Crime and Justice

A Dearth of Privacy

I had to write a case brief and analysis for class. I’m sharing it on the blog not only because I’m very very busy this week and it lets me make the time spent work twice for me, but also because I found this case, and the implications, to be fascinating. As I have a certain viewpoint of a science fiction fan, I’m extrapolating this outward, as I am sure my readers will understand and appreciate. This case deals with the Fourth Amendment: the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. If I have time, I’ll do another piece on privacy in daily life, but if you want that, ask in comments. I’m a bit overwhelmed with school and etcetera right now. 

Kyllo v. United States, 533 US 27 – Supreme Court 2001

Section I

Summary of Facts:

In 1992, after suspicions of a certain person grew, two agents of the Department of the Interior sat in a car on the street outside a private home and acquired evidence they later used to get a warrant and search the home, confirming their suspicions. The person of interest, Danny Kyllo, was found to be growing Marijuana in his Florence, Oregon home. The agents had gotten the warrant through the use of digital thermal imager, discovering hot spots on the roof of the home and garage that were consistent with the high temperature lamps used in the indoor growing of marijuana plants. The agents did not enter the home or curtilage during the scan, and they did not physically enter such without a warrant. Once they legally searched the house, they found more than 100 plants, and the halide lights the thermal imager had been able to detect through heat exiting the dwelling. (Kyllo v. United States, 533 US 27)

Issues Presented to the Court for Review:

The Court of Appeals for the Ninth Circuit got the case after Kyllo moved to suppress the evidence against him, arguing that the thermal imaging was an invasion of his privacy and a search without a warrant. The court upheld the validity of the warrant and evidence acquired thereby after determining that the imager the agents used could not see through the walls of the house, and thus did not violate the privacy of the resident. Also, the defendant had made no attempts to prevent the heat from leaving the home. This was then moved to the US Supreme Court to be decided upon.

Decision of the Court:

The Supreme Court began with a summation of the Fourth Amendment protection of the home and privacy, restating that they had held before that a visual observation is not a search (Dow Chemical Co v. United States, 476 US 227), but that a presumption of privacy can be had when a person is in their home or other place they expect to be private (Katz v. United States, 389 US 347). In the case of Dow Chemical, the Supreme Court had also upheld the use of aerial surveillance, but they point out that it is important to note this was not an area around a private home. “The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.”

The decision of the Court was based at least in part on the word reasonable in conjunction with the expectation of privacy in one’s own home. They said that withdrawing that protection would erode the Fourth Amendment by allowing police the use of sense enhancing technology to intrude into a constitutionally protected area. Because Katz rejected the used of an eavesdropping device, there is precedent. Also, the Court wants to consider the possibility of even more advanced technology that can see more details than the thermal imagers used in the Kyllo case. (Kyllo v. United States, 533 US 27)

“The police activity was held to be a search, and the search was held unlawful.” (Kyllo v. United States, 533 US 27) The imaging disclosed the activities in the home, and is thus a search. Using it, no agent or officer could know if the activity surveilled was intimate, so could not discern if the surveillance was constitutional. There is a bright line, the Court decide, at what information comes from inside the home, and that line is not to be crossed, even if the officer is not inside the home physically.

Summary of the Dissenting Opinion:

The dissension was formed by Justices Stevens, O’Connor, and Kennedy, who stated that there was a difference between direct access, and indirect deductions made from external evidence. This case, they say, was ‘off the wall’ surveillance on only the outside of the home, not the interior, and there was no need to create a new rule. (Kyllo v. United States, 533 US 27) In the Kyllo case the homeowner did not care about the escaping heat, and allowed it to leave the home. The thermal imager could not and did not see through the wall. Anyone walking by could have felt the vented heat. Aromas generated in a kitchen or other operation are allowed as part of the public domain to be admitted without a warrant. The inference of the escaping heat was then backed up with subpoenaed utility records. If the warmth, or odors, or emissions, can be detected by the public, then the police should not be expected or asked to ignore them. By attempting to curtail the use of sense-enhancing technology, the court hampered itself by delineating that the technology was not admissible until it was available to the general public. By doing that, the Court was less than clear. The ruling was too narrow as well as too broad. (Kyllo v. United States, 533 US 27)

The ruling protects only the home: what is to be done about areas like the phone booth in Katz, where it has been ruled that a reasonable person can expect privacy? In this way the ruling is too narrow. But the ruling is also too broad in that it prohibits the use of ‘waves entering the public domain.’ The device used did not penetrate the walls of the dwelling, and thus did not violate the constitutional rights of Kyllo. (Kyllo v. United States, 533 US 27)

 Section II

Analysis: I disagree with the decision of the court, and the reason I disagree is that I think the thermal imager was not capable of detecting anything inside the house. Nor do I think that a criminal should be allowed to escape suspicion simply because they know how to install insulation. The use of other factors in obtaining the search warrant, like the utility bills and informants, were equally as weighty as the use of the thermal imaging. What if the warmth had been detected during some kind of inspection to determine where a house lacked insulation, and reported by civilians to the police? Would it then have been permissible?

