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                              18 of 239 DOCUMENTS

           Copyright (c) 2003 Arkansas Law Review and Bar Association
                                 Journal, Inc.
                              Arkansas Law Review

                                   2003

                              56 Ark. L. Rev. 431

LENGTH: 9065 words

CASE NOTE: Kyllo v. United States: Is the Court's Bright-Line Rule on
Thermal Imaging Written in Disappearing Ink?

Adam W. Brill

* The author would like to thank Carlton Bailey, Associate Professor
of Law, University of Arkansas School of Law, who provided
thought-provoking insight, mentoring, and practitioner insights. The
author would also like to thank Michael Heister, J.D. 2002, for
providing critical analysis.

SUMMARY:

 ...  On June 11, 2001, the United States Supreme Court handed down its
first opinion on whether the warrantless use of a thermal imager
against the home constitutes a search. ...  In district court, Kyllo
filed a motion to suppress the evidence obtained by the warrantless use
of the thermal imager. ...  In a new, two-to-one decision, the Ninth
Circuit held that Kyllo had no reasonable expectation of privacy
against the use of a thermal imager on his home. ...  It should be
readily apparent, then, that the expectation of privacy that one has
against a search may not apply when sense-enhancing devices are used
against the curtilage, regardless of whether they are in the general
public use.

...  The holding in Kyllo should have been: absent a warrant, the use
of a thermal imager constitutes a search wherever an expectation of
privacy exists. ... Due to this move away from established precedent,
the Court's holding fails to establish a bright-line rule as to whether
the warrantless use of a thermal imager constitutes an unreasonable
search. ... The irony is that because of the inherent vagueness in the
Kyllo holding, there is no certainty as to whether the use of any
device that enhances the senses, other than a thermal imager, will
constitute a search. ...

TEXT:
 [*431]

   I. INTRODUCTION*

 On June 11, 2001, the United States Supreme Court handed down its
first opinion on whether the warrantless use of a thermal imager
against the home constitutes a search. Contrary to most circuit court
decisions and the predictions of experts, the Court disallowed their
use in Kyllo v.  United States. n1 In an opinion written by Justice
Scalia, the Court held that using a sense-enhancing device that is not
available for use by the general public constitutes a search. n2

   Rather than deciding Kyllo on its particular facts and simply
finding that the warrantless use of a thermal imager against the home
is unconstitutional, the Court tried to prevent what it perceived as a
future threat to the home. n3 However, by hinging the protection the
home receives on whether the "sense-enhancing technology" is in
"general public use," the Court effectively weakened its own ruling, n4
and ensured that the bright-  [*432]  line protections created in Kyllo
are temporary rather than permanent. n5

   This note will examine Kyllo's facts, its drawn-out and
controversial procedural history, and the substantive history of search
and seizure in the home. With this background, this note will then
generally discuss the application of search-and-seizure law to the use
of electronic-monitoring devices, sense-enhancing devices, and,
finally, thermal imagers. The analysis will center on the holding in
Kyllo by discussing the two interpretations applied to this case.
Finally, this note will explain that the protection provided by Kyllo's
holding - which provides that the government's warrantless use of
thermal imagers on a citizen's home violates the Fourth Amendment - may
be illusory because it relies on courts to define and re-define
sense-enhancing devices and what may constitute general public use.

   II. STATEMENT OF FACTS

 In the early 1990s, the United States Bureau of Land Management
("BLM") allowed investigations of large-scale marijuana cultivation to
include private homes when there was information that public lands were
involved. n6 While investigating a large indoor marijuana growing and
distribution operation, BLM Agent William Elliott discovered
information that suggested Danny Kyllo was involved with the operation.
n7 Elliott also received information from local and state law
enforcement officers that possibly linked Kyllo and another suspect to
an indoor operation at the same residence. n8 Along with other
information, this led Elliott to subpoena Kyllo's utility records. n9
Using  [*433]  these records, Elliott estimated what Kyllo's average
electricity use should have been and concluded that Kyllo's actual
electricity use was excessive. n10 Elliott suspected that Kyllo was
manufacturing marijuana in his home; a thermal scan would provide the
answer. n11

