Kyllo, Danny v. U.S.

Kyllo, Danny v. U.S.

By: Arundhati Parmar, Medill News ServiceQuestions presented

Does the 4th Amendment protect against warrantless use of a thermal imaging device which monitors heat emissions from a person's private residence?

Brief

At 3:20 a.m. on Jan.16, 1992, a sergeant of the Oregon National Guard used a thermal imaging device from his car to monitor heat emissions from Danny Lee Kyllo's home in Florence, a coastal town directly west of Eugene.

Through the Agema Thermovision 210, he observed the roof of Kyllo's home and one wall emit unusually large amounts of heat. As Kyllo was already under suspicion by federal authorities for drug-related activities, the sergeant concluded that such heat loss could only be due to indoor marijuana growth.

The Agema Thermovision 210 can detect heat emissions from distant objects, which would otherwise be invisible to the naked eye. For instance, it can pick up heat from a variety of activities that may occur inside a house -- couples embracing, greenhouse cultivation or even a person standing behind a door. The more advanced the machine, the clearer the image of the object producing the heat.

The Oregon National Guard handed over the readings to federal agents because the National Guard was assisting in the ongoing federal investigation. Eleven days later, after obtaining a search warrant from a federal magistrate, agents searched Kyllo's home and arrested him upon discovering marijuana plants, weapons and marijuana-growing equipment. Kyllo was indicted on one count of manufacturing marijuana.

In U.S. District Court in Oregon, Kyllo filed a motion to suppress the evidence, arguing, among other things, that the use of a thermal imager without a search warrant was an unreasonable search under the 4th Amendment and infringed on his privacy.

After his motion was denied, Kyllo pleaded guilty and was sentenced to nearly five and a half years in prison. He was granted bail pending the outcome of his appeal.

In 1994, the 9th Circuit Court of Appeals reviewed whether the warrant used to search Kyllo's home was based on knowingly and recklessly false information in the affidavit for the warrant, and sent the case back to the district court to hold an evidentiary hearing on the capabilities of the Agema.

The district court once again denied Kyllo's motion to suppress, concluding that the warrantless search of Kyllo's home with the Agema was permissible. Kyllo appealed anew.

Four years later, in April 1998, the 9th Circuit, in a 2-1 decision, held that the use of a thermal imager was unconstitutional. Citing the 1967 U.S. Supreme Court decision in Katz v. USA, Judge Robert Merhige wrote, "Surely a defendant, such as Kyllo, who moves [transfers] his agricultural pursuits inside his house has similarly manifested a subjective expectation of privacy in those activities."

In a brief dissent, Judge Michael Hawkins commended the majority for making "the best case imaginable for the proposition that the use of a thermal imaging device constitutes a search within the meaning of the Fourth Amendment." Yet he was not persuaded.

"Whatever its Star Wars capabilities, the thermal imaging device employed here intruded into nothing," he wrote. "Rather, it measured the heat emanating from and on the outside of a house."

The government petitioned for a rehearing and in the interim, Judge Merhige retired and was replaced by Judge Melvin Brunetti. On Sept. 9, 1999, the three-judge panel issued a new 2-1 opinion, finding, in what it called a case of first impression for the circuit, that monitoring heat emissions by a thermal imager did not intrude upon Kyllo's privacy.

This time, Judge Hawkins wrote the opinion for the majority. In it, he reiterated what he had said in his earlier dissent about the Star Wars device intruding into nothing, and elaborated.

The Agema 210 "did not literally or figuratively penetrate the walls of the Kyllo residence" to expose activity within, he wrote. "While Kyllo's decision to move his marijuana-growing operation indoors may well show he had some subjective expectation of privacy in the operation, he took no affirmative action to conceal the waste heat emissions created by the heat lamps needed for a successful indoor grow."

In dissent, Judge John Noonan compared the intrusion to that of a telescope. "The closest analogy is use of a telescope that, unknown to the homeowner, is able from a distance to see into his or her house and report what he or she is reading or writing. Such an enhancement of normal vision by technology, permitting the government to discern what is going on in the home, violates the Fourth Amendment."

