UNREASONABLE SEARCHES THE HIGH-TECH WAY

Drug agents used something called a thermal imager to try to figure out what
was going on in the home of Danny L. Kyllo. The instrument, it is reported,
can detect infrared radiation, which is to say, it can pick up on unusual
heat. The agents were thus able to figure out that Kyllo was probably using
lots of light bulbs to help him grow marijuana. They were then able to
obtain a search warrant, found the marijuana and arrested Kyllo.

The case is now in the U.S. Supreme Court, where justices will decide if
agents standing outside a home and looking inside by means of such a device
is equivalent to the unconstitutional practice of an unreasonable search. If
common sense is a trustworthy guide, it is. The government contends the
thermal imager did not reveal private activities. But if the government
agents had not been able to establish certain facts about the inside of
Kyllo's house through their walls-invading imager, there may have been no
arrest and there would be nothing for the court to consider.

In a case such as this one, which involves high-tech instruments the
country's founders never imagined, it obviously is crucial to focus on the
principle incorporated in the constitutional language that they crafted.
They had to have understood that unfettered searches by police could in fact
result in bringing large numbers of criminals to justice. Their concern
clearly was something else - to protect the dignity of the person from
governmental intrusiveness and make homes as nearly inviolable under law as
reasonableness would permit - even at the risk of some criminals escaping
detection.

High-technology has given the government any number of new tools with which
to invade your privacy. News account note that the government can spy on
your back yard from satellites in space or listen to your conversations with
family and friends by means of sophisticated instruments. Isn't that as much
an unreasonable search as the prying eyes of a government agent who broke
into your house?

It is the principle that counts, and in this high-tech age, it is more vital
than ever that the courts not be overly precise in their analysis of the
Constitution's words alone. If they are, they will invite its diminishment.