Pubdate: Tue, 19 Jun 2001
Source: Washington Times (DC)
Copyright: 2001 News World Communications, Inc.
Contact:  http://www.washtimes.com/
Details: http://www.mapinc.org/media/492
Author: Bruce Fein

DIMMER SWITCH FOR HIGH-TECH EYES

High-tech crime fighting through thermal imaging devices was checked by the 
United States Supreme Court last week in Kyllo vs. United States (June 11, 
2001). A 5-4 majority, speaking through Justice Antonin Scalia, held that 
the Fourth Amendment prohibited their freewheeling use to detect homegrown 
marijuana, whose signature is high-intensity lamps.

The constitutional issue was simply new wine in old bottles. Order and 
liberty are perpetual rivals.

Order without liberty is tyranny. Liberty without order is anarchy, a state 
of nature where life is poor, brutish, nasty, and short, as Thomas Hobbes 
warned.

The rivalry between order and liberty finds constitutional expression in 
the Fourth Amendment prohibition of "unreasonable" police searches and 
seizures of "persons, houses, papers, and effects."

That injunction which necessarily arrests the ability of the police to 
detect crime is more a mood than a command. Its application is inescapably 
subjective, pivoting on the prevailing incidence of crime, the seriousness 
of the crime under investigation, and our cultural devotion to citizen 
privacy free from government snooping. Without the latter, the joys and 
creativity of spontaneity wither, healthy non-conformity shrinks, and 
feistiness in opposing government overreaching recedes into docility. An 
ounce of community revolutionary fervor is indispensable to a pound of 
democracy, but 15 ounces would be dangerous.

In sum, drawing a constitutional balance between order and liberty is more 
the art of chiaroscuro than the science of prime colors. And the 
development of high-tech law enforcement tools neither heightens nor 
lessens the artistic challenge. The Kyllo precedent is emblematic.

An agent of the U.S. Interior Department suspected Danny Kyllo of growing 
marijuana in his home. Such indoor cultivation characteristically requires 
high-intensity lamps. The associated heat emitted, if detected, gives the 
game away.

The agent and a colleague thus employed a thermal imaging device to scan 
Mr. Kyllo's home from a parked vehicle on a public street. The imager 
converts invisible infrared radiation into images based on temperature 
differentials. Black is cool, white is hot, and shades of gray connote 
relative differences.

The scan showed that the roof over the garage and a side wall of Mr. 
Kyllo's home were hot compared to the remainder of the residence, and 
substantially warmer than adjacent homes. That information and related 
evidence triggered a magistrate's search warrant, which lead to the 
discovery of home marijuana cultivation and Mr. Kyllo's federal indictment 
for illegal manufacture.

During pretrial skirmishing, Mr. Kyllo moved to suppress the evidence found 
pursuant to the warrant. The Fourth Amendment generally prohibits the 
prosecution from relying on information derived from an unconstitutional 
search or seizure. According to Mr. Kyllo, the warrantless use of the 
thermal imaging device violated the reasonableness standard of the 
Amendment; and, the constitutional transgression voided the magistrate's 
search warrant.

The Supreme Court agreed, at least as to the first proposition.

Justice Antonin Scalia noted that as interpreted in Katz vs. United States 
(1967) and its progeny, the Fourth Amendment safeguards privacy 
expectations that society is willing to accept as reasonable. But that 
axiom smacks of tautological blather, i.e., saying no more than that 
individual privacy enjoys constitutional protection only to the extent 
society speaking through its police and legislatures is willing to concede.

The whole purpose of the Constitution with judicial review conducted by 
independent judges, however, is to restrain, not to surrender to, majority 
will.

The Katz test creates the illusion of Fourth Amendment certitude where 
ambiguity is an enlightened necessity and has been applied in practice to 
fashion a patchwork of case law.

Thus, aerial surveillance of private homes and surrounding areas does not 
constitute a search subject to the Amendment, whereas police monitoring of 
a beeper in a private home is.

Justice Scalia and Justice John Paul Stevens writing for the Kyllo 
dissenters exchanged thunderbolts of Aristotelian logic over whether the 
thermal imaging observations were the functional equivalence of police 
presence in the home, and whether a Fourth Amendment demarcation line 
should be drawn between "off-the-wall" as opposed to "through-the-wall" 
technologies. Justice Stevens, for instance, insisted that imaging was 
constitutionally innocuous because the infrared camera did no more than 
detect "off-the-wall" heat that had been emitted into the public domain.

But that begs the point. The imaging invaded Mr. Kyllo's privacy by 
generating information about the interior of his home and home activities 
that he wished to conceal and thus inhibited his behavior. That is why the 
Fourth Amendment was concerned. And its enclaves of private space are not 
impregnable, but can be overcome by a warrant resting on probable cause of 
illegal activity.

What was decisive for Justice Scalia was that the government employed an 
investigatory device that was not in general public use to unearth 
information about the details of Mr. Kyllo's home which would have been 
otherwise unknowable without physical intrusion. A tacit subtheme was the 
nature of the crime. If he had been building high-tech missile devices for 
North Korea or Iran, the decision would probably have been different.

The Fourth Amendment is intellectually messy, but to pretend it could be 
otherwise yet retain its vitality would be a flight into fantasyland.
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