The dissent raised two other analogies. "If Kyllo started a fire in his fireplace there isno doubt the government could use the smoke rising from his chimney as a basis for securing a warrant if a fire in the house suggested the commission of a crime. If Kyllo was operating a methamphetamine laboratory in his home and the smell reached the nose of a policeman on the street, there would be probable cause to seek a warrant," Noonan wrote. "The trouble with these two analogies is that they both depend on unaided human senses reading the signs from the house. In each the homeowner has no reasonable expectation that the signs will not be observed. Our case involves amplification of the senses by technology."

And finally, the dissent raised the specter of George Orwell's 1984. "Although the dread date has passed, no one wants to live in a world of Orwellian surveillance," Noonan said. "On the hearing of this case on its first appeal we were prompt to express concern as to whether the Agema 210 could 'detect sexual activity in the bedroom.' and to state that a technology revealing sexual activity was impermissible. On this appeal the majority does not deviate from this position while it views the Orwellian dangers as speculative and at most potential."

In his petition for certiorari to the U.S. Supreme Court, Kenneth Lerner, Kyllo's attorney, noted that the 9th Circuit's opinion is in conflict with conclusions of the state supreme courts of Washington, Pennsylvania and Montana.

On Sept. 26, 2000, the U.S. Supreme Court granted certiorari in the case and allowed Kyllo to proceed in forma pauperis.

On June 11, 2001, an atypically divided Court held 5-4 that thermal imaging surveillance is a search for 4th Amendment purposes, and presumptively unreasonable without a warrant.

The majority opinion was authored by Justice Antonin Scalia. Joining him were Justices Clarence Thomas, who often sides with Scalia, and Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer who often don't when the Court is split.

Justice John Paul Stevens wrote the dissent for himself, Justices Sandra Day O' Connor, Anthony Kennedy and Chief Justice William Rehnquist.

At the vortex of the Court's split was the issue of how to view thermal imaging as a technological matter.

"The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much," wrote Scalia in framing the case for the majority. "It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology."

Scalia's majority concluded that thermal imaging is a device that is notin general public use, and is used to explore details of a private home that would previously have been unknowable without physical intrusion. Therefore, the majority held, it is a surveillance, or a search for 4th Amendment purposes and presumptively unreasonable without a warrant.

Justice Stevens' dissent argued that there is "a distinction of constitutional magnitude between 'through-the-wall surveillance that gives the observer or listener direct access to information in a private area, on the one hand, and the thought processes used to draw inferences from information in the public domain, on the other hand."

Framed that way, the dissenters concluded that "the case before us merely involves indirect deductions from 'off-the-wall' surveillance, that is, observations of the exterior of the home. Those observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of petitioner's home but did not invade any constitutionally protected interest in privacy."

All that the infrared camera did in this case was passively measure heat emitted from the exterior surfaces of petitioner's home; all that those measurements showed were relative differences in emission levels, vaguely indicating that some areas of the roof and outside walls were warmer than others," Stevens wrote in dissent.

In fact, the dissenters claimed, "the ordinary use of the senses might enable a neighbor or passerby to notice the heat emanating from a building, particularly if it is vented, as was the case here. Additionally, any member of the public might notice that one part of a house is warmer than another part or a nearby building if, for example, rainwater evaporates or snow melts at different rates across its surfaces. Such use of the senses would not convert into an unreasonable search if, instead, an adjoining neighbor allowed an officer onto her property to verify her perceptions with a sensitive thermometer. Nor, in my view, does such observation become an unreasonable search if made from a distance with the aid of a device that merely discloses that the exterior of one house, or one area of the house, is much warmer than another. Nothing more occurred in this case."

In fact, Stevens wrote in dissent, it would be better if law enforcement were given a clear go-ahead to use thermal imaging, rather than a less definitive reading from the courts.

"Just as 'the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public,' ... so too public officials should not have to avert their senses or their equipment from detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the community. In my judgment, monitoring such emissions with 'sense-enhancing technology,' ... and drawing useful conclusions from such monitoring, is an entirely reasonable public service," Stevens wrote.

"Despite the Court's attempt to draw a line that is 'not only firm but also bright,' ... the contours of its new rule are uncertain because its protection apparently dissipates as soon as the relevant technology is 'in general public use,'" Stevens wrote. "Yet how much use is general public use is not even hinted at by the Court's opinion, which makes the somewhat doubtful assumption that the thermal imager used in this case does not satisfy that criterion. In any event, putting aside its lack of clarity, this criterion is somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available."