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In 2001, the Supreme Court decided the landmark case of Kyllo v. U.S., 533 U.S. 27 (2001). In Kyllo, the court confronted the issue of whether new technological devices, such as thermal imaging scanners, may be used to detect criminal activity in a home without a warrant. Writing for the court, Justice Antonin Scalia emphasized the special sanctity of the home. “At the very core” of the Fourth Amendment “stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Id. at 31, quoting Silverman v. U.S., 365 U.S. 505, 511 (1961). Therefore, 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.” Id. at 40. Courts balance privacy interests, law enforcement Kyllo was supposed to put the brakes on law enforcement’s warrantless use of new technology to search suspect’s homes. Yet it has not led to the abandonment of technology in police investigations. New technologies continue to be used by law enforcement. Courts have found plenty of ways to balance homeowners’ interests in privacy against law enforcement’s need to apprehend lawbreakers. First, courts have not rigidly applied the warrant requirement to high-technology searches. Since Kyllo, courts have generally upheld warrants authorizing searches conducted with the assistance of thermal imaging devices. In the few reported cases on this topic, courts have generally found that officers relied in good faith on warrants, even if the probable cause supporting those warrants was questionable. See, e.g., U.S. v. Jarrell, 68 F. App. 622, 625-627 (6th Cir.), cert. denied, 540 U.S. 1005 (2003) (unpublished) ( Leon good-faith exception applied); U.S. v. Huggins, 299 F.3d 1039, 1046-47 (9th Cir.), cert. denied, 537 U.S. 1079 (2002) (search upheld because of good-faith reliance on warrant). Thus, even though Kyllo requires police officers to obtain a warrant to use new technology on homes, a good-faith effort is sufficient. Second, courts have made it easier to get surveillance warrants. Recently, in U.S. v. Kattaria, 503 F.3d 703 (8th Cir. 2007), the 8th U.S. Circuit Court of Appeals rejected the argument that surveillance warrants must be based upon probable cause. Rather, it held that reasonable suspicion may be sufficient. In Kattaria, Minnesota police officers obtained a warrant authorizing aerial use of a thermal imaging device to measure heat emitting from a home. The application for the warrant turned out to be problematic because it had stale information about activities at the home and much of the government’s information came from a cooperating defendant whose reliability had not been established. The application also had false information regarding the suspect’s alleged prior conviction. Luckily for the officers, the warrant application also had information from utility records showing that the house was consuming large amounts of electricity. In upholding the aerial imaging search, the panel held that while the use of new technology may require a warrant, “[t]he Court in Kyllo did not discuss what showing is constitutionally required to obtain a warrant to conduct a thermal imaging search.” Id. at 706. Thus, if a “careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, [a court need not hesitate] to adopt such a standard.” In Kattaria, the court held that the use of the thermal imaging device was akin to an investigative stop; it was a brief and minimally intrusive investigative search whose purpose was to determine if criminal activity is afoot. The thermal scans served only to confirm the probable presence of an indoor marijuana growing operation. Once those scans were completed, the imaging information was used to apply for warrants that authorized more intrusive physical searches of the properties. Thus, like a Terry stop, thermal imaging only provided general information that would be used to obtain a warrant for a more intensive search. Because it was just a step in the investigative process, the panel believed that it should only require a showing of reasonable suspicion. It noted, however, that even if probable cause were required, the facts of Kattaria would likely satisfy that requirement. It remains to be seen whether other courts will adopt the lower “reasonable suspicion” standard for warrants in thermal imaging and other high-tech searches. One thing is certain, however. The more time these devices are in use, the less need there will be for a high showing of suspicion. In Kyllo itself, the Supreme Court limited its holding to devices that were not in general use yet. Once they are in such use, any claim of expectation of privacy disappears. Third, in other contexts, courts have become quite comfortable with the use of new technology in assisting police investigations. For example, in State v. Jacobs, 2007 Minn. App. Unpub. Lexis 360 (April 17 2007), the Minnesota Court of Appeals held that police did not violate a defendant’s right by using specialized computer programs