generally granted more broadly to “people, not places.”

On June 14, House Majority Leader Dick Armey (R-TX) sent a letter to Attorney General John Ashcroft drawing a parallel between the Supreme Court’s majority opinion in Kyllo v. United States and the FBI’s controversial continued use of the Carnivore Internet surveillance system. In the letter, Rep. Armey asks whether, similar to thermal imaging, Carnivore “undermines the minimum expectation that individuals have that their personal electronic communications will not be examined by law enforcement devices unless a specific court warrant has been issued.” According to news reports, Attorney General Ashcroft is reviewing the FBI’s use of Carnivore and will soon respond to Rep. Armey directly.

Kyllo v. United States, Certiorari to the United States Court of Appeals for the Ninth Circuit, No. 99-8508:

http://www.supremecourtus.gov/opinions/00pdf/99-8508.pdf

June 14 Letter from House Majority Leader Armey to Attorney General Ashcroft regarding Carnivore (DCS-1000):

http://www.freedom.gov/library/technology/ashcroftletter.asp

For more information about thermal imaging devices, visit the website of FLIR Systems, Inc.:

http://www.flir.com/

Author: EPIC

News Service: Electronic Privacy Information Center

URL: http://www.epic.org