Pubdate: Mon, 18 Jun 2001
Source: San Jose Mercury News (CA)
Copyright: 2001 San Jose Mercury News
Contact:  http://www.sjmercury.com/
Details: http://www.mapinc.org/media/390
Author: George F. Will
Note: George F. Will is a columnist for the Washington Post.

SCALIA'S OPINION CONFOUNDS CRITICS

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, 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.

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, police 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.

Scalia 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 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, 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 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"? He 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." 
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. This decision should, but probably will not, cause 
these critics second, or perhaps first, thoughts.
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