Supreme Court Dispatches

Spot Pot Hot Shot

Thanks to the Agema Thermovision 210 Thermal Imaging Device, the men in black helicopters were able to see every joule of heat you and your valentine produced while getting busy last week.

The Oregon National Guard used that device—and an astronomical utility bill—to deduce that Danny Lee Kyllo might be cultivating marijuana with grow lights in his Florence, Ore., home in 1992. (Alas, it didn’t reveal anyone in the household getting busy.) Based on the thermal imager’s discovery of a pattern of heat loss against one wall and the garage, the police obtained a search warrant of the Kyllo premises. The question for the court is whether the police should have gotten a search warrant first before they ran the thermal scanner.

Here’s the quick-and-dirty on police searches under the Fourth Amendment: People have a reasonable expectation of privacy in their own homes. The state needs a warrant to intrude on that privacy. Unless you’re committing homosexual sodomy in Georgia, you’re entitled to privacy from governmental intrusion in your bedroom. Your right to privacy within your own home ebbs somewhat in front of open windows, however, and it stops when your garbage hits the curb. In the vast Pushmepullyou of privacy law, dog-sniffs of your person have been deemed OK, wiretaps require warrants, while aerial photography of your property is OK. Today’s case involves more working out of the details.

Sadly, while more sophisticated thermal imagers can indeed pick up the heat from bodies “commingling,” as it’s euphemized, the whole fruitful line of inquiry as to whether one has an expectation of privacy while getting busy is nipped in the bud today. Justices Scalia and Kennedy manage to persuade the court that its only task is to determine the constitutionality of this scan and not the Fourth Amendment consequences of thermal imagers in general.

Since Kyllo v. United States involves the tension between sophisticated surveillance equipment and the Fourth Amendment’s privacy protections, I ordered a pair of those plastic X-ray glasses from the back of an Archie comic last week. With virtually unlimited power to see what is happening under the judicial robes, a whole new world is revealed this morning.

Kenneth Lerner is arguing on behalf of Kyllo, who was sentenced to 63 months in prison for manufacturing marijuana. After this case made many trips back and forth between the 9th Circuit and the district court, the panel ruled that thermal imaging of a home absent a warrant doesn’t violate the Fourth Amendment. Lerner opens by explaining that illegal searches of the home are “the chief evil the Fourth Amendment was designed to protect against.” Justice Souter (wearing a hair shirt under his robe) asks whether a video in evidence, showing people moving around the interior of a home, is the thermal scan in question today. Chief Justice Rehnquist asks whether the district court didn’t already give full consideration to that tape, but Justice Ginsburg cuts Lerner off midreply with another question. Rehnquist turns to her and snaps, “I think he’s answering my question.” Ginsburg is deflated for the rest of the argument (this despite the fact that she’s sporting a fabulous Victoria’s Secret matched set in a snakeskin print).

As is clear from the above ramble through privacy law, one problem underlying this case is that it involves death by a million analogies. The result turns on whether thermal imaging is more like putting a bug on the outside of a pay phone to hear what the average policeman’s ear cannot detect (a “search” proscribed in Katz v. United States) or more like using police dogs to sniff what the human nose can’t detect (a search permitted under United States v. Place). If you need to believe there are principled, jurisprudential reasons for prohibiting phone bugs but allowing dog-sniffs, might I offer a unifying constitutional theory: The Fourth Amendment would bar Jamie Summers from using her bionic ear, but not Max the bionic dog from using his supernose. Leaving us to decide today whether Steve Austin’s bionic eye can be used without a warrant.

Unfortunately the whole day degenerates into a game of “Distinguish This!” with Scalia (blue Superman tights under the robe) asking Lerner how thermal imaging differs from simple police observation that snow melts faster off drug houses than ordinary homes. Ginsburg wonders what you can determine from thermal imagery that you can’t find out from legally obtained utility bills. Lerner replies that utility bills “vary depending, frankly, on how many women live in the house,” due, he observes, to the fairer sex’s unfortunate tendency to shower and do laundry. In other words, utility bills provide information that’s too general to support a search warrant, whereas thermal imaging distinguishes between grow lights over the pot plants and the George Foreman grill. In other words, if you’re growing pot in your basement and don’t want it reflected in your utility bills, either lose the missus or stop showering.

Justice O’Connor (nylon slip, J.C. Penney) asks how dog-sniffs can be OK if they also enhance human smell, and Scalia asks if a policeman with 10/10 vision is allowed to look in your windows.

“10/10 vision?” replies Lerner.

“I’m assuming that’s better than 20/20.”

Justice Stevens asks if this entire case simply revolves around the sophistication of thermal-imaging equipment. Under his robe, he is wearing those pajamas Max wore in Where the Wild Things Are just before the wild rumpus starts. Then he confuses everyone by asking whether cops could rent the house next to Kyllo’s, tie thermometers to “long poles,” and track the temperature that way. Lerner says thermometers, watches, and “regular” devices are OK.

Souter, exasperated, wonders whether the day will come when “every schoolchild has a $5 thermal imager,” and then there won’t be a constitutional violation. I’d guess that even using the Catamount Radiance HSX 3-5 micron IR Camera (prices start at $71,837) you’d get a flat-line off Justice Souter. He does get Lerner to admit that the technological sophistication of thermal imagery is probably not the best way to distinguish the case from phone-tap cases. At which point, Rehnquist (who under his robe is sporting another robe, with more stripes on the sleeves) and Scalia take turns plying Lerner with questions about police use of flashlights.

Michael Dreeben from the solicitor general’s office argues on behalf of the law-enforcement community, arguing that thermal imagers don’t monitor objects or activity; they just measure “lost heat.” He differentiates the Katz phone-bugging case by explaining that no one is capturing “words spoken in a private place” but rather, “heat generated by the use of power.” Souter wonders whether “if someone wants to spend his time lying under sunlamps, isn’t that his own business?”

Then Justice Breyer—reminding us that there is indeed a test for illegal searches under the Fourth Amendment—asks how someone can have a “reasonable expectation of privacy” from a technology no one has even heard of. “Every bird-watcher has binoculars … every Boy Scout has a flashlight. Who has a heat thermal device?”

Breyer wears black bikini briefs, and here’s how I know: He continues on, “What I’m doing in my bathroom. … I happen to like the sauna, I turn on every shower.”

“That would steam up the windows,” crows Dreeben.

“I don’t have windows. It’s all modern Finnish wood. … I usually spend three hours a day in my Finnish sauna. I don’t want people to know that. People think I’m working.” Stephen Breyer. The Hugh Hefner of the federal bench.

Scalia, Souter, Dreeben, and Kennedy engage in a long colloquy about whether it’s better or worse that thermal imagers allow police to draw better inferences about the activities inside a home, without providing conclusive evidence. Kennedy, by the way, is a boxer man, if ever one were born on this green earth.

The test for illegal police searches has two parts after Katz: Does the individual have a subjective expectation of privacy in the place searched, and is that expectation objectively reasonable? So, if this case indeed turns on whether pot-growers expect privacy in their homes, there can be no debate: This is why pot-growers so rarely tend their crops in kitchen window boxes. But the case can be abstracted away—as it was today—by asking only if pot-growers have any reasonable expectation of privacy in the heat they emit. Well, of course not. With the exception of Justice Breyer and his dirty little sauna secrets, none of us knew our heat emissions would be cause for criminal investigation.

Which brings us back to Danny Kyllo, who may have successfully circumvented the laws of the land but couldn’t manage to get round the laws of physics.