FindLaw Forum: Oregon Pot Case Turns on Technology

FindLaw Forum: Oregon Pot Case Turns on Technology
Posted by FoM on March 20, 2001 at 07:58:42 PT
By Barton Aronson, FindLaw Columnist
The U.S. Supreme Court recently heard oral argument in Kyllo v. United States. To decide the case, the court will have to decide how society feels about something called thermal imaging -- no mean feat, since "society" has never heard of thermal imaging, and therefore has no opinion of it whatsoever. The Kyllo case nicely illustrates the fact that when it comes to the Fourth Amendment generally, and searches conducted using new technology in particular, judges do not have a lot to go on. 
Grow your own:Danny Lee Kyllo pleaded guilty to manufacturing marijuana after the police caught him growing 100 marijuana plants in his home in Florence, Oregon in January 1992. The police had some scattered information connecting Kyllo to marijuana production, including the fact that his utility bills were unusually high: Growing marijuana indoors requires powerful heat lamps. You can, of course, eat up a lot of electricity without generating intense, focused heat. This is where the thermal imager comes in. The imager is a fairly crude instrument. It senses varying amounts of heat emanating from parts of a building (your walls, your roof) or other buildings (your house, your neighbor's). It translates that heat into an image in which greater amounts of heat appear lighter and lesser amounts appear darker. The imager does not tell the police what is generating the heat, or the precise temperature. Sure enough, the thermal imager showed unusually high levels of heat emissions from parts of Kyllo's home, indicating that he might, indeed, be using the powerful heat lamps required to grow marijuana. All of this information persuaded a judge to issue a warrant, and the police who executed the warrant found Kyllo's marijuana operation. Two important questions:The Fourth Amendment says that the government cannot engage in "unreasonable" searches of our "persons, houses, papers, and effects," and that search warrants require probable cause. If it is not a search, the police do not need a warrant. If you are growing marijuana on your front lawn, for example, and the police walk by and see it, they have not conducted a "search" at all. It is only a search if the government somehow invades your privacy. To decide whether the police have invaded your privacy by conducting a search, courts ask two questions: Did the defendant have a personal expectation of privacy? Is society prepared to recognize that expectation as reasonable? We ask the second question because the language of the Fourth Amendment appears to require it, protecting us as it does only against "unreasonable" government activity. The first question is usually easy to answer. If you hide your light under a bushel, you are manifesting a subjective expectation of privacy. If you bring your light to church on Sunday, you are not. What is 'reasonable'?It's the second question that involves judges in an unusual role. To begin with, the Fourth Amendment's use of the word "unreasonable" is remarkable: None of the other rights protected in the Bill of Rights hinges on the reasonableness of the government's conduct. Freedom of speech is protected -- period. A defendant's right to confront the witnesses against him is protected -- period. And so on. Courts, of course, have grafted limitations onto most of this absolutist language (freedom of speech, for example, does not allow you to yell, "Fire," in a crowded theater), but the Framers themselves put the "reasonableness" front and center only when it came to searches. A so-called textual approach to the Fourth Amendment is of little help. Eighteenth century dictionaries define the word "reasonable" as nebulously as the dictionaries of today do. Reasonable means reasonable. All other efforts at definition are nothing but lists of synonyms. An "originalist" approach is no better, despite recent efforts by some judges to use one. "Originalism" is a plausible approach only when the language in issue had a widely understood meaning by those who used it. But unlike "due process" or "cruel and unusual punishment," the expression "unreasonable searches and seizures" was not a term of art used by 18th century lawyers. Thus, there is no body of writings that shed light on what that phrase meant to the people who used it. What is reasonable has always turned entirely on the specific facts of the matter, and it is simply, well, unreasonable to suggest that the Framers had any different understanding of the word. In the eye of the beholder:The law, of course, is chock full of reasonableness standards. If you are accused of being negligent, for example, the jury will decide whether you behaved as a reasonable person would have behaved. If you defend against assault charges by asserting that you needed to defend yourself, the jury will debate whether your fear of attack was reasonable. In both of these examples, and countless others, a jury -- that is, a stand-in for the community -- decides whether some conduct is reasonable. In so doing, the jury will essentially consult itself: What is reasonable is what society says is reasonable. The jury represents society. Therefore, anything the jury says is reasonable is so. The Fourth Amendment, perhaps uniquely among the rights safeguarded by the Constitution, requires judges to play this role, too. How do judges intuit society's views on privacy? The way judges usually do things: by analogy. Is thermal imaging more like going through your garbage (which courts have allowed) or more like looking into your window with a high-powered telescope (for which courts generally require a warrant)? These analogies, of course, come from prior Fourth Amendment cases. In other words, to find out what society thinks is reasonable, judges look at what other judges have said society thinks is reasonable. To understand the problem with this approach, imagine the perfect system for figuring out what is a reasonable expectation of privacy and what is not. It would be a vote, or a poll -- the usual ways of finding out what the members of a democratic polity think. In a jury trial, we actually summon a microcosm of the community to court to hear the evidence and then deliberate and vote. But when it comes to discerning society's expectations of privacy, we have only a judge, who consults principally what other judges have thought. New technologies and 'reasonableness'The limits of this approach are especially acute when Fourth Amendment cases involve unusual technology. Thermal imaging has been around for years, but it is a fair bet that most people have never heard of it, and do not really have an opinion about it. Moreover, the history or availability of technology is not much of a guide to Fourth Amendment opinions. Telescopes have been around centuries, and you can buy them in any store, but you still cannot use very high-powered ones to peer into house windows without a warrant. In contrast, consider your telephone calls. For years, the telephone company had no means for detecting what numbers you were dialing. Now, the telephone company knows exactly what numbers you are dialing, and those numbers show up on your phone bill and caller ID devices. As a result, the courts no longer recognize a privacy interest in that information. Telescopes have been able to snoop into our homes for a lot longer than the phone company has known what numbers we dial. How did the courts decide that society has reconciled itself to one technology but not the other? Through their personal experiences and the personal experience of other judges -- not exactly how judges are supposed to approach legal questions. The Constitution usually asks judges to "say what the law is," in Chief Justice John Marshall's famous phrase. Perhaps uniquely, the Fourth Amendment invites judges not to say what the law is, but to breathe in the zeitgeist. It is not at all clear what special tools judges have for doing this, but it is clear -- reasonably clear, anyway -- that that is exactly what the Fourth Amendment requires. Lucky for us, judges are people, too. Barton Aronson is a prosecutor in Washington. Before that, he was in private practice in Washington and an assistant district attorney in Massachusetts. The opinions expressed in this article are his own. Barton Aronson is also a FindLaw columnist. Note: Special to Newshawk: greenfoxSource: CNN (US Web)Author: Barton Aronson, FindLaw ColumnistPublished: March 19, 2001Copyright: 2001 Cable News Network, Inc. Contact: Forum: Website Feedback: Findlaw: Articles - Thermal Imaging
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Comment #9 posted by hehaw on March 21, 2001 at 12:41:28 PT
Ceramic / Heat Sheild / Insulation Anti-Infared
This is the paint I was talking about.
