Over at Volokh Conspiracy, Orin Kerr questions the vitality of Kyllo v. United States, the decision holding that the use of infrared thermal imaging devices to detect a marijuana grow house constitutes a search and thus requires a warrant.
An initial, and somewhat obvious, problem with the Kyllo decision, that feeds into Orin’s question, is the way the rule was framed. By making the test “general public use,” the court built in obsolescence. Any device, the proper use of which is dependent on the public’s use, knowledge, acceptance, is subject to change over time. The test was not grounded in reasonable expectation of privacy per Katz, which (as Orin notes) Justice Scalia ridiculed, but rather the prevalence of ordinary folks walking around with infrared thermometers, whether used to check out the neighbors or just the chicken in the oven.
I can’t disagree with Orin that the test hasn’t aged well, and isn’t likely do any better if we just let it mature some more. Today’s scientific oddity can easily be tomorrow’s child’s toy, the way things are heading with technology. Worse still, the Supremes are (forgive me) kinda old, and may not be on the cutting edge of technological use in certain demographic brackets. And their clerks aren’t the coolest kids around, and may not share their peers’ zeal for the latest, shiniest toys.
But that doesn’t suggest an indictment of the Kyllo outcome, or my grudging agreement with Orin’s “technology neutral” approach. It’s just one poorly framed test. It’s not the first, and it certainly won’t be the last. Even as I tap out these words, I can hear Orin saying, “Oh yeah, wise guy? So what test would you suggest?” I’m glad you asked.
The use of any device, whether mechanical, electrical or electronic, to obtain information that could not be obtained without it is a search. A search requires a warrant. Absent plain view, the question should not be how to pigeonhole new technologies into the plethora of exceptions developed over the past century, whether tethered to its originating rationale or just a short slide down the slippery slope, but why we’ve stood idly by while the exceptions have swallowed the rule.
That the device may be in common use, or readily available to the shopping public on Amazon, should bear no relevance to the definition of a search. How long will it be before they are selling the mental equivalent of the old “x-ray specs” that graced the back page of comic books when I was a kid?
The law will never keep pace with developing technologies, nor should it have to. We’ve always had the right rule at hand, but haven’t paid enough attention to it in our zeal to find ways around it. Technology has given us a second chance to take back the 4th Amendment, to return to a time when we honored the principles rather than strained to find ways to avoid them. Let’s not blow it this time.
This post asks whether that result is still good law. I realize that probably sounds a bit nutty at first, as Kyllo is only a few years old. But Kyllo deliberately adopted a test designed to let the result change with social practice . This post asks whether changing social practices already allow the police to use thermal imaging devices without a warrant.As Orin notes, variations on these “high-tech” devices are now readily available at Amazon for under $100. Under the announced rule, contingent on a device “not in general public use,” it would seem that the holding in Kyllo is passé. While Orin doesn’t say so, I suspect that this is meant to show why his “technology neutral” approach to the 4th Amendment makes sense, as otherwise rules would change, or become outdated, based on extraneous acceptability of technology by the public.
The Supreme Court announced the following rule: “when . . . 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.” Because infrared temperature sensing was not in “general public use,” the thermal imaging was a “search” that required a warrant.
An initial, and somewhat obvious, problem with the Kyllo decision, that feeds into Orin’s question, is the way the rule was framed. By making the test “general public use,” the court built in obsolescence. Any device, the proper use of which is dependent on the public’s use, knowledge, acceptance, is subject to change over time. The test was not grounded in reasonable expectation of privacy per Katz, which (as Orin notes) Justice Scalia ridiculed, but rather the prevalence of ordinary folks walking around with infrared thermometers, whether used to check out the neighbors or just the chicken in the oven.
I can’t disagree with Orin that the test hasn’t aged well, and isn’t likely do any better if we just let it mature some more. Today’s scientific oddity can easily be tomorrow’s child’s toy, the way things are heading with technology. Worse still, the Supremes are (forgive me) kinda old, and may not be on the cutting edge of technological use in certain demographic brackets. And their clerks aren’t the coolest kids around, and may not share their peers’ zeal for the latest, shiniest toys.
But that doesn’t suggest an indictment of the Kyllo outcome, or my grudging agreement with Orin’s “technology neutral” approach. It’s just one poorly framed test. It’s not the first, and it certainly won’t be the last. Even as I tap out these words, I can hear Orin saying, “Oh yeah, wise guy? So what test would you suggest?” I’m glad you asked.
