Via  Orin Kerr and John Wesley Hall, a California Court of Appeals held that night vision goggles are a constitutionally acceptable means of seeing what you couldn’t otherwise see. in People v. Lieng.  In so doing, they distinguished nogs (that’s the cool thing to call night vision goggles) from thermal imaging, prohibited without a warrant in Kyllo v. United States.

The court explained its primary justification for concluding that use of nogs doesn’t constitute a search:

Kyllo is inapplicable to this case. First, night goggles are commonly used by the military, police and border patrol, and they are available to the general public via Internet sales. (U.S. v. Vela (W.D.Tex. 2005) 486 F.Supp.2d 587, 590.) More economical night vision goggles are available at sporting goods stores. (Ibid.) Therefore, unlike thermal imaging devices, night vision goggles are available for general public use.

That nogs are used by the military, police and border patrol, fails to impress.  Lots of technology is used by government agents.  Much of it is used to do nasty stuff that would, in the absence of a warrant, violate the Constitution.  So what?

But the kicker is that it’s”available to the general public via internet sales.”  Now it’s getting interesting.  When courts rely on the inventory at Amazon, or perhaps more obscure websites, for the scope of the 4th Amendment, there might be a problem.

Putting aside the question of who informed the judges that nogs are readily available online, since one can be remarkably confident that they weren’t shopping on the internet for nogs to give their close friends and relatives this Christmas, somebody had to whisper in their ear.  And indeed they are, and not only economical ones, but some pretty expensive ones as well.  Then again, there are thermal imaging cameras  readily available as well.  Even used ones, which presumably became available after Kyllo. 

So whoever did the research on behalf of the court neglected to search for other things the internet has to offer.  The problem is that, short of tactical nuclear device, one can likely find any sort of intrusive technology one desires on the internet.  If that’s going to be the rule of thumb, we’re sunk.

Rather than research the caselaw to determine whether police use of technology constitutes an unlawful search under the Fourth Amendment, we should begin our inquiry on Amazon.  Is that the point?

The court goes on to offer a secondary rationale.

Second, state and federal courts addressing the use of night vision goggles since Kyllo have discussed the significant technological differences between the thermal imaging device used in Kyllo, and night vision goggles. (See, e.g., People v. Deutsch (1996) 44 Cal.App.4th 1224, 1228, fn. 1; U.S. v. Dellas, supra, 355 F.Supp.2d at p. 1107; U.S. v. Vela, supra, 486 F.Supp.2d at p. 590.) Night vision goggles do not penetrate walls, detect something that would otherwise be invisible, or provide information that would otherwise require physical intrusion. (U.S. v. Vela, supra, at p. 590.) The goggles merely amplify ambient light to see something that is already exposed to public view. (Ibid.) This type of technology is no more “intrusive” than binoculars or flashlights, and courts have routinely approved the use of flashlights and binoculars by law enforcement officials.

Ah, back to the technology neutral approach of determining constitutional violations raised by advances in technology through analogy.  While the accuracy of the court’s adoption of the flashlight/binocular analogy is subject to question, as their understanding of nogs, the mere amplification of ambient light, is questionable (as can be readily determined by…you guessed it, a quick search of the internet), at least the analogy has some merit.

Both flashlight and binoculars allow one to see what one could not see otherwise, but would otherwise be in plain view.  Of course, approval of these technological advances was based on analogy to a police officer wearing eyeglasses to improve his vision.  The error of the analogy is that the four-eyed cop doesn’t wear glasses for the purpose of a search, but in the normal course of life.  Cops do not walk around shining flashlights, or peering through binocs, all the time.  They pull these out to accomplish something they couldn’t do on their own.

Yet, few would argue that the addition of a flashlight changes an otherwise plain view observation to a search requiring a warrant.  It just seems too basic, too reasonable to demand otherwise.

But are nogs just an extension of the flashlight, a better mousetrap, or are they of a different nature?  What about the ability to not merely amplify ambient light, but use infrared technology to see “heat” as well?  What if they see heat within structures?  Suddenly, nogs seem awfully similar to thermal imaging.

The problem going forward is that decisions like this are unduly simplistic and will be used, likely for a generation at least, as justification for holding that night vision goggles fall without the protections of the Fourth Amendment.  By wrapping up technology is a simple package, and employing an ill-fitting analogy, we end up with a rule that will be applied pro forma, case after case, while technology mixes and matches on a daily basis, blurring the lines and rendering the precedent worthless.

On the other hand, we could just leave it up to Amazon to decide what technology is permissible and falls outside the scope of the Fourth Amendment.  Just like the judges do.