RIGHTS VIOLATED: SCALIA'S 'ORIGINALIST' CREDO CALLS HIGH-TECH SEARCHES
UNREASONABLE

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 week'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 (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 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.

More than the 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 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.

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.