Pubdate: Sun, 17 Jun 2001
Source: Tribune Review (PA)
Copyright: 2001 Tribune-Review Publishing Co.
Contact:  http://triblive.com/
Details: http://www.mapinc.org/media/460
Author: George Will

AGEMA THERMOVISION 210 VS. THE CONSTITUTION

WASHINGTON - 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 9th 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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