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IP: KYLLO v. UNITED STATES
From: David Farber <dave () farber net>
Date: Mon, 11 Jun 2001 20:49:19 -0400
Date: Mon, 11 Jun 2001 19:44:26 -0400 To: farber () cis upenn edu From: Lauren Gelman <gelman () eff org> http://supct.law.cornell.edu/supct/html/99-8508.ZS.html KYLLO v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ---------------------------------------------------------------------------- ---- No. 998508. Argued February 20, 2001Decided June 11, 2001 ---------------------------------------------------------------------------- ---- Suspicious that marijuana was being grown in petitioner Kyllos 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 Kyllos 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 Kyllos 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 Kyllos life, only amorphous hot spots on his homes exterior. Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment search, and is presumptively unreasonable without a warrant. Pp. 313. (a) 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, ruling that visual observation is no search at all, see Dow Chemical Co. v. United States, 476 U.S. 227, 234235, 239. 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: A search does not occureven when its object is a house explicitly protected by the Fourth Amendmentunless 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. Pp. 35. (b) While it may be difficult to refine the Katz test in some instances, in the case of the search of a homes interiorthe prototypical and hence most commonly litigated area of protected privacythere 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 homes 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, constitutes a searchat 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. 67. (c) Based on this criterion, the information obtained by the thermal imager in this case was the product of a search. The Court rejects the Governments argument that the thermal imaging must be upheld because it detected only heat radiating from the homes 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 technologyincluding imaging technology that could discern all human activity in the home. Also rejected is the Governments 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; Dow Chemical, supra, at 238, 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. Pp. 712. (d) Since the imaging in this case was an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant was supported by probable causeand if not, whether there is any other basis for supporting admission of that evidence. Pp. 1213. 190 F.3d 1041, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Rehnquist, C. J., and OConnor and Kennedy, JJ., joined. ________________________________________________ Lauren Gelman Phone: 202/487-0420 Director of Public Policy email: gelman () eff org Electronic Frontier Foundation
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