Fourth Amendment, Kyllo v. United States

[A18]

Kyllo v. United States, 533 U.S. 27 (2001)

Suspicious that marijuana was being grown in petitioner Kyllo's home in a triplex, agents used a thermal imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. The scan showed that Kyllo's garage roof and a side wall were relatively hot compared to the rest of his home and substantially warmer than the neighboring units. Based in part on the thermal imaging, a Federal Magistrate Judge issued a warrant to search Kyllo's home, where the agents found marijuana growing. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Ninth Circuit ultimately affirmed, upholding the thermal imaging on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home. Even if he had, ruled the court, there was no objectively reasonable expectation of privacy because the thermal imager did not expose any intimate details of Kyllo's life, only amorphous hot spots on his home's exterior.

Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment "search," and is presumptively unreasonable without a warrant.

Scalia, J., delivered the opinion of the Court, in which Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Rehnquist, C.J., and O'Connor and Kennedy, JJ., joined.

[Emsworth]

Sound decision.

The Fourth Amendment, like all other provisions of the Bill of Rights, is entitled to be interpreted broadly. To restrict its language to physical searches would be entirely inappropriate. For the reasons given in Justice Scalia's opinion, this decision is an entirely reasonable one.

Justice Brandeis warned against an excessively limited interpretation of the Fourth Amendment in his dissent to Olmstead v. United States. He wrote, "The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. ... Can it be that the Constitution affords no protection against such invasions of individual security?"

[A18]

Agreed.

BTW, this is the weirdest split ever:

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[Peter]

I wouldn't say its all that weird actually. It reflects the judicial characters of the Justices rather well I feel.

Justices Scalia and Thomas are originalists - that they vote together on this matter is not surprising. Quite what drew their originalism to this conclusion I am not entirely sure, though Brandeis' dissent in Olmstead undoubtedly helpful. The fact that Emsworth agrees with them tends to confirm this analysis.

Justice Souter has the most expansive view of the Fourth Amendment on the current court (see, for example, Illinois v. Caballes), and is certainly up there with Douglas and Brennan for one of the most expansive views in Supreme Court history. Justices Ginsburg and Breyer are "liberal" and therefore will generally favour personal rights in cases such as this.

Rehnquist and O'Connor were conservative federalists as opposed to originalists (which has as a corollary, federalism) and thus generally vote against expansion of rights, though generally do uphold previous expansions of rights (this was especially true of O'Connor).

Kennedy and Stevens do not have a judicial ideology - they are both activists, though of different political shades. It has become increasingly clear that Justice Kennedy hates narcotics and narcotics dealers (see Gonzales v. Raich), thus he will not use the Constitution to protect them. Stevens is the most surprising, though I imagine he hates drugs as well, and he is certainly not averse to substituting his own opinions for the Law (see Texas v. Johnson).