OUR VIEW: THE HEAT IS OFF

At Least, When It Comes To Snooping Into Our Private Lives With
High-Tech Gadgetry

When is a search not a search? In constitutional jurisprudence there
will always be gray areas and fine-tuning because the Fourth Amendment
protects citizens against "unreasonable" searches and seizures, and
reasonable people can disagree as to what constitutes an unreasonable
search.

While we have sometimes criticized the current U.S. Supreme Court lineup
on search-and-seizure issues, we are encouraged that the court on Monday
came down on the side of citizens when it comes to high-tech
surveillance devices in Kyllo vs. United States.

The case involved a triplex in Florence, Ore., and the suspicion by
police that someone there was growing marijuana inside. Drug agents used
a heat-imaging device and figured that the concentrations of heat it
showed were halide bulbs used for growing marijuana.

Based on that supposition they got a warrant, searched Danny Kyllo's
house and found 100 marijuana plants.

Lower courts had held that the use of the heat-imaging device was not
really an unconstitutional warrantless search because Kyllo had made no
effort to conceal the heat and the device did not reveal any "intimate
details of Kyllo's life."

The Supreme Court ruled, as Cato Institute director of constitutional
studies Roger Pilon summarized it, "that the use of a high-tech device
does not render what we all know to be a search to be a non-search." It
also affirmed, as the court's syllabus put it, that "in the sanctity of
the home, all details are intimate details."

The case was interesting in that the majority included Justices Antonin
Scalia and Clarence Thomas, generally viewed as conservatives, and
Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer, generally
viewed as liberals, and was written by Justice Scalia.

"It was good to see Scalia and Thomas standing for constitutional
principle, which, in this case, means freedom from warrantless
searches," Pilon said.

The decision was also important in making it clear to police agencies
that just because certain kinds of snooping devices are available or
feasible it doesn't automatically follow that they can be used to
inspect citizens without solid evidence.

The lower courts had argued that the device in question furnished only
"amorphous hot spots" on outside walls rather than more detailed images.

The requirement that a warrant be issued by a neutral party is one more
example of how the separation of powers protects individual liberty.

When the police, an executive agency, must get permission from the
judicial branch to do certain things, the tendency to abuse power is
restrained.

Disagreement about what kinds of surveillance are permissible given
technological advances is virtually inevitable.

With this decision the high court offers reassurance that the basic
premise - that the Fourth Amendment creates a strong presumption in
favor of individual liberty and privacy that can only be overridden in
extraordinary circumstances - still holds a powerful position in
American law.