   At just after three o'clock in the morning, on January 16, 1992,
without first securing a warrant, Elliott enlisted Daniel Haas, a
Sergeant in the Oregon National Guard, to perform a thermal scan on
Kyllo's home. n12 Haas utilized an Agema Thermovision 210 thermal
imaging device n13 ("Agema 210") to examine Kyllo 's home. n14 After
using the thermal imager, Haas surmised that there was extensive heat
loss emanating from one of the walls and from the roof over the
garage. n15 Haas also utilized the Agema 210 against two neighboring
homes n16 to establish a baseline that Kyllo's home was "much warmer"
than the surrounding homes. n17 Elliott interpreted the scan results
to be consistent with the production of marijuana and inferred that
the  [*434]  heat emissions were a likely indication of the presence
of halide lamps. n18

   Armed with this inference, Elliott presented the thermal scanner
information, the electric bills, and an informant's statement in an
affidavit to a magistrate. n19 A search warrant for Kyllo's home was
executed on January 27, 1992. n20 The officers executing the warrant
found live marijuana plants, dried marijuana, and growing equipment in
Kyllo's attic. n21 Kyllo was subsequently indicted by a federal grand
jury on February 20, 1992, for manufacturing marijuana in his
residence. n22

   III. PROCEDURAL DEVELOPMENT

 In district court, Kyllo filed a motion to suppress the evidence
obtained by the warrantless use of the thermal imager. n23 The district
court denied his motion to suppress, finding that the use of a thermal
imager to track heat sources was not an unreasonable search. n24 Based
on the district court's ruling, Kyllo entered a conditional guilty
plea, reserving his right to appeal. n25

   On appeal, the Ninth Circuit remanded the case for an evidentiary
hearing regarding the intrusiveness of thermal imaging. n26 On remand,
the district court focused on the capabilities  [*435]  of the Agema
210 and found it to be "non-intrusive." n27 Subsequently, the district
court affirmed the validity of thermal imaging to secure the warrant,
and reaffirmed its denial of the motion. n28

   On the second appeal, the Ninth Circuit reversed the district
court, n29 finding that Kyllo had a subjective expectation of privacy
against an intrusive search of his home. n30 It also found that
thermal imaging revealed intimate activities and that it constituted
an unreasonable search in violation of the Fourth Amendment. n31
However, this opinion was withdrawn upon a change in the composition
of the court. n32 Over Kyllo's objection, the new panel reheard and
affirmed the district court's decision. n33 In a new, two-to-one
decision, the Ninth Circuit held that Kyllo had no reasonable
expectation of privacy against the use of a thermal imager on his
home. n34 Subsequently, the United States Supreme Court granted
certiorari on September 26, 2000. n35

   IV. SUBSTANTIVE DEVELOPMENT

 The case law relied upon by Kyllo v. United States n36 spans the
historical aspects of privacy within the home, search, search of the
home, electronic monitoring of the home, sense-enhancing devices, and,
finally, thermal imagers. This section will analyze each of these
topics in turn.

    [*436]

   A. The Home

 The notion that a "man's house is his castle," n37 originates from the
earliest days of civilization. n38 Indeed, the home was held in such
high regard in Babylonian times that one was forbidden to enter a home
without permission, and to do so at night was punishable by death. n39
It is this protection from governmental intrusion that led the Founding
Fathers to establish the Bill of Rights n40 in an effort to protect
private homes from the quartering of troops and unreasonable searches
and seizures. n41

   The Supreme Court has long recognized that the home is entitled to
the greatest protection allowed under the Fourth Amendment. n42 By
following the notion that "certain enclaves should be free from
government interference," the Court has repeatedly held that
warrantless searches of the home are per se unreasonable. n43 In an
effort to protect this right of privacy, the Founding Fathers enacted
the Fourth Amendment, which provides that "the right of people to be
secure in their . . .  [*437]  houses . . . against unreasonable
searches and seizures, shall not be violated." n44 This privacy
interest is not found in the fact that the premises are occupied, but
in the intimate activities that take place within the home. n45 The
right of a person to retreat into the home to be free from
unreasonable government intrusion is at the very core of the Fourth
Amendment. n46

   B. Search n47

 Katz v. United States, n48 the seminal case regarding whether a search
is constitutional, provides that courts must determine whether a search
is unreasonable, and hence unconstitutional, by ascertaining whether
the person "exhibited an actual expectation of privacy," and whether
that expectation is one which society is willing to recognize as
reasonable. n49 Of course, the expectation of privacy must be one that
is found or drawn from "the personal and societal values protected by
the Fourth Amendment." n50

   C. Search and the Home

 Because the "Fourth Amendment has drawn a firm line at the entrance"
of the home, n51 any warrantless search or seizure within the home is
presumptively unreasonable absent exigent circumstances. n52 Therefore,
any non-consensual search n53 of the  [*438]  home must be accompanied
by either a warrant executed by a "neutral and detached magistrate,"
n54 or by "exigent circumstances." n55

