South Carolina Lawyer
Vol. 13, No. 3, Pg. 22.
New technology brings up old question: The Fourth Amendment and the issue of search Kyllo v. United States
22New technology brings up old question: The Fourth Amendment and the issue of search Kyllo v. United StatesBy Professor Richard SeamonWhat is a "search" for purposes of the Fourth Amendment? This question is as old as the Fourth Amendment's protection against unreasonable government searches. In Kyllo 7. United States, 121 S. Ct. 2038 (2001), the Court had to answer that question for a new form of government surveillance called thermal imaging.
To decide if the government's thermal imaging of a home constituted a search, the Court looked both to the past and the future. The result is a decision intended to protect the long-cherished privacy of the home in the 21st century. It remains to be seen if that intention will be realized.
24Some people use high-intensity lamps to grow African violets in their home; Danny Kyllo used them to grow marijuana in his. Suspecting as much, a federal agent parked across the street from Mr. Kyllo's home late one night in 1992 and scanned it with a thermal imager. As described by the Court, a thermal imager "detect[s] infrared radiation [and] * * converts the radiation into [visual] images based on relative warmth." Kyllo, 121 S. Ct. at 2041. The thermal imager used on Kyllo's house indicated that the roof over his garage and a side wall of his house were hot compared to neighboring homes. Based on this information and Mr. Kyllo's utility bills, federal agents got a warrant to search Mr. Kyllo's house. The search revealed an indoor-growing operation that involved more than 100 marijuana plants.
Mr. Kyllo was charged with manufacturing marijuana. He moved to suppress the evidence found in the search of his home. He argued that the warrant authorizing the search was invalid because it rested on evidence obtained from an unconstitutional search - namely, the thermal imaging of his house. Was the use of the thermal imager a search within the meaning of the Fourth Amendment? After the federal trial court denied Mr. Kyllo's suppression motion, Mr. Kyllo entered a conditional guilty plea, which preserved the Fourth Amendment issue for appeal.
The U.S. Supreme Court decided by a vote of five-to-four that the thermal imaging of Mr. Kyllo's home...