SCALIA TOO STRICT? LOOK AGAIN

Danny Kyllo was not growing rhododendrons in his house 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.

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 he construes the Constitution by reading the
text as its words were used and understood 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 (Chief Justice William Rehnquist, Sandra
Day O'Connor and Anthony Kennedy) and the court's most liberal justice,
John Paul 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 house were unusually hot.
Using that evidence, they got a search warrant, found more than 100
marijuana plants and arrested Kyllo.

Kyllo 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.

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 officers' eyes were involved in the scan
of Kyllo's house 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 Justices David Souter, Clarence Thomas, Ruth Bader
Ginsburg and Stephen 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.

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, 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 about.

Some senatorial and other critics of President George W. 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.