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KYLLO, DANNY v. UNITED STATES
Appealed From: 9th Circuit Court of Appeals (190 F.3d 1041)
Oral Argument: 2000 term (after Jan. 1, 2001)
The main subject in the Kyllo case deals with the advance in modern technology and how it relates to constitutional law. The overall question in this case is whether or not the use of thermal imaging technology should be used as a tool for searching the home of a person. The argument by the appellant, Mr. Kyllo, uses the unreasonable search and seizure clause of the Fourth Amendment as a defense against the use of thermal imaging systems without a warrant to search for illegal drug production inside his home. Kyllo v. U.S. is currently pending before the United States Supreme Court so the objective of this essay is to explain the procedural history of this case and to predict a final result and the implications of that prediction.
The question presented to the court is: Does the 4th Amendment protect against the warrantless use of a thermal imaging device which monitors heat emissions from a person?s private residence? As with any case, before any court, it is important to understand all aspects of a case. For example, the facts, procedural history, issues, holding(s), legal reasoning, sources of law, and values are all relevant to predicting a potential outcome as the U.S. Supreme Court sees it.
The facts and procedural history of the case are as follows. On January 16, 1992, at 3:20 a.m., Sergeant Daniel Haas of the Oregon National Guard examined, from his parked car, a triplex of houses where Kyllo lived. The full nature of the examination involved the use of an Agema Thermovision 210 thermal imaging device to ?look? for heat generated from inside the home of Kyllo. The purpose of the examination was to possibly locate an abnormally high heat source coming from inside Kyllo?s home, indicating the production of marijuana. If marijuana is to be grown inside it must have some source of intense ultraviolet light to aid it. Haas did indeed locate a high heat source in Kyllo?s home with the Agema 210 and noted that Kyllo?s home ?showed much warmer? than the other two houses in the triplex (Find Law). This indicated the presence of lights used to grow marijuana. This information was forwarded to William Elliot, an agent of the United States Bureau of Land Management. Elliot had already subpoenaed Kyllo?s utility records as Kyllo was already under investigation for the production of marijuana. With the information gathered by the use of the Agema 210, Elliot ?inferred? that the high levels of heat emission indicated the presence of high intensity lights used to grow marijuana indoors (Find Law). Elliot presented this information to a judge and was issued a search warrant. In searching Kyllo?s home the Bureau of Land Management found more than one hundred marijuana plants, weapons and drug paraphernalia. Kyllo was then indicted for manufacturing marijuana and filed a motion to suppress the evidence on the grounds that it was obtained illegally in accordance with the 4th Amendment. The district court denied Kyllo?s motion to suppress and he entered into a conditional guilty plea. Kyllo was sentenced to prison for 63 months. Kyllo appealed the denial of the suppression of motion, challenging the warrantless scan of his home with a thermal imager. In 1994, the 9th Circuit Court of Appeals reviewed whether the warrant used to search the home of Kyllo was based on knowingly and recklessly false information in the affidavit for the warrant (OTDNWU). The court reversed and remanded the decision of the district court and sent the case back to hold an evidentiary hearing on the capabilities of the Afema 210. Again the district court denied Kyllo?s motion to suppress with the conclusion that warrantless searches of homes with the Agema are permissible. Kyllo then appealed again in 1998 to the 9th Circuit. The court of appeals found, in a 2-1 decision, that the use of thermal imaging systems was unconstitutional. The government petitioned for a rehearing and the case went back to the 9th Circuit which retired one judge and picked up another. This time the decision was 2-1, holding that the monitoring of heat emissions by a thermal imaging system does not intrude upon Kyllo?s privacy. Kyllo recently appealed to the U.S. Supreme Court where the case is currently pending with arguments expecting to be heard in 2001.
The main issue is a concern of privacy and how far the government can intrude into the lives of citizens. With technology developing so rapidly it is difficult to rely on the interpretations of the 4th Amendment and statutes that do not incorporate the newest technologies. The question being asked to the Supreme Court is: Does the 4th Amendment protect against warrantless use of a thermal imaging device which monitors heat emissions from a person?s private residence?
The current holding of the U.S. District Court in Oregon and affirmed by the 9th Circuit Court of Appeals would suggest that the Supreme Court would further affirm that decision. However, the 9th Circuit Court holds only three judges and that court had already reversed and remanded the decision made by the District Court. In order to predict what the Supreme Court will decide it is important to investigate the legal reasoning behind the previous decisions made in the lower courts.
Investigating the case further requires that we investigate the reasons for the decisions already made. In the opinion of the court, Circuit Judge Hawkins gives reasons for the initial findings of the District Court of Oregon. The opinion states, ?the district court found that it (Agema 210) was a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house? (Find Law). Hawkins goes on further in the opinion to say that ?The Agema 210 scan simply indicated that seemingly anomalous waste heat was radiating from the outside surface of the home, much like a trained police dog would be used to indicate that an object was emitting the odor of illicit drugs?(Find Law). This analogy is difficult to parallel to the use of thermal imaging devices because drug dogs have no specific targets. In this case, Kyllo?s home was targeted.
Circuit Court Judge Noonan also used an analogy in his dissent. ?The closest analogy is use of a telescope that, unknown to the homeowner, is able from a distance to see into his or her house and report what he or she is reading or writing. Such and enhancement of normal vision by technology, permitting the government to discern what is going on in the home, violates the Fourth Amendment?(OTDNWU). Noonan, an advocate of privacy goes on to say, ?Such activities can cause the emission of heat from the home which the Agema 210 can detect. The activity will be reported as well as where it is taking place?(Find Law). Noonan is suggesting that the decision of the court creates precedent and would protect the government from spying on people in their homes. However, previous cases that have already set precedent were also investigated.
In the opinion of the court Hawkins mentions two specific sources of law. Hawkins writes, ?While a heightened privacy expectation in the home has been recognized for purposes of Fourth Amendment analysis (Dow Chemical Co. v. U.S.), activities within a residence are not protected from outside, non-intrusive, government observation, simply because they are within the home or its curtilage (Florida v. Riley) (Find Law)?. These two sources of law give Hawkins? opinion good justification but the dissent also finds legal precedent.
In Montana v. Bullock and Peterson, 901 P.2d 61 (1995), the Supreme Court of Montana ruled: ?individuals have reasonable expectations of privacy? (Find Law). In this case ?reasonable expectations of privacy? can be interpreted differently by different jurisdictions. This case challenged the legality of police to search property that they don?t own.
The only problem with the sources of law is that there is no specific case that deals directly with modern technology and its use as a search and seizure tool. There are however contextual factors that exist here. For instance, many Americans, including Judge Noonan, feel that there is a moral factor involved in deciding this type of case. If the District Court Judgement is affirmed it is possible that other technological advances such as satellite photography and video will invade the privacy of Americans.
If the Supreme Court holds with the trend of the United States District Court of Oregon and the 9th Circuit Court of Appeals then the ultimate interpretation of the 4th Amendment will be precedent for future search and seizure cases involving technological monitoring. For this reason I believe that the U.S. Supreme Court will overturn the Circuit Courts affirmation. The consequences for a reversal of the Circuit Courts decision are few. The 4th Amendment would still protect the rights of citizens. The negative aspect is that some drug dealers will go unnoticed. This is only a slight inconvenience given that thermal imaging may still be used if a warrant is obtained.
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