Supreme Court Nixes Warrantless Heat-Sensor Searches, Oregon Grow-Op Case Updates Fourth Amendment to Deal With New Technologies 6/15/01

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Police must first obtain a search warrant before using a heat-sensing device to look inside a person's home, a narrowly divided Supreme Court ruled Monday. In an unusual Supreme Court alliance, conservative justices Antonin Scalia and Clarence Thomas joined with liberals David Souter, Ruth Bader Ginsburg and Steven Breyer to form a 5-4 majority.

While the Rehnquist Supreme Court has historically taken an accepting approach to drug war erosion of Fourth Amendment protections from illegal search and seizure, the ruling in Kyllo v. US marks the third time this year that the court has rejected drug searches and imposed limits on a drug war that previously seemed limitless. In an Indianapolis case last November (, the Court held that suspicionless drug checkpoints on public highways violated the Constitution. And in a recent South Carolina case (, the Court ruled out state drug testing of pregnant mothers without their consent.

"This is an important victory for the Fourth Amendment because it says again the home is a protected area," University of Iowa law professor James Tomkovicz, who filed a friend-of-the-court brief for the American Civil Liberties Union, told the Los Angeles Times. "I think [the justices] were worried about what comes next, the technology that would allow the government to stay out but detect what is going on inside the home."

"One less thing to worry about," one Washington area indoor marijuana grower chortled to DRCNet. "I definitely feel more secure in my home now."

Monday's ruling came in the case of Florence, Oregon, resident Danny Kyllo, who was arrested in 1992 for growing marijuana after federal agents used a thermal imaging device to pick up infrared radiation from within his home. The agents told a federal magistrate the heat signature matched the pattern of a marijuana grow-op. The judge then approved a search warrant based largely on the thermal imaging evidence, and agents subsequently raided the house.

Kyllo was indeed growing marijuana -- 100 plants were found during the search -- and eventually accepted a conditional guilty plea, which allowed him to appeal the legality of the warrantless thermal imaging surveillance. On appeal, he argued that the seized plants could not be used as evidence against him because police did not have a search warrant before surveilling his home with the thermal imaging device. Kyllo lost at the federal appellate level when the 9th US Federal Court of Appeals' ruled that the use of heat sensors did not constitute a search of Kyllo's home and therefore did not require a search warrant.

The Supreme Court disagreed. For the majority, the question to be decided was two-fold. First, did thermal imaging surveillance constitute a search in the constitutional sense; and second, if so, was such a warrantless search reasonable and therefore constitutional?

In the majority opinion, Justice Scalia wrote: "Where, as here, the government uses a device that is not in general public use to explore intimate 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."

Quoting earlier Fourth Amendment search and seizure rulings, Scalia wrote that "at the very core" of the amendment "stands the right of a man to retreat into his own home and there be free from government intrusion. It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been unaffected by the advance of technology," Scalia wrote.

"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 common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw the protection of this minimum expectation would allow police technology to erode the privacy guaranteed by the Fourth Amendment."

The minority opinion, authored by Justice Stevens and joined by Chief Justice Rehnquist and Justices O'Connor and Kennedy, bought the Justice Department argument that thermal imaging did not constitute a search and was therefore permissible without obtaining a search warrant. "No intimate details of the home were observed, and there was no intrusion upon the privacy of individuals," wrote Stevens.

But, Scalia retorted in the majority opinion, heat-sensing devices "might disclose, for example, at what hour of each night the lady of the house takes her daily sauna and bath -- a detail that many would consider 'intimate.'"

The Supreme Court has in recent years upheld a number of police surveillance techniques on the grounds that they did not constitute searches under the Constitution. Tactics okayed by the Court include the use of drug-sniffing dogs, the use of binoculars to look in a yard, and the use of low flying airplanes and helicopters to spy on private property. In all of those instances, the court held that officers were free to use their senses to peer into a private area.

Sophisticated surveillance devices that can see through walls are different, the court held. Allowing warrantless searches with such devices "would leave the homeowner at the mercy of advancing technology -- including imaging technology that could discern all human activity in the home," Scalia wrote.

While with this ruling, the American people have seen fundamental constitutional protections brought into the 21st Century, it's not all over yet for Danny Lee Kyllo. Although the Supreme Court reversed the appeal's court ruling on the admissibility of thermal imaging evidence, it did not throw out Kyllo's conviction. Instead, it remanded his case back to the federal circuit court to decide whether, absent the thermal imaging evidence, any basis to order a search warrant existed.

The ruling and the dissent are both available at online.

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Issue #190, 6/15/01 Dedication: Peter McWilliams, One-Year Later | Editorial: Death Penalties | Supreme Court Nixes Warrantless Heat-Sensor Searches, Oregon Grow-Op Case Updates Fourth Amendment to Deal With New Technologies | Interview: Arnold Trebach on Drug Treatment Abuse, Legalization and the Reform Movement | US-Mexican Border Governors Agree to Look at Drugs as Health, Not Crime, Problem -- Legalization Talk Making US Embassy Nervous | Follow That Story: Tennessee Cop Walks in Botched Drug Raid Killing | New Zealand Parliamentary Cannabis Decrim Inquiry Underway: Medical Association Says Okay, Green MP Leads the Way | The White Dog Goes to Amsterdam -- and You Can, Too | BC Marijuana Party Fissure: Taylor Resigns, Cites Emery's Leadership Style, Plans for Compassion Club Offensive | Connecticut Passes Sentencing Reforms, Taking Effect July 1st | The HEA Campaign and You | Clarence Aaron Clemency Petition | Action Alerts: Drug Czar Nomination, HEA Drug Provision, Mandatory Minimums, Medical Marijuana | Call for Submissions: Fortune News to Examine Crack Cocaine Issues | Job Listings in Harm Reduction Practice and Research: Indiana, New York, California, Missouri, Washington State | The Reformer's Calendar

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