Kyllo v. United States

• Date: 01 May 2003
• DOI: 10.1177/1043986203251618
• Published date: 01 May 2003
• Subject Matter: Article

10.1177/1043986203251618ARTICLEJournal of Contemporary Criminal Justice / May 2003Worrall / KYLLO v. UNITED STATES

Kyllo v. United States

Why the Supreme Court Has Not

Laid the Thermal-Imaging Debate to Rest

John L. Worrall

California State University, San Bernardino

In Kyllo v.United States, the Supreme Court handed down an apparently bright-line rule stating

that governmentuse of devices not in “general public use” (e.g., thermal imagers), which can be

used to view the “details of a home,” constitutes a search within the meaning of the Fourth

Amendment. This article arguesthat the Court’s decision is flawed for several reasons: (a) There

is no agreement over the “general public use” standard, (b) there is no agreement overwhat can

be considered “details of the home,”(c) the Court failed to exercise judicial restraint, (d) the Court

restricted law enforcement officials’ability to draw “inferences” about criminal activity, and per-

haps most important, (e) the decision does not place restrictions on the use of thermal imagers for

other law enforcement purposes besides the direct procurement of criminal evidence.

Keywords: searchand seizures; Fourth Amendment; thermal imagers; technology; reasonable

expectation of privacy

In 1991, a special agent with the Department of Interior, Bureau of Land

Management, began to suspect that Danny Kyllo was cultivating mari-

juana in his Florence, Oregon, triplex. To confirm his suspicions, the agent

enlisted the help of the Oregon National Guard and used an Agema

Thermovision to “scan” the front and back of Kyllo’sbuilding. The scan was

conducted from a vehicle parked on a public street.

The Agema scan indicated that the roof of Kyllo’sgarage and a side wall of

his residence were radiating more heat than neighboring homes. Based on the

scan, tips from informants, evidence that Kyllo’s wife had previously been

arrested for drug offenses, and subpoenaed utility bills, a search warrant was

issued. The warrant was executed and agents found 100 marijuana plants in

205

Journal of Contemporary Criminal Justice, Vol. 19 No. 2, May 2003 205-223

DOI: 10.1177/1043986203251618

© 2003 Sage Publications

Kyllo’shome. Kyllo was indicted and then convicted in federal court follow-

ing a plea agreement.

Kyllo appealed his conviction to the U.S. Court of Appeals for the Ninth

Circuit, but the court remanded the case for a hearing on the intrusiveness of

thermal-imager scans. On remand, the district court concluded that a thermal

imager “is a nonintrusive device which emits no rays or beams and shows a

crude visual image of the heat being radiated from the outside of the house”

and that “the device cannot and did not showany people or activity within the

walls of the structure” (United States v. Kyllo, 1996, pp. 3-4).

Not satisfied with this holding, Kyllo appealed to the Ninth Circuit again.

This time the appeals court decided the use of the thermal imager constituted

a search within the meaning of the Fourth Amendment. Accordingly, the

Ninth Circuit remanded the case back to the district court to determine

whether there was probable cause for the search warrant absent evidence

obtained via the thermal scan. However,the government moved for a rehear-

ing of the appeal, and the Ninth Circuit decided once again that thermal imag-

ing did not constitute a search. Therefore, it withdrew its previous opinion.

This convoluted case progression lasted nearly 10 years. In 2001, the

Supreme Court finally granted certiorari and reversed the Ninth Circuit

Court’s decision, holding,

Where, as here, the government uses a device that is not in general public

use, to explore details of the home that would previously have been

unknowablewithout physical intrusion, the surveillance is a “search” and is

presumptively unreasonable without a warrant. (Kyllo v. United States,

2001, p. 2046)

It would appear that the Supreme Court handed downa clear, “bright-line”

rule in the Kyllo (2001) decision. Nothing could be further from the truth,

however.This article argues that the Court’s“general public use” and “details

of the home” language sends a confusing message to lower courts, making it

difficult to decide on the constitutionality of thermal imaging. It is also

argued that the Supreme Court failed to exercise judicial restraint in its deci-

sion; instead of focusing on the capabilities of the Agema Thermovision, it

sought to hand down a bright-line rule applicable to all technological devices

capable of discoveringinformation concerning what is taking place in private

residences.

These criticisms notwithstanding, the Supreme Court’sbright-line rule can

easily be ignored by any lawenforcement official; neither the Fourth Amend-

ment nor any case law stemming from it prohibits government actors from

engaging in searches—even with thermal imagers—that do not result in evi-

dence for criminal prosecution. Section 1983 civil liability is a possible rem-

206 Journal of Contemporary Criminal Justice / May 2003