Kyllo v. United States: Something Old, Nothing New; Mostly Borrowed, What To Do?

• Author: Stephen A. LaFleur
• Pages: 929-952

Page 929

I would like to thank Professor John S. Baker, Jr. for his advice and guidance in developing this note, as well as Professor Paul R. Baier and Professor James W. Bowers, our scholarly writing seminar instructors. These professors have taught me to look beyond the casebook to find the law. I also want to thank my wife, Dr. Dianne LaFleur and our six children for giving me the opportunity to pursue a second career in the law. Finally, I must mention Mrs. Bertha Messer who has helped Dianne to look after the children while I spend the long hours that law school demands.

"Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right 'to be let alone.'"¹ Sounds like the lament of a twenty-first century citizen, concerned over the many modern technological marvels used, for better or worse, by Big Brother² to cast a watchful eye. The contemporary tone of this sentiment, however, belies its origins in a Harvard Law Review article written in 1890 by Samuel D. Warren and the future Supreme Court Justice Louis D. Brandeis. The Industrial Revolution and the technological advances of the late nineteenth century were changing society in generally positive ways, but with a dark side that threatened the tranquility of life.

Now, more than one hundred years later, advances in electronics and miniaturization are once again changing our daily lives. The current information revolution rivals the Industrial Revolution's impact on society. Once more, change threatens the tranquility of life. However today, the threats are more insidious, with magical marvels of technology making walls transparent,³ penetrating clothing to expose the nude body,⁴ and turning darkness into daylight.⁵ One of these new abilities used to enhance human sensory Page 930 capacity was tested by the Supreme Court in Kyllo v. United States⁶and found to be a search because law enforcement officers were deemed to "look" inside a home to find drug cultivation activity.

In Kyllo, law enforcement officers used a thermal imaging device, without a warrant, to view the amount of heat radiating from the surface of a house. The equipment made the pattern of heat radiation from the roof visible in the form of a video picture showing a hot spot. Officers inferred that grow lights were being used for cultivation of marijuana from that information. The thermal pictures and electrical utility statements showing above normal power consumption at that house provided probable cause for issuance of a search warrant. When the warrant was executed, officers performed a physical search of the premises and found a marijuana cultivation operation.⁷

The Supreme Court's decision in Kyllo is fully consistent with existing Fourth Amendment jurisprudence regarding searches using enhanced surveillance techniques, relying on an established line of Fourth Amendment cases. Essentially every element of the decision appears in one of the cases that traces its roots back to Katz v. United States,⁸ a turning point in Fourth Amendment electronic search law. Kyllo clarified that a home enjoys an increased level of protection from government intrusion and that governmental use of tools that disclose information about the inside of a home is considered to be a search under the Fourth Amendment.⁹ However, the Court's reference to the fact that the device used was not in "general public use," a distinction drawn from dicta in California v. Ciraolo¹⁰ and Dow Chemical Company v. United States,¹¹ raises some interesting questions about the surveillance tools themselves, and how they are critical to the determination of whether a search has occurred. The ten years between Danny Kyllo's arrest and the Court's decision have seen the thermal imaging technology become more widely available and possibly fitting within the meaning of the "general public use"¹²referenced in Kyllo's holding. Thus, the Kyllo decision leaves an Page 931 impression that when a thermal scanner is in "general public use," its use by law enforcement to observe a house might not constitute a search.¹³

Is there a message in that aspect of the holding that should prompt us to ask whether the Constitution provides adequate protections to the public, or should legislative measures be taken to ensure that the Fourth Amendment protections of individual privacy are not continually eroded by technological advances? Will the Constitution allow the Legislature to restrict one individual liberty (First Amendment speech) in order to protect another (privacy)?¹⁴

Part I of this case note presents the history of Kyllo. The line of enhanced "looking" jurisprudence is traced in Part II along with the Court's parallel development of eavesdropping and wiretap law. Part III examines the Kyllo decision to determine whether it advanced the protections of the Fourth Amendment with respect to modern surveillance techniques and what the privacy implications of the decision are. In Part IV the federal wiretap statutes are analyzed to see if they might be construed to include enhanced "looking"¹⁵ and addresses the need to extend these statutes expressly to include restrictions on enhanced looking as well as listening techniques. Finally, Part V briefly notes a recent Supreme Court decision that may be an impediment to statutory protection.

I Kyllo

In 1991, an agent of the U.S. Department of the Interior became suspicious that Danny Lee Kyllo was growing marijuana in his home. Knowing that indoor cultivation of marijuana required high intensity grow lights that produce significant amounts of heat, the officer used a thermal imaging device¹⁶ to observe Kyllo's home, one unit of a triplex in Florence, Oregon. The scans confirmed that the attic area of Kyllo's unit was emitting much more heat than similar adjacent units and the agent inferred that grow lights were probably in use in Page 932 the attic. Based on tips from informants, Kyllo's larger than normal electric bill, and the thermal imaging results, the agent obtained a search warrant and confirmed that Kyllo was growing marijuana in his attic.

At trial, Kyllo moved to suppress the evidence seized from his home as being obtained in violation of the Fourth Amendment. The motion was denied. He then entered a conditional guilty plea and appealed the court's decision to allow the thermal imaging evidence. The Ninth Circuit Court of Appeals remanded the case to the district court for an evidentiary hearing. The district court found that since the thermal imager "is a non-intrusive device," "did not show any people or activity within the wall of the structure," and "no intimate details of the home were observed," its use did not constitute a search.¹⁷ The district court upheld the validity of the warrant and reaffirmed its denial of the motion to suppress the thermal imager evidence. The court of appeals then held that Kyllo showed no expectation of privacy because he made no effort to conceal the heat radiating from his house.¹⁸ Even if Mr. Kyllo had taken measures to conceal the heat emissions, the court continued, he could have no objectively reasonable expectation of privacy because the thermal imaging device "did not expose any intimate details of Kyllo's life."¹⁹On application by Kyllo, the Supreme Court granted certiorari to review the question of whether the use of a thermal imaging device to examine a home was a search within the meaning of the Fourth Amendment.

II Fourth Amendment Search Jurisprudence

A The Fourth Amendment

The Fourth Amendment to the Constitution is uniquely American in its statement of a right based on the experience of the colonists.²⁰While it does have an English heritage regarding a man's home as being his castle,²¹ the real impetus came from the colonists' disdain for writs of assistance that empowered agents of the King to enter anyone's home in search of contraband at any time. Acting on those Page 933 concerns, the framers worded the Fourth Amendment²² to require a warrant that specifically identified the place to be searched, the items to be seized, and justification by a showing of probable cause that the objects of the search would be located in the place to be searched.²³

The Fourth Amendment is only applicable when the government executes a search.²⁴ A warrant based upon a showing of probable cause to believe that particular things will be found is generally required for the search to be valid.²⁵ When the Bill of Rights was adopted, a search required physical entry into the place to be searched, a physical reality until the advent of technologies that made it possible to virtually breach the walls of a structure such as a home. The Supreme Court first considered this new phenomenon in Olmstead v. United States,²⁶ a wiretap case.

B Setting The Stage: Olmstead V. United States

Olmstead was a 1928 case concerned with the tapping of telephone wires exiting a private residence occupied by bootleggers.²⁷The Court found that the tapping of the telephone wires in no way intruded into the sanctity of the home, and that the wires themselves could not be considered an extension of the home.²⁸ The Court also refused to draw an analogy to the protection afforded to mail because mail plainly qualified as papers under the Fourth Amendment, and the more abstract electric impulses that carried the conversation were certainly not papers.²⁹...