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  Scalia Hits a Clinker
Posted by FoM on June 22, 2001 at 09:59:10 PT
By Jack Dunphy, NRO Columnist 
Source: National Review 

justice Dunphy is feeling his oats today. So much so, in fact, that I dare to pick a fight with none other than Antonin Scalia. Yes, I can already hear the howls out there in NRO Land. "Dunphy," you say, "you must be mad! Scalia is one of our most luminous intellectual lights, perhaps the most brilliant justice since John Marshall. And you, after all, are just some dumb cop."

Well, maybe so. I have nothing but the very highest regard for Justice Scalia and his brand of jurisprudence.

I would much prefer to live with his decisions than those of his brethren who subscribe to that pernicious-yet-advancing notion that the Constitution is a "living document," one that changes to conform to evolving — or devolving — mores.

But even one of such staggering intellectual gifts as Justice Scalia can hit a clinker once in a while, and I submit that his opinion in Kyllo v.United States is just such a clinker. One need only note that Justices Ginsburg and Souter joined the opinion to know something is amiss.

Danny Kyllo was convicted of growing more than 100 marijuana plants inside his Florence, Oregon home.

(Note to libertarians and dope fiends: Dunphy is a drug warrior of the first stripe. Read on if you must, but spare me the sic semper tyrannis e-mail.)

Acting on an informant's tip, a federal agent parked his car on the street outside Kyllo's home and used a thermal-imaging device to scan the heat signature emanating from the triplex. The scan revealed that portions of Kyllo's unit were substantially warmer than others in the same building, indicating the possible use of the heat-generating halide lamps common to "indoor grows." Armed with this information and other investigative data, the agent obtained a warrant authorizing the search of Kyllo's home.

Writing for the majority in the 5-4 decision to reverse the conviction, Scalia ruled that use of the thermal-imaging device constituted a "search" within the meaning of the Fourth Amendment and should therefore have been authorized by a warrant. Thermal imagers, Scalia wrote, reveal "information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area…" He even goes on to say that such devices might disclose to police officers "at what hour each night the lady of the house takes her daily sauna and bath, a detail that many would consider intimate…"

And that is where I — and the dissenters — disagree. Thermal-imaging devices cannot look through walls; they reveal nothing about the interior of a home. Rather, they indicate which portions of the home's exterior are warmer or cooler than others, from which information a police officer must draw inferences. If for some reason I wished to determine the hour at which the lady of the house took her daily sauna and bath, I could stand on the sidewalk, listen for the sound of running water, and look for steam coming from the bathroom window, an exercise in which a thermal-imaging device would offer little advantage and which the Fourth Amendment would not prohibit.

It is settled law that there is no reasonable expectation of privacy in that which is exposed to public view. Aerial reconnaissance of marijuana being grown on private property is not illegal as long as the aircraft is not flown at an unreasonably low altitude. It is also settled law that a trained and experienced police officer may draw inferences from facts that might not arouse suspicion in the ordinary citizen. Many police departments operate helicopters equipped with thermal-imaging devices, the primary function of which is to aid in the search for fleeing suspects. But suppose for a moment that a fleeing bank robber chooses to hide in the backyard of the local marijuana grower or methamphetamine manufacturer. If in the course of searching for the bank robber the helicopter-borne officer uses a thermal-imaging device to scan the neighborhood and recognizes, in addition to the image of the bank robber hiding in the bushes, a heat pattern indicative of illegal drug manufacturing, should that officer then ignore what he has detected because he has inadvertently conducted a "search" of the drug dealer's home?

Justice Scalia also noted that thermal-imaging devices are not in general public use and that their use must therefore be construed as a "search." But in this assertion he ignores the precedent of United States v Place, cited by Justice Stevens in his dissent. In Place, the Court ruled that the use of a trained narcotics-detection dog to sniff luggage is not a "search" if the luggage has not been unreasonably seized. Certainly such dogs are also not in common use, no more so than thermal imagers, and like thermal imagers these dogs detect only that which emanates from the exterior of the items being examined.

The Kyllo decision denies police officers a valuable tool in the fight against drugs, a fight worth continuing.

And with that I must be off: I hear my neighbor's shower running.

Note: The Supremes take away a tool in the drug war.

*Jack Dunphy is the author's nom de cyber. The opinions expressed are his own and almost certainly do not reflect those of the LAPD management.