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Comment #8 posted by dddd on March 20, 2001 at 17:04:51 PT
grow room construction
 If anyone is interested,it is not that hard to make a thermally shielded grow room.Ceramic paint from NASA would be quite pricey.A plenum,some tile backer board,(cementboard),insulation,and ventilation should do the trick.The most expensive part,wouldbe to get a thermal imager to verify your success
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Comment #7 posted by jAHn on March 20, 2001 at 13:15:05 PT
Let's not forget...Dan B,
That this particular Prosecutor is, more than likely, a Proud Sponsor/Shareholder of the perverts that manufactured this "toy." And that these devices, also, can see the heat generated by a couple of lovers mating while coupled in Intercourse. Sounds like Technology of the Third (modern=4th)Reich!!! Who let's people develop crap like this? This is what is "Going to win the war on some drug(gies)?" "Every day, it's a getting closer, going fas-ter than a roller-coaster!"
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Comment #6 posted by Atti on March 20, 2001 at 13:09:39 PT
Advances in thermal imagery
Lets say the supreme court does allow these crude thermal imagery devices to be in the hands of every law enforcement agency in the country(which most already have). What happens when these 'crude' devices improve? Law enforcement says these devices are unable to see through walls, yet. Yet, we live in the most highly technological era, if the the technology truly isn't there now, how long will it take? If certain types of thermal imagery devices are banned, whose is going to stop law enforcement from using them. 
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Comment #5 posted by protector on March 20, 2001 at 12:59:51 PT
Protect yourself.
For anyone who is interested: There is a ceramic paint, developed by nasa, that supposedly acts as an excellent barrier to this intrusion.peace. 
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Comment #4 posted by Dan B on March 20, 2001 at 12:23:03 PT:
Can't see through walls, eh?
The LEOs like to say that infrared imagers do not see through materials like walls and such. Well, take a look at the image gallery on the page to which observer has conveniently provided a link (thanks, observer!), and scroll down until you see the picture with this label:Patient No. 364c recovering from spinal surgery. Infrared imaging has capabilities of detectingproblems within the human body. Can't see through solid objects, eh? Okay, the human body isn't as solid as a wall, but I think this picture is reason enough to question that assertion. Of course, if you read the manufacturer's comments, you will see virtually the same arguments made by the prosecutors in this case. The manufacturer's motivation is quite obviously money. The prosecutors' motivation is, of course, simply winning another case, another gold star to place on their resumes.Dan B
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Comment #3 posted by NiftySplifty on March 20, 2001 at 12:04:47 PT
This is some crap, here.
I had a difficult time reading this because not only did it seem like a bunch of misguided ramblings, but seemed to be excusing the use of a thermal imager. It is a fairly crude doesn't tell police what is generating the heat, or the temperature. It doesn't matter, therefore, that it is basically looking through the walls, does it?Also, with quotes like Sure enough, the thermal imager showed unusually high levels of heat emissions from parts of Kyllo's home, indicating that he might, indeed, be using the powerful heat lamps required to grow marijuana. Of course, he could have had high powered lights needed to do some videography, or portrait photography. Good thing indeed that the judge signed the warrant!N...
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Comment #2 posted by Ethan Russo, MD on March 20, 2001 at 08:41:27 PT:
Come on Down!
I'd be curious about the heat signature of my grow room, obviously visible in the entryway to our home to anyone who braves the driveway. I suspect it spills a lot of heat, even though there is no cannabis. Heat does not guarantee illegal activity. I invited law enforcement to inspect it, but had no takers.
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Comment #1 posted by observer on March 20, 2001 at 08:26:18 PT
Another Witch Test...
This kind of "evidence", like a dog barking, is of course a blank check for "law" enforcement to search anyone, anytime. Who's interpretation of the so-called "heat signatures" is used? Are the standards for this interpretation any more stringent than claiming "the dog indicated" when the dog wags its tail near someone the kindly officer intends to search? supposed "evidence" of a grow room ... a good lawyer might use these devices to capture identical images of non-grow rooms, showing that officer friendly couldn't have "discovered" the "grow operation" using one of these things.thermal infrared camera images / thermal ir pictures
Thermal IR in the Courts
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