JUDICIAL IDENTITIES FRAME A DECISION

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.

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 (William H. Rehnquist, Sandra Day
O'Connor and Anthony M. 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.

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 David H. 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. But, then, such
eavesdropping is, in a sense, 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, 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.