Mr. Dunphy* is an officer of the Los Angeles Police Department

Newshawk: Nicholas Thimmesch II
NORML Media & Communications
Source: National Review (US)
Author: Jack Dunphy, NRO Columnist
Published: June 22, 2001
Copyright: 2001 National Review
Contact: letters@nationalreview.com
Website: http://www.nationalreview.com/

Related Articles:

Snooping for Indoor Pot Farms?
http://cannabisnews.com/news/thread10123.shtml

X-Ray Vision - Time Magazine
http://cannabisnews.com/news/thread10086.shtml

Can't Scan Without a Warrant
http://cannabisnews.com/news/thread10027.shtml

More Drug Warring - Jack Dunphy
http://cannabisnews.com/news/thread8860.shtml


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Comment #16 posted by lookinside on June 23, 2001 at 22:49:10 PT:

JAMES!
you must have had a very bad day (or hangover) when they
tested the candidates for cop school...you are WAY too
bright to be a cop...you understand the constitution which
must cause constant friction with your fellow cops...

truthfully, i wouldn't wish your job on anyone...it's
tough, dirty, and a great way to get your a** shot off...a
truly dedicated and intelligent officer is a rarity
anymore...i hope you achieve what you want as a cop, but i
think you deserve better...


[ Post Comment ]

 
Comment #15 posted by Jose Melendez on June 23, 2001 at 06:58:02 PT:

James, please email me!
Hi,

Cool post, for a cop... (big grin)

I am looking for law enforcement types (retired or not) to help me keep my advertising and other marketing "legal".

For instance, a friend of mine told me of a microbrewery that got raided by ATF for listing the ingredients and nutritional information on the bottles... it was accurate, but apparently against the law to list on the beer bottles??

Now I see that the people who sell Hempen Ale are discontinuing any reference to Cannabis in their advertising, and it disgusts me that a company can be forced to eliminate truth in advertising.

I see that somehow, there is no skull and crossbones required on alcohol and tobacco labelling. Is that also disallowed? Because my marketing plan includes selling accurately labelled legal drugs, but packaged similar to illegal ones; to publicly expose the war on drugs and directly compare and contrast safety, efficacy and social costs.

Sorry to all for the long posts. I really must learn to be more concise:)

Peace,




[ Post Comment ]
 
Comment #14 posted by James on June 23, 2001 at 05:20:38 PT
reply to Dunphey's misconception
I am a Law enforcement officer myself, but first & foremost I am a citizen of this great country. I am a veteran of the Gulf war. I've defended our constitution literally & Mr.Dunphey has absolutely no clue what Justice Scalia's decision is based upon. The constitution safeguards peoples liberties & fundamental freedom from unreasonable search & seizure. Dunphey stated that this thermal imaging device does not intrude on a persons home, or the activity inside the home. Thats such an absurdity. I attended a seminar put on by the DEA. This seminar covered thermal imaging devices. These devices guage the amount of heat & are very useful in determining indoor marijuana grow operations. This is one of many tools law enforcement officials have at their disposal. This device would not have been intrusive if the officer's had aquired a search warrant before using the device.If the officer's working this case had established enough probable cause ie'( informants, utility records,garbage,odor's & others) this device could probably have been used via a search warrant. This device clearly is picking up activity from inside the dwelling. Dunphey stated that it was picking up activity from the homes exterior. Wrong!!! The device is picking up activity that originates in the home & is subsequently making a wall , or another portion of the homes exterior warm. I do not advocate a persons right to break the law , but at the same time I do not advocate abolishing citizen's 4th amendment rights. We need more police officer's in this country that respect the rights & freedoms that our founding fathers fought so hard to obtain. This ruling by the supreme court should be applauded by every citizen of this great country. This decision took great courage by Justice Scalia.

[ Post Comment ]
 
Comment #13 posted by J.R. Bob Dobbs on June 22, 2001 at 18:23:46 PT
Dunphy is a Hate Fiend
Jose, near the end of a lengthy yet lucid post, spoke:

>>Arrest prohibition, before they come for your four dollar Starbucks coffee.<<

If coffee was outlawed, it wouldn't be "Starbucks" - although it'd probably still be Columbian. And it wouldn't be $4 a cup, either...

I've asked friends who smoke both tobacco and herb whether they would continue their tobacco consumption if it was prohibited, pushed onto the black market, you had to spend a long time to hook up with some, and it cost in the range of $30 a pack. All of them said, Heck no, we'd just smoke the herb...

[ Post Comment ]

 
Comment #12 posted by mayan on June 22, 2001 at 16:33:55 PT
What an Idiot
Whether it's the interior or the exterior of the house, what does it matter? It's still someones house! It amazes me how some boneheads can have such disregard for a persons basic right to privacy on their own property. It is quite obvious that Dunphy is not the brightest crayon in the box.

[ Post Comment ]
 
Comment #11 posted by Randøm_ on June 22, 2001 at 15:53:11 PT
Scalia just grew a brain-stem
It is the "settled laws" that are unconstitutional. Narco dogs and yard spying by aircraft is an invasion of privacy and often upon private property. I agree that the U.S. Constitution is not a changing document, and it's about time that Justice Scalia actually comprehended the concept of it and not just poor legal precident.

