Kyllo v. United States:   
United States Supreme Court, 2001. 

Statement of the Case:

      The US is prosecuting marijuana grower, Kyllo, for growing marijuana but obtained their main evidence, a thermal image picture showing heating discrepancies consistent with marijuana growing, without a warrant.

Procedure:

      ? tried to suppress the evidence as not comporting with the 4^th Amendment.  The Appellate Court remanded to determine whether thermal imaging was too intrusive.  District Court found it was not, and the Appellate Court eventually affirmed.

Facts:

      US Agent was suspicious that Kyllo was growing weed in his house.  From the public street, he took a thermal imaging picture and decided the differences in temperature, emanating from the roof, was definitely marijuana growing.  He got a warrant and found over 100 plants.

Issue:

      Whether the use of a thermal-imaging camera, a sensory-enhancement device, violates the 4^th Amendment protection against unreasonable searches when the camera only pictured heat escaping into the public domain, but the technology was not yet in general public use.

Procedural Result:

      Judgment reversed for ?.

Holding:

      The use of a thermal-imaging camera, a sensory-enhancement device, violates the 4^th Amendment protection against unreasonable searches when the camera pictured heat escaping into the public domain, but the technology was not yet in general public use.

Reasoning:

Rules:

• Visual observation is no “search” at all.
• 4^th Amendment search occurs when the government violates (1) a subjective expectation of privacy (2) that society recognizes as reasonable.
• Use of a pen register and aerial surveillance equipment, even enhanced equipment used to photograph an industrial complex, are not searches according to the 4^th Amendment.

Reasoning:

• RULE:  Obtaining by sense-enhancing technology any information regarding the interior of the home that could not have been obtained without physical intrusion into a constitutionally protected area constitutes a search – at least where the technology in question is not in general public use.
• BUT the only heat tested was that which had emanated from the house.
• Since a powerful microphone could pick up the sound emanating from outside and across the street, this case must come out this was as a preemptive measure against those other types of technological intrusions also.
• Invading the home even a fraction of an inch is unacceptable.

Dissent:

• Inferences drawn from the public domain and “through the wall surveillance” are completely different and should be treated as so.
• This is unlike a technological x-ray, which is really through the wall.
• Use of the senses, like seeing snow melt faster on one side of the house, is not a search, so why would measuring the heat emitted.
• The majority opinion is stupid since it only refers to technology not in public use.

Additional Points:

• Variables Considered in Deciding Reasonableness of Privacy Expectations:
  • Voluntary disclosure by a 3^rd party,
  • Failure to take precautions to safeguard one’s privacy,
  • Public exposure of one’s activities,
  • Whether compromising the privacy requirement would compromise nothing that society has any interest in protecting.
• Rule:  When a package is opened by a private party and the government is notified of its contents, it is not a search to reopen it, since nothing new is being looked for.
• Rule:  Exercising a field test on something is also not a search, since it is just to verify what the substance is.
• QUESTION:  Majority is stupid.  How is this different than if I smoked weed at my house and a cop smelled it?  This case must turn ONLY on that the technology is not available to the general public.