to determine the defendant’s Internet Protocol address. The police were able to use this information to ascertain the defendant’s identity, which led to a search warrant for the defendant’s home. Police ended up seizing more than 300 images of child pornography hidden on the defendant’s computer. In upholding the police action, the Jacobs court held that use of the program was not in itself a search because it did not rely on special technology unavailable to others. Rather, the software program used was readily available to the public. “Once technology is embraced by the public, there is no longer a search under the Fourth Amendment.” Id. at *6. Finally, for years, courts have authorized federal investigative officers to use new devices to capture a defendant’s statement in his or her home. So long as the electronic surveillance is conducted by an individual who is lawfully within the premises, a defendant cannot complain that a technological device is being used instead of the undercover individual’s own senses. See U.S. v. White, 401 U.S. 745 (1971) (plurality). Yet there has been some pushback by the state courts since Kyllo. In State v. Mullens, 650 S.E.2d 169 (W.Va. 2007), the West Virginia Supreme Court of Appeals struck down the practice of using informants to electronically monitor suspects in their homes. The Mullens court began by recognizing that federal law permits such electronic monitoring. Specifically, federal electronic surveillance law provides that the “consent of one party to a conversation is sufficient to permit a person acting under color of law to [lawfully] intercept a wire, oral, or electronic communication.” U.S. v. Pratt, 913 F.2d 982, 986 (1st Cir. 1990); 18 U.S.C. 2511(2)(c). See also White, supra at 749 (“No warrant to search and seize is required . . . when the Government sends to defendant’s home a secret agent who . . . unbeknown to the defendant carries electronic equipment to record the defendant’s words”). Despite federal law, the Mullens court was unwilling to accept such practices for West Virginia. After engaging in an extensive analysis of electronic surveillance laws in other states, the court held that West Virginia’s one-party consent exception violated the state’s constitution. In West Virginia, “a man’s home is his castle.” Mullens, 650 S.E.2d at 189. In overruling its own state’s precedent, the Mullens court held that “it is a violation of [the] West Virginia Constitution . . . for the police to invade the privacy and sanctity of a person’s home by employing an informant to surreptitiously use an electronic surveillance device to record matters occurring in that person’s home without first obtaining a duly authorized court order.” A fiery dissent over protections in the home In vigorous dissent, Justice Brent D. Benjamin challenged the majority’s analysis. He first argued that it is inaccurate to assume that just because a suspect chooses to sell illicit drugs out of his abode, he is entitled to special protections for his “home.” As the justice colorfully put it, “the majority simply ‘clicks its heels’ invokes the mantra, ‘there’s no place like home’, and proceeds to turn half a century of constitutional jurisprudence from this Court, the United States Supreme Court and virtually every other federal and state court in this country on its head.” Id. at 84. Moreover, Benjamin noted that the majority was wrong to assume that just because technology is being used, it is subject to a higher level of scrutiny. While “sophisticated gadgetry [like] parabolic microphones, satellite cameras, high tech lenses from planes circling overhead, laser beams bounced off windows, and a wide variety of stand-alone bugging devices” are available for use, a listening device was much less sinister. It only recorded information that the defendant was willing to tell another. The defendant gave up his privacy by inviting someone to his home and sharing that information. Unquestionably, police will continue to use technology to assist their investigations. Nothing about Kyllo will stop the use of Global Positioning Systems to track automobiles (see U.S. v. Garcia, 474 F.3d 994 (7th Cir. 2007)), nor sophisticated chemical testing by the government (see U.S. v. Spain, 2007 U.S. Dist. Lexis 47348 (N.D. Ill. 2007)). Yet it is worth pausing to note, as Judge Alex Kozinski did in U.S. v. Kincade, 379 F.3d 813, 871 (9th Cir. 2004) (Kozinski, J., dissenting), that “New technologies test the judicial conscience. On the one hand, they hold out the promise of more effective law enforcement, and the hope that we will be delivered from the scourge of crime. On the other hand, they often achieve these ends by intruding, in ways never before imaginable, into the realms protected by the Fourth Amendment.” Laurie L. Levenson is a professor of law, William M. Rains Fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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