Am I a Libertarian or a dope fiend? I don't use dope, I use herbs ... it's a plant, duh! If I must wear such labels, then let the soccer moms and dare drones (a.k.a. fascists) slander me. Wait, now I'm name calling, lol, it's kinda fun. However, we have facts t back us up, not jibberish and propaganda.

I used to believe that cops were supposed to enforce The Constitution, then I realized that it is The Constitution that tries to protect us from cops and the others who impinge upon the equal rights of another. Laws are supposed to protect each of us from having our rights violated "and these are all in which laws ought to restrain." (Thomas Jefferson)

Peace, Randøm_

[ Post Comment ]

 
Comment #10 posted by dddd on June 22, 2001 at 15:41:53 PT
Was it a strange dream?
To go slightly off topic,,,,,does anyone know anything
about Scalias daughter(?),,or something,,being appointed
to a very influential position?...I was half awake,and I
thought I heard Bill Maher mentioning this...I have been
wandering the internet for several hours looking for info
about this,,,but there is NOTHING......Nary a news release
anywhere.,,,,(most peculiar,,,,indeed),,,or maybe it was
an Orange Sunshine related flashback induced illusionary misperception??

or..,,am I alzheimering into the golden years already....?....

can you help?.....ddddazed?

[ Post Comment ]

 
Comment #9 posted by don genero on June 22, 2001 at 15:16:49 PT:

shower?sauna?
Sounds like he's window peeping on the woman next door!


[ Post Comment ]
 
Comment #8 posted by observer on June 22, 2001 at 15:12:53 PT
associated with a hated subgroup
An "officer of the Los Angeles Police Department" just can't help himself, can he?

Note to libertarians and dope fiends . . .

"The drug is associated with a hated subgroup of the society or a foreign enemy."

NIDA: Themes in Chemical Prohibition, William L. White, 1979
http://www.druglibrary.org/schaffer/History/ticp.html



[ Post Comment ]

 
Comment #7 posted by lookinside on June 22, 2001 at 14:53:16 PT:

Astounded...
FYI...it came out a few years ago thatpolice departments DO
give IQ tests...their hiring range is very limited:

Smart enough not to shoot themselves in the foot(usually)
and able to read the constitution...

but not smart enough to have a conscience or understand the
constitution that they read...


[ Post Comment ]

 
Comment #6 posted by Jose Melendez on June 22, 2001 at 12:56:40 PT:

THUS EVER TO TYRANTS -or- BAD COP, NO DOUGHNUT
I am so ignorant as to have had to look it up -

"sic semper tyrannis" means "thus ever to tyrants"

So I'll spare you the email, Officer Dunphey (or whatever your bloated salary allows you to call yourself)

And I'll fight your drug war with a more powerful weapon than any sword or gun...

_My_ words.

You sir, are a criminal.

You commit crimes against humanity by intentionally closing your eyes to the truth:

Marijuana never killed anyone.

Any other negative side effects are either a direct result of your WoD (which is fraud), or related to the combustion technique that most pot heads use to self-medicate.

ALL of your "legal" drugs work the same way; they encourage the brain to use dopamine and seratonin among other cool NATURAL substances we as humans have been using for thousands upon thousands of years.

So, where do you draw the line? What if I start manufacturing THC-free Cannabis flavored or scented cigarettes, candy, perfume and insence JUST TO TEST your bogus laws?

What does that do for your probable cause? Are you going to beat up some old white guy with his golf clubs because he prefers his pipe to smell like ganja instead of crap?

Are you going to drag me into court for making a dangerous and defective product, while at the same time you are NOT going to prosecute Big Tobacco executives for lying about the dangers of their LEGAL products?

Dare I mention that those SAME executives were advised by Ken Starr? (OK, I'm not trying to imply any real conspiracy here, I'm just saying it seems odd that the same guy who advised tobacco executives spent millions of dollars prosecuting the last president for blow jobs, but could not be bothered to tell his clients to just tell the truth to Congress about the addictiveness and health risks of cigarettes?)

And what if narcosoft's Cannabis scented tobacco could be consumed in a vaporizer? Now there is no second hand smoke, but it still smells like pot. What then, Mr. Dunphy? You gonna arrest somebody cause they smell like pot? It would be safer than cigarettes...

You make more money for less work, because marijuana is illegal. Pot heads don't fight back like drunks or bank robbers, and you know it. Seven hundred thousand of us go to jail each year for simple possession, almost none of us vote. AND you get to keep the social security money from the four hundred thousand smokers that die early, so your money machine just keeps on rolling, does it not?

That is why people like you should be tried at the Hague. Crooked cops like you, who say, "I was just doing my job..."

Bull.

