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| High-Tech Devices Require a Warrant |
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Posted by FoM on June 11, 2001 at 21:20:56 PT By Edward Walsh, Washington Post Staff Writer Source: Washington Post 
In a case pitting constitutional privacy protections crafted in the 18th century against the intrusive power of modern technology, the Supreme Court ruled yesterday that police must obtain a search warrant before using high-tech devices to gather information from inside a private home.In a 5-4 ruling featuring an unusual alignment of justices, the court said the key test was whether law enforcement officers would have had to enter the home to obtain the same information if they did not have access to modern devices. In such a case, the majority said, the officers must first show probable cause of a crime and obtain a search warrant, just as they do to physically enter a home and conduct a search. The case involved an early morning surveillance in 1992 by two federal law enforcement agents who pointed a thermal imaging device at the outside of the home of Danny Lee Kyllo in Florence, Ore. The device recorded unusual amounts of heat coming from parts of the home, reinforcing the agents' suspicion that Kyllo was using high-intensity lamps to grow marijuana inside. Based in part on that information, a judge issued a warrant to search the home, where the agents found more than 100 marijuana plants. But yesterday the Supreme Court said that the use of the heat-sensing device before the warrant was issued was an impermissible search of Kyllo's home, violating the Fourth Amendment protection against "unreasonable searches and seizures." Legal experts said the decision was an important reaffirmation of Fourth Amendment rights in the face of rapidly advancing technological changes that are enhancing law enforcement's ability to gather information about those they suspect of wrongdoing. Law enforcement officials characterized the ruling as merely requiring an additional step they must take before using such high-tech devices and said it would not be an undue burden on them. Writing for the majority, Justice Antonin Scalia said the case confronted the court with the question of what limits there are on the power of modern technology "to shrink the realm of guaranteed privacy." "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," Scalia wrote for the majority. Citing the rapid pace of technological development, Scalia added that to rule otherwise "would leave the homeowner at the mercy of advancing technology -- including imaging technology that could discern all human activity in the home." Scalia was joined in the majority opinion by one of the court's other most conservative justices, Clarence Thomas, and liberal Justices David H. Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice John Paul Stevens, usually a leader of the court's moderate to liberal bloc, was joined in dissent by Chief Justice William H. Rehnquist and the court's swing votes in many important cases, Justices Sandra Day O'Connor and Anthony M. Kennedy. In his dissent, Stevens drew a distinction between "through-the-wall surveillance," which he said was impermissible, and "off-the-wall surveillance" that records conditions outside, but not inside, a home. Since the thermal imaging device that was pointed at Kyllo's home only recorded heat levels outside the structure, "the officers' conduct did not amount to a search and was perfectly reasonable," he said. Stevens added that he would not erect constitutional barriers to the use of such technology by law enforcement agencies "unless it provides its user with the functional equivalent of actual presence in the area being searched." The ruling was hailed by Steven R. Shapiro, national legal director of the American Civil Liberties Union, which supported Kyllo's appeal of lower court rulings upholding the warrantless use of the thermal imaging device. "It means that the Fourth Amendment is going to apply to all the high-tech technology that is rapidly being developed," he said. "Big Brother must now pay attention to constitutional principles." But Kent Scheidegger, legal director of the California-based Criminal Justice Legal Foundation, which generally supports law enforcement agencies in court disputes, played down the significance of the ruling. "It is an additional step they have to go through," Scheidegger said of police. "The Fourth Amendment is important, privacy is important, but this is not a blockbuster case." Police detective Larry Wilson of Plano, Tex., an expert in thermal imaging technology, said he and other law enforcement officers will "still conduct business as usual." "Either way they decided was fine with me," Wilson added. "The clarity is there as far as the Supreme Court is concerned. . . . Now we just add one more step in our investigations." Harvard Law School professor Bill