PRIVACY WINS ONE

Strange Judicial Bedfellows Make Good Law

For all its usual concern with 18th-century meanings and intent, the
U.S. Supreme Court issued a 21st-century decision Monday. What is more,
it did it in such a way as to confound those who see the court through
the prism of a strict left-right divide.

The case involved a police search of the house of Danny Lee Kyllo, who
was arrested and charged with growing marijuana in his Florence, Ore.,
home in 1992. The police had obtained a search warrant based, in part,
on information they got from using a thermal imaging device to scan the
home from the outside.

The pattern of heat loss the device revealed suggested that Kyllo was
using high-intensity lights of the kind favored by pot growers.

The issue was whether the police needed to get a warrant before
conducting the thermal imaging. In a 5-4 decision, the high court said,
"Yes."

Writing for the majority, Justice Antonin Scalia said that conducting
the thermal imaging without a warrant constituted an unlawful search. In
addition, he said the ruling applies to any "more sophisticated systems"
that may be developed or used to collect evidence from outside a home
that would otherwise require physical entry to obtain.

"This," said Scalia, "assures preservation of that degree of privacy
against government that existed when the Fourth Amendment was adopted."

The government had argued that the thermal imaging scan revealed no
private information. Scalia, however, said that in the home, "all
details are intimate details."

The court's decision is good news for anyone who values privacy or the
sanctity of the home. It makes things tough, however, for those who try
to divine the court's direction.

Not only did Scalia, a strong law-and-order judge, side with the
defendant, but the dissenting opinion was written by Justice John Paul
Stevens, one of the more liberal justices. The rest of the court divided
in a way that defied conventional wisdom.

Students of the court can sort out the internal politics. For the rest
of us, what prevailed Monday was the Fourth Amendment. As technology
advances, snooping of all kinds will become easier and more intrusive.
With this, the court said that the 21st-century intruders are no more
welcome than their less sophisticated predecessors of 200 years ago.