The Nuremberg Defense is invalid, sir. YOU are part of the Blue Wall of silence, and I say you actively participate in the fraud that is prohibition. Got any kids? Are they on Ritalin or Prozac? Which one, or is it both? Or maybe you personally dabble with St. John's wort for depression, and then party down at the bar with your coworkers and look the other way while everybody drives home...

Everyone does drugs.

Arrest prohibition, before they come for your four dollar Starbucks coffee. I'd bet Jenna Bush would rather wake up stoned than hung over.

So for her dad's sake:

Mr. President, tear down this wall. No more lying about pot and making vast profits off your prison industry. Go fight real crime, and while you are at it, stop bombing Puerto Rico. Because war is crime, and Drug War is TREASON!




[ Post Comment ]
 
Comment #5 posted by kaptinemo on June 22, 2001 at 12:41:17 PT:

Some notable quotes
US Supreme Court Justice Louis Brandeis:

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure, and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men."

And, particularly germaine here:

"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel
invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

I've known many 'men of zeal'. In uniform and out. In public service and private industry. In church pulpits and on street corners. At home or office, it matters little. And, despite their many and varied differences, one characteristic can be said to be universal amongst them: they think they have the God-given right to tell other people how to live.

No matter what casuistry they engage in, what sophistries they tell themselves - and their victims! - to justify their depredations, it always devolves to that. They are right, and everyone else is wrong (and therefore a priori are stupid and need to be led about by those more 'enlightened') and should be obeyed without question.

It is because of men of zeal that this country may someday be brought to ruin.

[ Post Comment ]

 
Comment #4 posted by Astounded on June 22, 2001 at 12:36:03 PT
Moron
WOW, and I suppose you believe the war on drugs can be won. It's too bad they don't conduct IQ tests to be a member of the LAPD, surely you would not have been hired.

[ Post Comment ]
 
Comment #3 posted by kaptinemo on June 22, 2001 at 12:20:49 PT:

Is anyone here surprised when a cop
favors having a police state?

Mr. "Dunphy" immediately lays to rest any doubt upon which side of the ideological fence he resides upon:

"(Note to libertarians and dope fiends: Dunphy is a drug warrior of the first stripe. Read on if you must, but spare me the sic semper tyrannis e-mail.)

Uh, excuse me, Mr. Public Servant (have to remind the goons from time to time that they get their pay from money extorted from us at threat of jail) but it was the very same class of people - libertarians with a lower case "l" - that you sneeringly dismiss with such nonchalance that made this nation what it is.

That is, before the War on Drugs.

It was libertarians which formulated the very Constitution which you with pro forma platitudes claim that you revere, while secretly no doubt gnash your teeth at the strictures it places upon you and your blue-clad - and all too often, black-clad, Darth Vader wannabe - brethren.

If you still don't get it, I suggest that in order to refresh your memory, you remove the wallet from your pocket and gaze upon their likenesses; they're printed upon the currency.

Yeah, those 'dead white guys' as Charlton Heston so drolly refers to them.

Withpout libertarians, we'd still be speaking the King's version of English...and paying his taxes. Which people with your mindset would no doubt be happy to break some heads in the process of collecting for him.

The same libertarians which penned the same Bill of Rights to bind the government from mischief - the kind of mischief that Uncle and his cohorts are busily engeged in courtesy of this damnable War on Drugs. In which name the very same kind of grievous harms King George 3 engaged in. No-knock warrants. Suspension of civil liberties on the basis of anonymous tips. Prolonged incarceration without trial. Theft of property - and life, itself! (ever heard of Alberto Sepulveda, Mr. "Dunphy"?) - without the merest pretense of following the 5th Amendment.

As Yogi Berra is credited with saying, It's 'deja vu, all over again.' Thanks to people like you.

In looking back over where Mr. "Dunphy" 'serves', I don't find his attitude surprising at all. I have to wonder what part of the Rampart Scandal he has played?



[ Post Comment ]

 
Comment #2 posted by Jack H on June 22, 2001 at 10:35:54 PT
one more thing
oh yeah, the idea of a constitution that changes with the times is a terrible idea (ROME). But I'll let that statement slide since you are a cop and not a historian.

[ Post Comment ]
 
Comment #1 posted by Jack H on June 22, 2001 at 10:26:31 PT
First off-
I agree that the fight against drugs is a noble one. However, please understand that continuing to wage a war against the users is not beneficial. Regulation and Education are the only ways to cope with people (FAMILY members) using drugs. The decision of the Supreme court was just. Limits are now set; while technology advances. Why would you care about someone growing marijuana when it is obviously not as dangerous as alcohol in itself? If you think I'm wrong in that last statement..prove it. Win all the battles you want in this war against your neighbors. We will win the war, "Mr. Dunphey".

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