SCALIA'S OPINION CONFOUNDS CRITICS

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, 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.

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, police 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.

Scalia 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 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, 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 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"? He 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."
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. This decision should, but probably will not, cause
these critics second, or perhaps first, thoughts.