SCALIA SAW THE LIGHT

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.

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.

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 Ninth 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.