The use of any device, whether mechanical, electrical or electronic, to obtain information that could not be obtained without it is a search. A search requires a warrant. Absent plain view, the question should not be how to pigeonhole new technologies into the plethora of exceptions developed over the past century, whether tethered to its originating rationale or just a short slide down the slippery slope, but why we’ve stood idly by while the exceptions have swallowed the rule.
That the device may be in common use, or readily available to the shopping public on Amazon, should bear no relevance to the definition of a search. How long will it be before they are selling the mental equivalent of the old “x-ray specs” that graced the back page of comic books when I was a kid?
The law will never keep pace with developing technologies, nor should it have to. We’ve always had the right rule at hand, but haven’t paid enough attention to it in our zeal to find ways around it. Technology has given us a second chance to take back the 4th Amendment, to return to a time when we honored the principles rather than strained to find ways to avoid them. Let’s not blow it this time.
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“The use of any device, whether mechanical, electrical or electronic, to obtain information that could not be obtained without it is a search.” Is it? Is standing on a box to look over a garden fence a search?
You betcha. If it can’t be seen in plain view, then it’s a search. That is the basic premise.
More importantly, why wouldn’t it be? Why shouldn’t a person reasonably believe that whatever he has hidden behind his garden fence is private?
I sort of like the bright line rule approach myself. Rules like that last longer and are easier to apply.
But then you run into this problem, from the law enforcement perspective: they are routinely denied the use of surveillance tools that the bad guys already have, which puts them at an increasing disadvantage, which means that they can no longer effectively enforce the law. That’s the argument, anyway.
In answer to that, it might be said that we should long ago have foregone enforcement of the kind of laws that require ever greater tactical use of surveillance. And maybe laws that are not enforceable without such techniques should be repealed, rather than suffering the loss of liberty from necessarily heavy handed, often random or mistaken, and overly intrusive government activity.
But what do I know? I don’t see much of any solution on the horizon, and more importantly, to the extent the balance has been struck it has heavily favored law enforcement and government. There is very little left of the 4th amendment, as a practical matter. Almost nothing, really.
The only thing law enforcement is denied is the ability to search without a warrant. With a warrant, they can use whatever tools a neutral magistrate will allow.
Because it’s not. Not if anyone doing something as simple and legal as standing on a box can see over the fence.
What if instead of standing on a box that allows him to look over the fence, he’s standing on a floor of his own house next door? What if he allows a cop to use his house to look over a fence? What if the cop pulls his cop car up on the street next to the fence and stands on the roof of his own car? What if he climbs a tree?
Not that I want to give cops more of an excuse to pry into our lives, but your test seems kind of extreme.
Ah, this should have gone with the previous comment. I clicked the wrong place when it re-asked me for the security code….
“Neutral” magistrate? Unicorns?
But seriously, let’s leave aside the practical reality that the warrant is never denied. In theory it’s an impediment, and the bad guys don’t have any impediments even in theory. So law enforcement is put at a disadvantage relative to bad guys.
That’s the argument, anyway. I’m not saying I agree with it. I have a sort of sympathy for it, maybe.
You know these cameras are everywhere. On street lamp poles, in buses, in every public building. Can you put the genie back in the bottle for everyone? Absolutely not. You can, very theoretically, shackle the government somewhat. Not sure it’s worth it.
Maybe we should spend what little capital we have fighting a fight where the odds are better. Then again I’m not sure what fights they are, it always seems so decidedly uphill.
Sorry to be so ambivalent.
I’m not following this concept of surveilance tools that the bad guys already have. Bad guys don’t surveil. They conceal. Police surveil. Maybe I’m not being imaginative enough, but how would a marijuna grow house use a heat detector to determine when the police are coming after them?
The language you’re using reminds me of the language that was used back in I don’t know when- the 80’s or 90’s about bad guys having the police outgunned, i.e., machine guns on the street vs. pistols. But I don’t see how that applies in the search context.
Okay, wise guy? So what….
oh, wait, you knew I was going there. More seriously, here are my hypos for you:
1. Police officer uses sunglasses to eliminate glare, sees evidence through open window from public street thanks to the reduced glare.
2. Police officer with bad uncorrected vision gets good eyeglasses, sees evidence through open window from public street thanks to the vision correction.
3. Police officer has a friend with unusually good vision, brings him over, and the friend sees evidence through open window from public street thanks to his unusually good vision.
