At 3:20 a.m. one January morning in 1992, an Oregon national guardsman assisting in a federal investigation sat in the passenger seat of a parked car and watched an apartment triplex under suspicion for drug activity.
Thanks to cutting-edge technology originally designed for the military, the guardsman relied on more than the naked eye to watch the property.
Wielding a thermal imaging device, a camera-like gadget that identifies infrared radiation, the agent detected an unusual amount of heat being lost from an apartment occupied by Danny Lee Kyllo. The device, called an Agema Thermovision 210, scanned Kyllo's home and recorded white blotches along the roofline and along one wall of the garage, indicating excessive heat in those areas.
Eleven days later, law enforcement agents burst into Kyllo's Florence, Ore., home with a search warrant and found more than 100 marijuana plants growing in the attic along with heat lamps and other drug paraphernalia.
Today, in a case that pits technology against privacy rights, the U.S. Supreme Court considers whether the warrantless use of the thermal imaging device constituted an unlawful search under the 4th Amendment of the Constitution. How the court rules in this case could shape the guidelines governing how law enforcement officials use technology to conduct searches.
An Exploitative Technology?
Based on the evidence seized during the search, Kyllo was indicted for manufacturing marijuana and was sentenced to 63 months in prison. But Kyllo appealed, arguing the police should have had a warrant before they used the thermal imager.
The imaging device intruded into activities within his home, Kyllo argues, where he has an expectation of privacy. Just because technology exists to detect what people are doing inside their homes does not mean police have the right to use it without proper constitutional protections of personal privacy, his attorney argues.
"Technology that exploits invisible, sub-sensory phenomena ultimately fails to respect the traditional boundaries of society, and therefore leaves the population defenseless against such surveillance," Kyllo's attorney Kenneth Lerner wrote in court papers.
In today's court session, Justice Antonin Scalia questioned Lerner's logic. "Why don't your reasonable expectations of privacy include technology? ... You know there are such things as thermal imagers," Scalia asked. "Why do we have to assume we live in a world without technology?"
"The burden is really improperly placed on the citizen to figure out what technology the government may come up with," Lerner replied.
Gov't.: This Is No X-Ray
Using a different interpretation of the 4th Amendment, the government disputes Kyllo's assertion that scanning a home with a thermal imaging device in itself constitutes a search requiring a warrant.
In court documents, government attorneys compare the thermal imaging scan to a ramped up version of an officer merely watching someone's home with the naked eye. The scan does not penetrate the house nor reveal private activities, but rather observes an area of the home exposed to the public — in this case, the roof and exterior walls.
During today's session, a government lawyer played down the intrusive nature of the heat-seeking scan. "If the thermal imager functioned like an X-ray machine ... then we don't dispute that it would be a search," Deputy Solicitor General Michael Dreeben said. "We are not learning what activities are going on or where they are going on in that house."
But Justice Stephen G. Breyer seemed dubious of the government's argument. Bird watchers carry binoculars and Boy Scouts wield flashlights, he said, but "who has a heat thermal device? Nobody, except a few."
A Two-Part Test
A district court judge in Portland, Ore., ruled against Kyllo. On appeal, a panel of the 9th Circuit Court of Appeals at first overturned the lower court ruling but later ruled against Kyllo, saying the search did not require a warrant and was constitutional.
In its split ruling, a majority of the appellate court explained it used a two-part test to determine whether the 4th Amendment had been violated. First, the court evaluated whether Kyllo showed an "actual subjective expectation of privacy" and then whether this expectation is one society recognizes as "objectively reasonable."
"Whatever the 'Star Wars' capabilities this technology may possess in the abstract, the thermal imaging device employed here intruded into nothing," reads the majority opinion.
In the past, the high court has allowed law enforcement officers to fly over a person's property or illuminate a person's car with a flashlight, all without warrants. But the court has required warrants when officials put microphones inside homes or place surveillance devices on public telephones.
The court should rule in the case, Kyllo vs. U.S., by summer.