   Prior to Kyllo, the Court had never applied the Katz I holding to
the homeowner. Katz I adds to these exceptions by requiring that the
homeowner must exhibit an actual expectation of privacy that the
public is prepared to recognize. n56 In previous cases, the use of
Katz I was limited to situations where privacy expectations were not
clearly defined. n57

    [*439]

   D. Search and the Curtilage

 Traditionally, the same body law governing the protection of the home
has also applied to the area outside of the home. The historical
significance of the moat surrounding the castle of the Dark Ages
carried over to what English barristers eventually referred to as the
"curtilage." n58 Early jurisprudence provided protection against
trespass and intrusion to the outer ring or surrounding landscape of
the home. n59 The Founding Fathers, impressed as to the importance of
freedom from governmental intervention, passed this protection on to
United States citizens through the Fourth Amendment. n60 In Dow
Chemical Co. v.  United States, n61 the Supreme Court agreed with the
Founding Fathers, and held that the curtilage was also deserving of
protection. n62 Nevertheless, Kyllo provides protection to the home in
isolation, but discounts the value of the curtilage within the context
of search. n63 Therefore, when a search against the home requires
[*440]  a warrant, a warrant may or may not also be required for a
search of the corresponding curtilage. n64

   E. Electronic Monitoring and the Home

 The Court has found electronic monitoring of the home to be an
impermissible intrusion. n65 In United States v. Karo, n66 the Court
held that the government 's use of a beeper to track the movement of
chemicals within a private residence was unconstitutional. n67 This is
because the beeper revealed information about the home that would not
have been available unless the agent had personally entered the home in
secret. n68 Therefore, a  [*441]  search is unconstitutional if it is
conducted without a warrant and it uses a technology that gives or
reveals facts about the interior of the home not otherwise available.
n69

   F. Sense-Enhancing Devices

 The Court has held that sense-enhancing devices n70 may not be used
against the home without a warrant. n71 Sense-enhancing devices may
range in technological sophistication from a shot glass held up against
a neighbor's wall n72 to a thermal imager capable of seeing movement
through walls. n73 The sense-enhanced device spectrum includes:
flashlights, n74 binoculars and telescopes, n75 night scopes, n76
canine sniffs, n77 aerial surveillance, n78 X-  [*442]  ray machines,
n79 thermal infrared devices, n80 and gas chromatography/mass
spectrometry devices known as "Sentors." n81 Absent exigent
circumstances, the warrantless use of technologically advanced devices
against the home constitutes a search where these devices provide
access to intimate details not otherwise available. n82

    [*443]

   G. Thermal Imagers

 Prior to Kyllo, the United States Supreme Court had never addressed
the constitutionality of the warrantless use of thermal imagers. n83 It
would be wrong, however, to infer that this was due to the issue being
well-settled or sorted out in the lower courts. The use of thermal
imagers has spawned a tremendous amount of litigation. n84 Some courts
have found that the warrantless use of thermal imagers constitutes a
search. n85 Courts reaching the opposite conclusion have justified the
use of thermal imagers against the home by using one of three
analogies: waste heat, canine sniff, and the technological approach.
n86

   The first, waste heat, analogizes the examination of discarded
garbage without a warrant n87 to the examination of heat which is
"discarded" from the home. n88 The second, canine sniff, argues that
since police may use a canine (which is a sense-enhancing device) in
an unobtrusive search without a warrant, n89 the use of a thermal
imager (also a sense-enhancing device) is similarly an unobtrusive
search and therefore is not a search. n90 The final analogy is the
technological approach, which courts have used to find that the use of
thermal imagers does not constitute  [*444]  a search because the
technology did not reveal any intimate details. n91

   Kyllo is one of many cases in which the lower court decided that
sense-enhancing devices, and in particular thermal imagers, could be
used against the home without a search warrant. n92 The crucial
dividing line for the courts turned on whether the court found that
the technology revealed intimate details. n93 By 1999, the circuit
courts were fractured as to the legality of the warrantless use of
thermal imagers; n94 thus, the Supreme Court had to address the issue
for the first time.

