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The U.S. Supreme Court just ruled in a 5-4 decision in Kyllo v. United Statesthat a search warrant must be obtained to conduct thermal imaging surveillance of the home of a person suspected of using high-intensity lamps to grow marijuana. The decision provides an interesting privacy debate and surprisingly pits Justice Scalia on the side of individual privacy rights and Justice Stevens on the side of law enforcement. The Kyllodecision ultimately may have far-reaching implications, especially given the rapid development of new, high-tech devices that could arguably be used to monitor a person’s conduct within his or her home. Heightened concern over privacy rights, from consumer privacy to the monitoring of individuals’ on-line activities in cyberspace, further nuance the way the case may be interpreted in the future. Still, the overriding lesson appears to be to commit your sins at home, because that is where you have the greatest protection from the law. THERMAL IMAGING DEVICE Federal agents suspected that Kyllo was growing marijuana in his home. They used a thermal imaging device to scan Kyllo’s home to determine if the heat emanating from the home was consistent with high-intensity lamps often used for indoor marijuana growth. The scan revealed that the garage and side wall were hot when compared to the rest of the house, and were quite a bit warmer than neighboring units in this particular triplex. Based on the thermal imaging and other information, a federal magistrate issued a search warrant with respect to Kyllo’s home. Thereafter, the agents searched his home and found marijuana plants growing there. ARE HOME ‘HOT SPOTS’ PRIVATE? After being indicted on a federal drug charge, Kyllo unsuccessfully moved to suppress the evidence seized from his home. He thereafter entered a conditional guilty plea. Kyllo appealed to the 9th U.S. Circuit Court of Appeals, which affirmed the decision by the lower court not to suppress evidence seized from Kyllo’s home. The 9th Circuit upheld the constitutionality of the thermal imaging on the ground that Kyllo had not demonstrated a subjective expectation of privacy because he had not made any effort to conceal the heat emanating from his home. The 9th Circuit further ruled that even if Kyllo had undertaken such efforts, his argument still fails because the thermal imager did not reveal any intimate details about Kyllo, and instead only disclosed hot spots on the exterior of the home. JUSTICE SCALIA’S MAJORITY OPINION Justice Scalia, who is often on the side of law enforcement, delivered the majority opinion for the Supreme Court. At the outset of the opinion, he notes that the Fourth Amendment to the Constitution provides for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. … ” He then quotes prior Supreme Court case law providing that at the 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.” Reading through the decision, it appears up until this point that the majority will keep its focus on the narrow facts — and the particular surveillance device — at issue in Kyllo. But here Justice Scalia shifts gears, and the opinion becomes quite a bit more expansive. After noting that it “would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology,” the majority opinion blows the door wide open, saying: “[The] question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.” Justice Scalia’s opinion holds that to withdraw privacy protections in circumstances like those faced by Kyllo “would be to permit police technology to erode away the privacy guaranteed by the Fourth Amendment.” His opinion then announces the following rule and lays down when a search warrant must be obtained: “We think that by obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area,’ constitutes a search — at least where (as here) the technology in question is not in general public use.” Stated another way by the opinion: “Where, as here, 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.” Certainly, at a minimum, Justice Scalia’s opinion seeks to ensure protection of privacy in the home. And perhaps the lesson here is that to the extent anyone wants to do wrong, the home is the best place to do wrong, as it is safest from unfettered governmental surveillance. However, the opinion appears to do even more, as in forward-looking fashion it provides: “[w]hile the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.” Indeed, the opinion further states that “we must take the long view, from the original meaning of the Fourth Amendment forward.” It will be interesting to see how this “rule” will be applied in cases going forward, and what other devices will be deemed “sense-enhancing technology” subject to scrutiny. Given the astounding pace at which technological innovations are being developed, we cannot even imagine how our senses may be capable of being “enhanced” by future technology. JUSTICE STEVENS’ DISSENTING OPINION Justice Stevens delivered the dissenting opinion for the Supreme Court. The grouping of the dissenting justices reveals some strange bedfellows — usually liberal Justice Stevens is joined by conservative Chief Justice Rehnquist, along with Justices O’Connor and Kennedy. The dissenting opinion does not find significant privacy interests to protect and finds fault in crafting rules when not necessary. In terms of insignificant privacy interests, Justice Stevens writes that “this case involves nothing more than off-the-wall surveillance by law enforcement officers to gather information exposed to the general public from the outside of [Kyllo's] home.” According to Justice Stevens, the infrared camera simply measured heat emanating from exterior surfaces, and did not provide any details regarding the interior of the home. Thus, there was not an “unauthorized physical penetration into the premises.” Justice Stevens’ dissent notes that ordinary use of the senses by people in proximity could reveal the differential exterior heat, as one might be able to see that rainwater evaporates or snow melts at different rates across the surfaces of the house. His dissent states that “[h]eat waves, like aromas that are generated in a kitchen, or in a laboratory or opium den, enter the public domain if and when they leave a building.” The dissent determines that law enforcement officials “should not have to avert their senses or their equipment from detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the community.” Indeed, in Stevens’ view, which certainly is food for thought, monitoring such activities “is an entirely reasonable public service.” The dissenting opinion concludes that the warrantless search was reasonable, particularly given that a homeowner like Kyllo “who both intends to engage in uncommon activities that produce extraordinary amounts of heat, and wishes to conceal that production from outsiders, [should] make sure that the surrounding area is well insulated.” Thus, building on the lesson theme from the majority opinion, if you want to do wrong, do it in your home, and make sure to insulate or otherwise protect your home as best as possible from outside observation. The parting words of Justice Stevens’ dissent express regret that the majority did not “heed the tried and true counsel of judicial restraint.” The dissent expresses fear regarding the “all-encompassing rule for the future” crafted by the majority. And the dissent expresses a preference for legislators “grappl[ing] with these emerging issues rather than to shackle them with prematurely devised constitutional restraints.” LOOKING AHEAD There is little doubt that privacy in the home is exalted by the majority Kyllodecision. As privacy barriers are breaking down in the technological age, this probably is a good thing. Still, the majority, by attempting to define the type of technology that may violate the Fourth Amendment when used by the government, may have unwittingly crafted a rule far broader than it intended. It remains to be seen whether the rule will remain limited to searches of homes, or whether it will find broader reach, especially as the makeup of the Supreme Court is likely to change soon. Furthermore, as signaled by Justice Stevens’ dissent, we may see legislative activity in this area. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected]

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