Pubdate: Sun, 17 Jun 2001 Source: Chicago Sun-Times (IL) Copyright: 2001 The Sun-Times Co. Contact: http://www.suntimes.com/ Details: http://www.mapinc.org/media/81 Author: George Will TECHNOLOGY CAN'T BEAT THE CONSTITUTION 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 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 calls himself an "originalist," meaning that he construes the Constitution by reading the text as its words were used and understood by those who wrote them. The logic and structure of the document illuminates the original meaning of the 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 officers' eyes were involved in the scan of Kyllo's home that was conducted from the street. 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. 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 technology. 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. 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 judicial confirmation. President Bush's judicial nominees may be portrayed as too much like Scalia. The decision in the Kyllo case should, but probably will not, cause these critics second thoughts. - --- MAP posted-by: Terry Liittschwager