HANDS OFF THE FOURTH AMENDMENT

An interesting alliance of liberals and conservatives on the Supreme Court
took a stand on Monday against the encroachment of technology upon Fourth
Amendment guarantees -- handing down a 5-4 decision that law-enforcement
officers must obtain a proper search warrant before using devices such as
infrared heat detectors to "scan" a private residence.

The case at issue involved the arrest and subsequent conviction of an
Oregon man who was found to be growing marijuana in his home. What made the
case unusual was the use by police of thermal imaging equipment to
effectively "see" what was going on in the house without physically
searching it. The thermal imaging equipment was able to detect the heat
signature of the high-intensity grow lamps used by Danny Lee Kyllo to
nurture his illegal crop of marijuana plants. Police subsequently raided
the Kyllo home and arrested him for having some 100 pot plants on the premises.

The conviction was appealed on Fourth Amendment grounds specifically, that
the use of the thermal imaging equipment amounted to a search without a
warrant that was therefore unconstitutional. The majority opinion of the
Supreme Court agreed with this view. Writing for the majority, Associate
Justice Antonin Scalia explained that "Where, as here, the government uses
a device that is not in general public use, to explore details of the home
that would previously have been unknowable without physical intrusion, the
surveillance is a 'search' and is presumptively unreasonable without a
warrant." He added that the use of such technology by law-enforcement
officers without a warrant would "shrink the realm of guaranteed privacy"
and would "leave the homeowner at the mercy of advancing technology
including imaging technology that could discern all human activity in the
home."

It's a good thing the majority saw the danger presented by the unlimited
use of intrusive technology to observe, monitor and record our activities.
The idea that the authorities might be allowed to lawfully trundle down
neighborhood streets, pointing their latest electronic gear at any, perhaps
all, the homes they passed, just to see is a creepy one indeed. Nabbing a
few suburban pot farmers is not worth the price of our right to be secure
in our own homes against the prying eyes of government.

Free governments do not randomly watch or search the citizenry. Unfree
governments do. Free governments trust the people; unfree ones do not. No
authoritarian society has a Fourth Amendment. We do and it's a legacy worth
protecting, even if it means a little more paperwork for the police.