Kyllo v. United States, Continued

Case Analysis
Understanding the Katz case is crucial to understanding contemporary Fourth Amendment doctrine. In Katz v. United States , 389 U.S. 347 (1967), police put a “bug,” or listening device, on the roof of a telephone booth. Both parties approached that case by arguing “area.” The defendant said the space inside a telephone booth was constitutionally protected, and that the government could not intrude without violating the Fourth Amendment. The government argued that the area within the booth was not constitutionally special, and that, regardless, their bug was on the outside.

The United States Supreme Court confounded both parties by restating the question. The issue was reshaped as involving personal privacy rather than protected areas. In a ringing phrase, the Katz Court said “the Fourth Amendment protects people, not places.” In that case and in future cases, the parties would need to concentrate more on the individual and less on the location.

Katz, or more precisely, Justice Harlan’s concurring opinion in Katz, also provided a framework for this new approach to Fourth Amendment search and seizure issues by presenting two questions. First, did the individual have a subjective expectation of privacy? Second, was this expectation one which society would find reasonable? While the first question is indeed subjective, as it is based on the belief of the individual, the second question is objective. It is a question of law for judges. Most of the time judges must answer this question in the context of a motion to suppress evidence. And realistically, most cases--this one included--end up being resolved by the second of the two Katz inquiries.

Because the Fourth Amendment protects against unreasonable searches and seizures, the Katz determination is important. If what took place was not a "search,” the government’s conduct is not covered by the amendment at all. If, however, there was a search, then that event can be either "reasonable" or "unreasonable." There was no warrant for the thermal imaging here, and none of the classic exceptions to the search warrant preference are present. If the imaging was not a search, the government can use the results as part of its probable cause showing for the search warrant. If, however, this was a search, it almost certainly will be deemed an unreasonable one, and probable cause will evaporate. Declaring a particular police practice to be a “search” does not ban the practice. It does require reasonableness, however, which is usually achieved by obtaining a warrant from a judge in advance.

As the arguments in this case unfolded, the opponents engaged in a battle of analogies. Is thermal imaging like examining the garbage a homeowner has left at the curb, where its observation will not be deemed a search? California v. Greenwood , 486 U.S. 35 (1988). The government says it is, and tries to link the two situations by suggesting that the Agema 210 merely gathered up “waste heat.” To Kyllo, on the other hand, placing trash on the curb is an intentional act, whereas the laws of physics control escaping heat. The escaping heat is not a waste product he has abandoned to animals, snoops, and the public in general.

How about a dog sniff, also previously found not to be a search? United States v. Place , 462 U.S. 696 (1983). The government suggests thermal imaging is just another example of a police practice that, without intruding on private activities, reveals what human senses alone would not. Kyllo replies that while a dog’s acute senses merely heighten the human sense of smell, thermal imaging gathers data that is beyond human senses altogether. The dog acts on instinct, whereas thermal imaging-like photography-is subject to operator manipulation and artistic license.

The parties also disagree sharply about two important "beeper" cases. The government stresses United States v. Knotts , 460 U.S. 276 (1983). There, the Supreme Court found there was no search when police used a beeper to follow a car and an object within it. That use of scientific enhancement or technology caused no Fourth Amendment problems. Kyllo, on the other hand, prefers a different example, United States v. Karo , 468 U.S. 705 (1984). This time a drum of chemicals was tracked electronically, and the drum ended up in a residence. The Court found a search, and an unreasonable one, because the beeper disclosed critically important information about the interior of the home. This outside/inside the home distinction is stressed in the way both parties initially state their question. The government talks about “heat emanating from the exterior of a house,” while defendant Kyllo talks about thermal imaging “to detect heat sources within a home."

One more interesting disagreement is presented by two "flyover" cases. The government offers Dow Chemical Co. v. United States , 476 U.S. 227 (1986), in which an aerial mapping camera’s photographs were held not to be the product of a search. Kyllo’s reply again stresses the home, and distinguishes the surveillance of an industrial plant from that of a private residence. In California v. Ciraolo , 476 U.S. 207 (1986), however, police were held not to have conducted a Fourth Amendment search when they flew 1,000 feet over a backyard, and observed what was concealed on the ground by fences. Defendant Kyllo responds to that case by noting that the general public, too, could have had that aerial view. But, he says, the general public does not gaze on a neighbor’s home with a thermal imager in hand.

The Katz approach represents an analytical framework rather than a means of predicting an outcome. It causes courts and parties to consider privacy more than location. Privacy is not a constant, however, and is at its pinnacle in the home. Both prosecutor and defendant in this case believe that Katz supports their position and their desired outcome.


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