AGEMA THERMOVISION 210 VS. THE CONSTITUTION

WASHINGTON - Danny Kyllo was not growing rhododendrons in his home on
Rhododendron Drive in Florence, Ore., in 1992. He was growing
marijuana, which when cultivated indoors requires high-intensity
lamps that generate considerable heat and, in this instance,
generated a Supreme Court case.

Last Monday's decision merits attention because the opinion for the
closely divided (5-4) court was written by Justice Antonin Scalia. He
is commonly, and not improperly, called a ``strict constructionist.''
He describes himself as an ``originalist,'' meaning that he construes
the Constitution by reading the text as its words were used and
understood at the time by those who wrote them.

The logic and structure of the document illuminates the original
meaning of those words.

And Scalia's originalism was no impediment to ruling that Kyllo's
Fourth Amendment right to protection against unreasonable searches
was violated by a technology never envisioned by the Constitution's
authors.

Dissenting from his civil libertarian opinion were three more-or-less
conservative justices (Rehnquist, O'Connor and Kennedy) and the
court's most liberal justice, Stevens.

Acting on information from informants and utility records, law
enforcement officers used an Agema Thermovision 210 thermal imager to
detect that the roof over Kyllo's garage and a side wall of his home
were unusually hot. Using that evidence, they acquired a search
warrant, found more than 100 marijuana plants and arrested Kyllo. He
said the evidence was illegally obtained because the warrant was
issued partly on the basis of the thermal imaging results, and the
imaging itself constituted a search conducted without a warrant, in
violation of the Fourth Amendment protection against unreasonable
searches.

The amendment was written in the context of the English common law
principle that ``the eye cannot by the laws of England be guilty of a
trespass.'' However, more than the law enforcement officers' eyes
were involved in the scan of Kyllo's home that was conducted from the
street and took only a few minutes.

The question for the court, as Scalia posed it, was: How much
technological enhancement of ordinary perception from such a vantage
point, if any, is too much?

Scalia, joined by Souter, Thomas, Ginsburg and Breyer, stressed that
the thermal imaging technology used is ``a device that is not in
general public use'' and a homeowner has a reasonable expectation of
privacy for activities that could not be detected without
technologically enhanced eavesdropping. But, then, such eavesdropping
is, in a sense, a contradiction in terms.

There often is wisdom in the logic of common language, so notice the
derivation of the word that would commonly be used to describe what
the government was doing: ``eavesdropping.'' The late Justice Hugo
Black noted that people surreptitiously seeking information used to
lurk in the ``eavesdrop,'' in the shadow under a building's eave.
This may not have been nice, but neither was it invasive.

It was the equivalent of surveillance by the ``naked eye'' - in this
example, the officers' eyes unassisted by any sense-enhancing
technology.

Privacy is neither an easily identifiable thing, like the Grand
Canyon, nor an absolute value.

However, the concern of the Constitution's Framers for protecting
privacy began by assuming that privacy of the home is the most
precious and most easily defined sort. In Kyllo's case, Scalia
offered this ``originalist'' criterion: What preserves the ``degree
of privacy against government that existed when the Fourth Amendment
was adopted''? Scalia and four colleagues concluded, ``On the basis
of this criterion, the information obtained by the thermal imager in
this case was the product of a search.''

Stevens, writing for the three other dissenters, sided with law
enforcement, accusing the majority of abandoning ``judicial
restraint'' as it overturned the 9th Circuit, the home of liberal
judicial activism, which had ruled against Kyllo. Stevens argued that
searches of ``property in plain view'' are presumptively reasonable.
Scalia responded that it is ``simply inaccurate'' to say, as the
dissenters did, that the thermal imaging did not obtain information
about the home's interior, the most protected realm of intimacy.

Congress is about to step onto the dark and bloody ground of the
judicial confirmation process.

Jurisprudential theories - ``strict construction,'' ``originalism,''
the Constitution as a ``living document'' that ``evolves'' to meet
``new problems'' - will be bandied.

Some senatorial and other critics of President Bush's judicial
nominees will portray those nominees as too much like Scalia, and
hence too strict in their ``originalist'' constitutional construction
to understand the applicability of the document to modern conditions.
The decision in the Kyllo case should, but probably will not, cause
these critics second, or perhaps first, thoughts.