Pubdate: Sun, 17 Jun 2001
Source: Union Leader (NH)
Copyright: 2001 The Union Leader Corp.
Contact:  http://www.theunionleader.com/
Details: http://www.mapinc.org/media/761
Author: George Will

JUDICIAL IDENTITIES FRAME A DECISION

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 (William H. Rehnquist, Sandra Day 
O'Connor and Anthony M. Kennedy) and the court's most liberal justice, John 
Paul 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 David H. Souter, Clarence Thomas, Ruth Bader Ginsburg 
and Stephen 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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