4. It’s nighttime, and to illuminate the house, the police officer brings wooden logs to the sidewalk ad lights the logs on fire. The fire illuminates the house, revealing evidence that the officer can see from the sidewalk.
5. Instead of lighting a fire, the police officer shines a flash light on the property at night, sees evidence from the city street that he can only see because if the flashlight.
I gather all of these require a warrant under your test, as they are all Fourth Amendment searches? If not, which ones are searches and which ones aren’t?
Nice to have you drop by, Prof. Kingsfield. Examples 1 and 2 are easy, since neither sunglasses nor eyeglasses are worn for the specific purpose of executing a search, but for the benefit of the wearer without regard to searching. 3 is a nonstarter, good eyes or bad, plain view is plain view. No one is entitled to a cop with bad vision. 4-5 require warrants, and (ironically), since he’s got time to start a fire, let the cop get a warrant and ask for authorization to use a flashlight. Mission accomplished.
Is the box in the first post used “for the specific purpose of executing a search?”
What it the police officer gets laser surgery to have his vision corrected down to 20/10 and the police department specifically assigns him to surveillance tasks? I think some pro athletes have had this done and there’s been some discussion of whether its cheating.
As simple and legal as standing on a box looking over someone’s fence? Did you really write that, Windy? I’m appalled. Have you learned nothing?
If you did this, you would be a peeping Tom. You would get arrested. It’s simple, sure, but so is smashing a window and going into a house. Is simple the criteria? There are plenty of simple things that are quite illegal. But lawful? No so much.
Are you asserting then that just looking over a garden fence is a search?
If it can’t be looked over without standing on a box, you betcha (though using the word “asserting” is a bit too aggressive in your question). If it can, then it would be in plain view, but then the cop would not need to stand on a box to see. Was this unclear?
I think people assume a sense and expectation of privacy within their homes and other properties, and anything designed to investigate and/or pierce that privacy is – you nailed it – a search.
This should just be intuitive.
Intuitive? One would think I’ve rocked the very foundation of society by calling for a return to the basic rule.
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Thank you for clarifying. I now understand your viewpoint.
Keep following your line of reasoning and next thing you know, you’ll be suggesting that cops shouldn’t be allowed to vault a fence with a no-trespassing sign on it and walk behind a small forest to discover a hidden marijuana field. See how crazy your reasoning is?
Scott, you may have bit off too much here, but I thought I might add to the debate. The Kyllo decision never made any sense and the Court missed the point. Heat escapes from houses into the atmosphere and the thermal imaging device only visually displayed what escaped to the exterior of the house. It was then used as a small portion of the probable cause for an eventual warrant. The court misunderstood what the device did and created more confusion. Of course, by your standard it wouldn’t make any difference anyway.
I look forward to your addition to the debatre. Come on back whenever you get a useful thought about Kyllo.
Waves in the form of oscillations of pressure, otherwise known as sound, escape from houses into the atmosphere and the high-powered microphone just audibly reveals what escapes to the exterior of the house. That’s cool, right?
Afraid not.
Well damn, I guess the Kyllo decision did make some sense after all. Who knew?
Forgive the very late comment, but I’ve been thinking quite hard about what you said, and I’ve decided I agree with you.
One of the things that helped persuade me was Bruce Schneier’s essay “Curb Electronic Surveillance Abuses”, Schneier concludes:
“…This is the proper question: “Should we allow law enforcement to use new technology without any judicial oversight, or should we demand that they be overseen and accountable?” And the Fourth Amendment already provides for this in its requirement of a warrant.
…
Much of the rhetoric on the “security” side of the debate cloaks one of its real aims: increasing law enforcement powers by decreasing its oversight and accountability. It’s a very dangerous road to take, and one that will make us all less secure. The more surveillance technologies that require a warrant before use, the safer we all are.”
Schneier’s 2004 Newsday Op-Ed is a very interesting read, and thanks for the link. I now remember reading it at the time, but had long since forgotten the post. The irony of his point is that, similar to the technologies that allow for constant and pervasive surveillance without oversight, technology allows for quickly obtaining a warrant when surveillance is constitutionally permissible. The age-old excuses for excepting the warrant requirement have been obviated by technology, and we need to clean the slate and rethink the vitality of meaningful judicial oversight and go back to the future, where the 4th Amendment is the rule rather than the exception.