Thermal Image



Scalia's Big Surprise

By Will Baker

The U.S. Supreme Court recently handed down an interesting decision relating to our Constitution’s Fourth Amendment privacy guarantee. It seems that, some time ago, Danny Lee Kyllo, of Florence, Oregon was convicted for illegally growing marijuana. Now many folks get busted for growing pot, but not many of them appeal the conviction all the way to the Supreme Court and win, and in the process, help us all to be a bit more secure in our own homes.

So how, you might ask, did a pot grower in Oregon manage this feat? Well, it seems that, after receiving a "tip" from an informant, a police officer measured the level of heat coming from Danny’s home by utilizing a thermal-imaging device. And based on the information provided by the imager, the officer concluded that he was growing marijuana. With this information in hand, the police obtained a search warrant and discovered over 100 pot plants growing inside his home.

However Mr. Kyllo argued that the use of this imaging device constituted an illegal search--since no warrant had been obtained prior to it being pointed by the police at the outside of his home. And based upon the court’s decision, they evidently agreed with him. But the court’s ruling did not concern just the specific circumstances regarding Mr. Kyllo’s arrest. Writing for the majority, Justice Antonin Scalia wrote: "The question we confront is what limits there are upon the power of technology to shrink the realm of guaranteed privacy." The court went on to lay out a very broad rule that would apply to all technologically sophisticated surveillance devices that might be utilized by law enforcement personnel. In short, the ruling states that if a device is "not in general public use," without a search warrant first being obtained, the police can not use it.

The court made it very clear that it intended to shield our homes, not only from unwarranted physical intrusion by police, but unwarranted technological intrusions as well. In addressing whether or not this line of privacy should speak only to physical intrusions the court said: "that would leave the homeowner at the mercy of advancing technology, including imaging technology that could discern all human activity in the home."

While I applaud the court’s decision, it does take me by surprise. I am concerned with what I perceive to be a gradual chipping away of our rights over the years. Yet this decision flies squarely in the face of my perception. But perhaps, most surprising of all was how the individual Justices ruled. This was a 5 to 4 decision, with liberal and conservative Justices appearing to be ruling out of character. And that is probably a good thing…

At any rate, it seems to me that we owe our thanks to that pot grower in Oregon. We all should be able to feel secure in the privacy of our own homes. Clearly, that is what the framers of our Constitution intended. And we also owe thanks and praise to the Supreme Court for a wise and judicious ruling. I am no fan of Justice Antonin Scalia. However I will give the man his due. For example, it comforts me to know that he and the other Justices in the majority do not want the police to be peeping while our thermal images relieve themselves in the bathroom.




 (Essay Collection)