What were they smoking?: the Supreme Court's latest step in a long, strange trip through the Fourth Amendment.

• Author: McKenzie, Daniel
• Position: Supreme Court Review

Kyllo v. United States, 533 U.S. 27 (2001).

1. INTRODUCTION

   In Kyllo v. United States, (1) the United States Supreme Court addressed whether the use of a thermal imager, which detects the patterns of heat escaping from a house, constitutes a search and requires a warrant under the Fourth Amendment. (2) The Court held that "[w]here, 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 unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." (3) The Court based its holding on its belief that the technology employed gave investigators information about the inside of Kyllo's home that they would not otherwise have been able to get without a physical invasion, (4) and that the technology used is not in wide use. (5)

   This note examines the history of' the Court's approach to technology and the Fourth Amendment. Physical encroachment without a warrant is a clear violation of the Fourth Amendment. (6) As technology has advanced, the government has been able to gain information that it previously would not have been able to obtain without physically encroaching on the defendant's property. Because of the government's constantly advancing technological abilities, the Court has struggled to provide a clear answer to what is and what is not allowed under the Fourth Amendment. This note argues that the Court wrongly decided Kyllo v. United States based on its fear about what future technology will allow the government to do and out of frustration with its own confused past regarding this issue, which is filled with numerous cases that probably should have been decided differently. Instead, the Court should have confined its holding to the technology that was before it and established a test that would have been easy to apply in future cases as technology develops.

2. BACKGROUND

   1. THE ORIGINAL PURPOSE OF THE FOURTH AMENDMENT

      The Fourth Amendment to the United States Constitution states:

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (7) The Fourth Amendment was the direct result of the colonists' experience with the British writs of assistance. (8) "In order to enforce the revenue laws, English authorities made use of writs of assistance ... authorizing the bearer to enter any house or other place to search for and seize 'prohibited and uncustomed' goods, and commanding all subjects to assist in these endeavors." (9) Once issued, the writs lasted for "the lifetime of the sovereign and six months thereafter." (10) The insistence on freedom from the intrusions of unreasonable "searches and seizures" came late to the colonies. (11) However, it was deeply rooted in "a maxim much celebrated in England" that "[e]very man's house is his castle." (12)

      The Fourth Amendment only applies to "searches" and "seizures." (13) In order for a defendant to have evidence suppressed based on a violation of the Fourth Amendment, the defendant must show that either a search or seizure has occurred. (14) Under the common law, there was no doubt about what constituted a search: physical invasion of a property interest. (15) As will be seen below, a physical invasion of the home was the factor that the Court depended on to determine whether there was a search for Fourth Amendment purposes up until 1967. (16) Then, in Katz v. United States, (17) the Court issued an opinion that appeared to greatly enhance Fourth Amendment protections as it completely changed how the use of technology in investigations was analyzed. Instead of basing its analysis on whether there was a physical encroachment of a constitutionally protected area, the Katz holding was based on whether the defendant had a reasonable expectation of privacy. (18) However, as will be demonstrated below, the practical effect of this opinion appears to have been substantially less than what it was probably assumed it would be at the time of its issuing.

   2. PRE-KATZ FOURTH AMENDMENT CASES INVOLVING THE USE OF TECHNOLOGY (19)

      One of the earliest cases to raise the issue of the Fourth Amendment as it applied to an investigation that did not involve physical trespass onto the defendant's property was Olmstead v. United States. (20) The issue in Olmstead was whether evidence collected through phone taps that had been installed without trespass on the defendant's property violated the Fourth Amendment. (21) In holding that a wiretap was not a violation of the Fourth Amendment, the Court stated that the well-known purpose of the Fourth Amendment "was to prevent the use of governmental force to search a man's house, his person, his papers and his effects; and to prevent their seizure against his will." (22) The Court limited the Fourth Amendment protections to searches involving "material things." (23) The Court also noted that a person installs a telephone with the purpose of projecting his voice outside of his home, implying that if this had not been the case, perhaps the defendant would have prevailed. (24)

      Justice Brandeis's dissent in Olmstead bears a strong resemblance to the line of reasoning that the Court has adopted in Kyllo. (25) He argued that, when applying the Constitution, it is important to not only consider what has been, but what may be. (26) When the Fourth Amendment was adopted, the ways for the government to invade someone's privacy were necessarily simple. (27) As technology advances, however, "[s]ubtler and far-reaching means of invading privacy" will be developed. (28)

      Fourteen years after Olmstead, the Supreme Court decided Goldman v. United States. (29) Goldman allowed investigators further latitude in what they could do without violating the Fourth Amendment. In Goldman, federal investigators had placed against the wall of an adjoining office a microphone that was so sensitive that it could pick up conversations taking place in the office on the other side of the wall. (30) As in Olmstead, the Court held that eavesdropping was not a violation of the Fourth Amendment. It then went further and removed the only limitation on non-physical searches that it had appeared to erect in Olmstead--that the police were limited to monitoring information that the defendant intentionally projected beyond the walls of his house. (31) The petitioner argued that this case should be distinguished from Olmstead because the defendant here was not intentionally projecting his voice beyond the confines of the office that was being surveyed. (32) The Court rejected this argument, saying only that "the distinction is too nice for practical application of the Constitutional guarantee, and no reasonable or logical distinction can be drawn between what federal agents did in the present case and state officers did in the Olmstead case." (33)

      In its next major case involving the Fourth Amendment and technology, Silverman v. United States, (34) the Court did role in favor of the defendant, holding that the attachment of a microphone to a heating duct in the defendant's house violated the Fourth Amendment. (35) However, its reasoning did not expand the protections available to the subjects of police investigations as it rested its decision on the fact that the police had physically encroached on the defendant's property to gather information. (36) The Court explicitly distinguished this case from Goldman, stating that, unlike in Goldman, the police accomplished their eavesdropping "by means of an unauthorized physical encroachment within a constitutionally protected area." (37) At this point, it was clear that there were few, if any, limits on what government agents could do if they could avoid a physical encroachment on the defendant's property.

   3. KATZ V. UNITED STATES: A TURNING POINT FOR TECHNOLOGY AND FOURTH AMENDMENT LAW?

      What was originally thought to be a turning point for Fourth Amendment law came in 1967 when the Court decided Katz v. United States. (38) Up until this time, the Court had only found searches to violate the Fourth Amendment when a physical encroachment on the defendant's property had occurred. (39) In Katz, the Court explicitly announced that physical encroachment was no longer a deciding factor in determining whether a Fourth Amendment search had occurred. (40) FBI agents had attached a microphone to the outside of a phone booth that the agents believed the defendant was using to place illegal bets. (41) The Court dramatically overruled its previous cases, stating that the Fourth Amendment "protects people, not places." (42) It further stated that, while physical penetration of a protected area was once thought important to Fourth Amendment analysis, it had expressly held that the Fourth Amendment applies not only to cases where tangible property has been invaded, but also to statements that have been recorded without any physical trespass. (43)

      The most enduring portion of the Katz decision came not from the majority opinion, but from a concurring opinion by Justice Harlan. In his opinion, Justice Harlan outlined a two-part test that he believed the Court was relying on to determine whether there was a violation of the Fourth Amendment. (44) The first part of the test is to determine whether the subject of the search exhibits a subjective expectation of privacy. (45) If he does, the Court must then decide whether that expectation of privacy is one that society would find reasonable. (46) This two-part test has been employed regularly in cases since Katz, particularly those that involve the use of technology by the investigators. (47)

      Perhaps not surprisingly, there was a dissent in the Katz case objecting to the application of the Fourth...