TECHNOLOGY CAN'T BEAT THE CONSTITUTION

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 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 calls himself an "originalist," meaning that 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
the 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 (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 officers' eyes were involved in the scan
of Kyllo's home that was conducted from the street. 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.

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 technology.

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. 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 judicial
confirmation. President Bush's judicial nominees may be portrayed as too
much like Scalia. The decision in the Kyllo case should, but probably will
not, cause these critics second thoughts.