On the other hand, I completely understand the thought process behind the Court seeking to curtail the use of sense-enhancing technology by the government. The growth curve in development of technology that can penetrate walls and detect emissions is no less steep than that of cellular phones, for instance. Now, the thermal imager employed by the Department of Interior agents could not penetrate the walls of the Kyllo home, but technology that can is already out there, and more sensitive technology is on the horizon.

Additionally, the rider that the police may not use technology which is not available to the general public makes this ruling obsolete almost immediately. With a brief internet search, I find a thermal imager equally as powerful, if not more so, than the device used in the Kyllo investigation, available from Davis Instruments for a mere $1999.95. It even comes with onboard software to immediately analyze the results. 

If perhaps that device is a little expensive for the general public, then the iPhone case which allows the user to employ FLIR is only $350. In an article from Forbes (which cannot be argued to be a magazine with limited circulation for specialty purposes), the forward looking infrared phone case could be used to find something like leaking pipes. Or perhaps, for neighbors to detect who in the neighborhood is endangering them all with a meth lab or marijuana operation. Already, the 2001 ruling is out-of date.

On the other hand, only a year ago, a PBS Nova special highlighted the work being done at MIT to further enhance what they dub ‘x-ray vision’ which is currently being used by the military. Able to detect breathing and heartbeats through solid walls, even concrete, it is inarguably ‘through the wall’ technology that would violate the Fourth Amendment if used by police. 

While for now, that technology which seems to have been handed out from the pages of a science fiction tale is not accessible to the public, how long will that be true? And when, not if, it does enter the public domain, does that open up the possibility of police use without a warrant?

I can easily foresee a case coming before the Supreme Court very soon now, debating this against their bright-line stance on visual searches not penetrating the threshold of a home. As technology advances, so will the line pushing against privacy and the intimacy of the home. While I disagree with the decision here, as it does hold police back from using emanations that have entered the public domain, as the dissenting opinion stated, I also see why the court refused to allow this technology to be admitted as permissible in this case.

As more technology enters the hands of the police, and the public, the ‘realm of privacy’ is daily shrinking. Leaving aside the issues of the internet and what people choose to reveal, the use of technology to observe movements inside a home exists now, and will only grow more sophisticated. If the MIT technology can do the equivalent of performing an EKG on a fully-clothed person, who is to prevent it from being used as a de-facto polygraph in an interrogation? Or by the government to determine who is eligible for health insurance? Or simply who might be on drugs and thus can be searched for illegal substances? The home, the person, both are under siege in an era of vanishing privacy, and the Fourth Amendment has never before been so important, and so fragile.

2 thoughts on “A Dearth of Privacy

  1. And what about the inverse applications of technology? What happens when a homeowner is able to build their house with sufficient insulation (I’m thinking 8″+ of WallTite Eco ) so as to prevent the police from detecting pretty much anything being done in the house? Are they going to try claiming “I saw them go in, but we can’t detect anything from within the house, so they must be doing something bad for them to hide it from us.”

    Also, if they can’t detect sound coming from one room of the house, even if they know someone is in there, is it evidence of someone doing something wrong? Or is it a podcaster in his anechoic recording studio? Without entering, they can’t tell, and they can’t enter without being able to tell.

    Also, what if the person growing the pot plants were to be using a photovoltaic array to provide the power? As that would circumvent the possibility of utility bills, is it evidence of soing something wrong? Or is it evidence of an Eco-freindly person trying to be gentle to the planet?

  2. The older I get, the more I become a privacy absolutist. Which can be illustrated by this story:

    When I was a teenager, my mother used to write on a IBM Selectric on a table in the dining room. She frequently left the current draft page in the typewriter in plain view. The privacy dictate was that you DID NOT read what was in the typewriter — even though it was in plain view. Privacy inheres to the person, not the thing, although … it seems to me that “effects” includes radiation from one’s activities pretty thoroughly.

    In any case, I would argue that there is no probable cause in the case in point. In addition, I question the propriety of the state deciding the question of reasonableness in a question limiting its own power as granted in the charter of its founding. As far as I am concerned, there is nothing reasonable about the search in this case. That’s my stance and I’m sticking to it.

    On the gripping hand, (OTGH), the Fourth Amendment does not limit its scope to the activities of government. The commandment is absolute, and as far as I can determine from the actual text, unlimited in its scope. NO PERSON may invade the privacy of one of The People, including, but not limited to agents of the state. (I assert that this is true of many of the articles in the Bill of Rights. Only the First mentions a specific actor — Congress.) As you can imagine, the implications here are fraught.


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