Stuntz, a leading expert on Fourth Amendment issues, said "this is an important case because it is an important issue. It says the Constitution protects some level of privacy that is not defined by current technology. That's very important in a society where technology is advancing as rapidly as in ours. So it's not a radical advance, but it's a big deal." But Stuntz added that Scalia's emphasis on police use of technology that is not generally available to the public could mean the line drawn by the court yesterday could be only temporary. "Twenty years from now you may be able to buy thermal imaging technology at a Wal-Mart," he said. "Then either we get less privacy or the court has to draw another line. Kyllo is not the last word on this." Kyllo entered a conditional guilty plea to one count of manufacturing marijuana pending the outcome of his appeal on the search issue. The Supreme Court ordered the district court to determine whether the search warrant it issued was supported by probably cause without the thermal imaging data and, if not, whether there is any other basis for allowing the results of the search to be admitted as evidence against Kyllo. The case is Kyllo v. U.S., No. 99-8508. Court: Search Violates Privacy Right. Source: Washington Post (DC) Related Articles: Court Limits Police's High-Tech Search of Homes Court Rules on Heat-Sensor Searches Supreme Court Rules Thermal Imaging Is a Search Home Comment Email Register Recent Comments Help |
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| Comment #5 posted by greenfox on June 12, 2001 at 10:25:38 PT |
| I just thought I would share insight "from the front lines" as it were. I simply do not wish to see anyone here put in any sort of unwanted prediciment. My love is for all who love freedom; my hopes, wishes, and desires for your safetly (AND freedom) remain untouchable. -gf [ Post Comment ] |
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Comment #4 posted by Dan B on June 12, 2001 at 09:29:07 PT:
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| I do not grow my own (I don't smoke it enough to justify the expense, and I live in an apartment, which means that periodically they can come through to "spray for bugs"--they do this about once a quarter), but I appreciate your comments and your insight. Yes, this is an important decision, but not all-important. I have to say that I was happy yesterday when I read this, but I also understand that some of these judges are likely just trying to regain some support that they obviously lost when they ruled against compassion clubs in April. They do not have my support. I still want to send each of them to prison for a long, long time. But enough of that. What I most admire about your comments, greenfox, is how sensible they are. I think it is extremely important to warn people that this decision does not automatically make growers safe fromprosecution. It is an important step, but we still have along way to go. Thanks, greenfox. Dan B [ Post Comment ] |
| Comment #3 posted by greenfox on June 12, 2001 at 07:46:09 PT |
| For many readers here, my banter on “growing” is old hat. It is my personal opinion that if you are reading this, and you are a cannabis activist, you should be growing your own. There is a plethora of potential regarding growing that should attract you all to this wondrous, (and yet somehow ponderous) hobby. That said, I’d like to take a moment to expand upon this Now, I don’t want to sound overly pessimistic. This is a Practically, all this ruling does is require police to use In closing, I want you all to know that I’ve been in this sly in green, foxy in kind.... |
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Comment #2 posted by johnypotseed on June 12, 2001 at 05:27:43 PT:
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| Y'know it's something big when they try to play it down. I laugh in the face of the fascists who think it is a good thing to enforce the law by any means necessary. And they were shot down by the conservative side of the court. Makes me wanna dance. Don't believe that this isn't a land-mark case. This sets precedent for how law enforcement may go about its business. Maybe now they can concentrate more on violent crime, and white collar crime, and all the other things that outweigh the importance of some guy growing some pot plants. Long Live America!!!!!!!!!!!! J [ Post Comment ] |
| Comment #1 posted by dddd on June 12, 2001 at 04:11:51 PT |
| >""It is an additional step they have to go through," Scheidegger said of police. "The Fourth Amendment is important,privacy is important, but this is not a blockbuster case." Police detective Larry Wilson of Plano, Tex., an expert in thermal imaging technology, said he and other law enforcement officers will "still conduct business as usual.""< ......Like I said,,,this means almost nothing,except to the one
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