Pubdate: Sun, 17 Jun 2001
Source: Daily Gazette (NY)
Copyright: 2001 The Gazette Newspapers
Contact:  http://www.dailygazette.com/
Details: http://www.mapinc.org/media/105
Author: George Will

SCALIA'S SENSIBLE STRICT CONSTRUCTION

Danny Kyllo was not growing rhododendrons in his home on Rhododendron 
Drive in Florence, Ore., in 1992. He was growing marijuana, which 
when cultivated indoors requires high-intensity lamps that generate 
considerable heat and, in this instance, generated a Supreme Court 
case.

Last Monday's decision merits attention because the opinion for the 
closely divided (5-4) court was written by Justice Antonin Scalia. He 
is commonly, and not improperly, called a "strict constructionist." 
He describes himself as an "originalist," meaning that he construes 
the Constitution by reading the text as its words were used and 
understood at the time by those who wrote them.

The logic and structure of the document illuminates the original 
meaning of those words. And Scalia's originalism was no impediment to 
ruling that Kyllo's Fourth Amendment right to protection against 
unreasonable searches was violated by a technology never envisioned 
by the Constitution's authors. Dissenting from his civil libertarian 
opinion were three more-or-less conservative justices (Rehnquist, 
O'Connor and Kennedy) and the court's most liberal justice, Stevens.

Acting on information from informants and utility records, law 
enforcement officers used an Agema Thermovision 210 thermal imager to 
detect that the roof over Kyllo's garage and a side wall of his home 
were unusually hot. Using that evidence, they acquired a search 
warrant, found more than 100 marijuana plants and arrested Kyllo. He 
said the evidence was illegally obtained because the warrant was 
issued partly on the basis of the thermal imaging results, and the 
imaging itself constituted a search conducted without a warrant, in 
violation of the Fourth Amendment protection against unreasonable 
searches.

The amendment was written in the context of the English common law 
principle that "the eye cannot by the laws of England be guilty of a 
trespass." However, more than the law enforcement officers' eyes were 
involved in the scan of Kyllo's home that was conducted from the 
street and took only a few minutes. The question for the court, as 
Scalia posed it, was: How much technological enhancement of ordinary 
perception from such a vantage point, if any, is too much?

Scalia, joined by Souter, Thomas, Ginsburg and Breyer, stressed that 
the thermal imaging technology used is "a device that is not in 
general public use" and a homeowner has a reasonable expectation of 
privacy for activities that could not be detected without 
technologically enhanced eavesdropping. But, then, such eavesdropping 
is, in a sense, a contradiction in terms.

There often is wisdom in the logic of common language, so notice the 
derivation of the word that would commonly be used to describe what 
the government was doing: "eavesdropping." The late Justice Hugo 
Black noted that people surreptitiously seeking information used to 
lurk in the "eavesdrop," in the shadow under a building's eave. This 
may not have been nice, but neither was it invasive. It was the 
equivalent of surveillance by the "naked eye" - in this example, the 
officers' eyes unassisted by any sense-enhancing technology.

Privacy is neither an easily identifiable thing, like the Grand 
Canyon, nor an absolute value. However, the concern of the 
Constitution's Framers for protecting privacy began by assuming that 
privacy of the home is the most precious and most easily defined 
sort. In Kyllo's case, Scalia offered this "originalist" criterion: 
What preserves the "degree of privacy against government that existed 
when the Fourth Amendment was adopted"? Scalia and four colleagues 
concluded, "On the basis of this criterion, the information obtained 
by the thermal imager in this case was the product of a search."

Stevens, writing for the three other dissenters, sided with law 
enforcement, accusing the majority of abandoning "judicial restraint" 
as it overturned the Ninth Circuit, the home of liberal judicial 
activism, which had ruled against Kyllo. Stevens argued that searches 
of "property in plain view" are presumptively reasonable. Scalia 
responded that it is "simply inaccurate" to say, as the dissenters 
did, that the thermal imaging did not obtain information about the 
home's interior, the most protected realm of intimacy.

Congress is about to step onto the dark and bloody ground of the 
judicial confirmation process. Jurisprudential theories - "strict 
construction," "originalism," the Constitution as a "living document" 
that "evolves" to meet "new problems" - will be bandied. Some 
senatorial and other critics of President Bush's judicial nominees 
will portray those nominees as too much like Scalia, and hence too 
strict in their "originalist" constitutional construction to 
understand the applicability of the document to modern conditions. 
The decision in the Kyllo case should, but probably will not, cause 
these critics second, or perhaps first, thoughts.
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