Kyllo v. United States

Notable Items:

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• ... at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. [home belonging to petitioner Danny Kyllo]
• The scan of Kyllo's home took only a few minutes and was performed from the passenger seat of Agent Elliott's vehicle across the street from the front of the house and also from the street in back of the house.
• Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant ....
• A full recounting of the facts is available below

Procedural History:

• Petitioner was indicted ... entered a conditional guilty plea.
• The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging.
• District Court upheld the validity of the warrant that relied in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress.
• A divided Court of Appeals initially reversed, 140 F.3d 1249 (1998), but that opinion was withdrawn and the panel (after a change in composition) affirmed,
• ... no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only "amorphous 'hot spots' on the roof and exterior wall,"
• We granted certiorari

Rationale

Scalia Majority Opinion (Souter, Thomas, Ginsberg, Breyer)

• The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.
• ... in the case of the search of the interior of homes ... there is a ready criterion, ... of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable.
• We think that obtaining by sense enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman, 365 U. S., at 512, constitutes a search at least where (as here) the technology in question is not in general public use.
• This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.
• On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search.
• ... we hold the Thermovision imaging to have been an unlawful search, ....
• The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent with this opinion.
• A full description of the rationale is available below

?? Concurrane in part, dissent in part (??)

Stevens Dissent (Rehnquist, O'Connor, Kennedy)

Full Recounting of Facts

• [Part I: Facts and History]
• ... at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. [home belonging to petitioner Danny Kyllo]
• The scan of Kyllo's home took only a few minutes and was performed from the passenger seat of Agent Elliott's vehicle across the street from the front of the house and also from the street in back of the house.
• Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner's home, and the agents found an indoor growing operation involving more than 100 plants.
• Petitioner was indicted ... entered a conditional guilty plea.
• A list of the material facts is available above

Majority Full Argument

• [Part I: Facts and History]
• See Full Recounting of Facts
• The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging.
• On remand the District Court found that the Agema 210 ... "is a non-intrusive device which
  • emits no rays or beams and
  • shows a crude visual image of the heat being radiated from the outside of the house";
  • it "did not show any people or activity within the walls of the structure";
  • "[t]he device used cannot penetrate walls or windows to reveal conversations or human activities"; and
  • "[n]o intimate details of the home were observed."
• District Court upheld the validity of the warrant that relied in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress.
• A divided Court of Appeals initially reversed, 140 F.3d 1249 (1998), but that opinion was withdrawn and the panel (after a change in composition) affirmed,
• ... no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only "amorphous 'hot spots' on the roof and exterior wall,"
• [Part II: Existing Law]
• With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no. See Illinois v. Rodriguez, 497 U. S. 177, 181 (1990); Payton v. New York, 445 U. S. 573, 586 (1980).
• Visual surveillance was unquestionably lawful because" 'the eye cannot by the laws of England be guilty of a trespass.'" Boyd v. United States, 116 U. S. 616, 628 (1886)
• "[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares."
• In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States, 389 U. S. 347 (1967).
• As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.
• We have subsequently applied this principle to hold that a Fourth Amendment search does not occur-even when the explicitly protected location of a house is concerned-unless "the individual manifested a subjective expectation of privacy in the object of the challenged search," and "society [is] willing to recognize that expectation as reasonable." Ciraolo, supra, at 211
• We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much.
• [Part III: ]
• The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.
• ... in the case of the search of the interior of homes ... there is a ready criterion, ... of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable.
• We think that obtaining by sense enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman, 365 U. S., at 512, constitutes a search at least where (as here) the technology in question is not in general public use. [search definition changes as tech moves to general public use]
• This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.
• On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search.
• The Government maintains, however, that the thermal imaging must be upheld because it detected "only heat radiating from the external surface of the house," ....
• The dissent ... contending that there is a fundamental difference between what it calls “off-the-wall” observations and “through-the-wall surveillance.”
• But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house—and a satellite capable of scanning from many miles away would pick up only visible light emanating from a house.
• We rejected such a mechanical interpretation of the Fourth Amendment in Katz [Where?]
• The Government also contends that the thermal imaging was constitutional because it did not “detect private activities occurring in private areas,”
• ... intimate details because they were details of the home, just as was the detail of how warm—or even how relatively warm—Kyllo was heating his residence.
• [additional paragraphs arguing against the dissent.]
• ... we hold the Thermovision imaging to have been an unlawful search, ....
• The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent with this opinion.
• The core of the rationale is available above