   V. ANALYSIS

   A. The Case

 Make no mistake about it, Kyllo v. United States n95 is a timely case.
n96 The last time the Court visited the issue of the interplay between
sense-enhancing devices and the Fourth Amendment was in 1986. n97 In
choosing Kyllo, the Supreme Court was to decide an issue which had
fractured the circuits. n98  [*445]  The Court chose Kyllo carefully;
rather than hearing a case where the facts were well-settled by a full
bench trial, the Court granted certiorari for a case that was merely an
appeal of a denied motion to suppress evidence obtained without a
warrant. Under these circumstances, the holding should not be tied to
the facts, save for the basic premise that the protection is for the
home.

   B. The Holding

 In Kyllo, the Supreme Court held that "obtaining by sense-enhancing
technology any information regarding the interior of the home that
could not otherwise have been obtained without physical "intrusion into
a constitutionally protected area,' constitutes a search - at least
where (as here) the technology in question is not in the general public
use."  n99

   1. The First Interpretation

 Following the Court's noteworthy decision, the media published the
Kyllo holding as: "the use of thermal imagers against the home without
a warrant constitutes a search." n100 Indeed, Kyllo was hailed as "a
rare instance of an alliance between liberals and libertarians, united
here in support of the sanctity of the home." n101 At least one source
called it "the most unlikely collaboration of the year." n102 Because
most experts were certain  [*446]  that the Court would find otherwise,
n103 predictions were comprehensive and far-reaching. n104 In fact, it
was so widely thought that the government would win that the only
amicus brief filed with the Court was on behalf of Kyllo.  n105

   Given the surprising nature of the holding, one would hope that the
case would have been reported correctly when it was announced. The
reported holding - that the use of thermal imagers against the home
without a warrant constitutes a search - is not the actual holding of
Kyllo, but is rather a summation of what the media thought the holding
meant. The sentence that follows the holding: "We hold the
Thermovision imaging to have been an unlawful search, it will remain
for the District Court to determine whether, without the evidence it
provided, the search warrant issued in this case was supported by
probable cause . . ." n106 is an instruction for what the district
court must do on remand, and is not Kyllo's holding. Unfortunately,
most media sources, even the sources responsible for keeping the legal
profession up to date on the law, reported the holding of Kyllo
incorrectly. n107 This misinformation is dangerous simply because it
is misleading. n108

    [*447]

   2. The Correct Interpretation

 The Court did provide protection for the home against the warrantless
use of sense-enhancing devices that provide information not otherwise
available without physical intrusion. n109 This holding is tempered
though by the ambiguities of: (1) what constitutes "general public
use," and (2) what devices are "sense-enhancing." Indeed, most
sense-enhancing devices previously addressed by the Court are in the
general public use. n110 The few exceptions are X-ray devices, thermal
infrared devices, and gas chromatography/mass spectrometry devices.
n111 Additionally, prudent readers should note that the curtilage is
given short shrift in Kyllo. n112 It should be readily apparent, then,
that the expectation of privacy that one has against a search may not
apply when sense-enhancing devices are used against the curtilage,
regardless of whether they are in the general public use. n113

   3. What the Holding Should Have Been

 The holding in Kyllo should have been: absent a warrant, the use of a
thermal imager constitutes a search wherever an expectation of privacy
exists.  n114 While the Court used Katz v.  [*448]  United States n115
to find that a search occurred, it failed to apply the "expectation of
privacy" standard to wherever one may find it, including the home and
even the curtilage. n116 The Court redefined "search," as it relates to
the home, by providing protection against sense-enhancing devices only
as they are used against the interior of the home, and only with
respect to information that could not otherwise have been obtained
without physical intrusion. n117

   Due to this move away from established precedent, the Court's
holding fails to establish a bright-line rule as to whether the
warrantless use of a thermal imager constitutes an unreasonable
search. n118 It does craft a response that can be interpreted to mean
that, at the present, using a thermal imager against the home without
a warrant is a search, but the ruling fails to actually hold that the
use of a thermal imager without a warrant constitutes an unreasonable
search. n119

   While using a thermal imager to search a home constitutes a search
for now, the real question is how much longer this will hold true.
Courts are already using the Kyllo holding to permit the use of
sense-enhancing devices that were previously thought to be prohibited
because the devices are now in the general public  [*449]  use. n120
Simply stated, the Court should have, at a minimum, delivered an
answer similar in simplicity and substance to Silverman v. United
States: n121 that absent a warrant, a thermal imager may never be used
against the home. n122

   C. The Holding's Effect Now

 Upon the dissemination of the Kyllo decision, several other pending
cases were remanded for rehearing. n123 Undoubtedly, Kyllo affects how
the government conducts searches now, n124 but the real consequences
will only be realized through the lower courts. n125 The way the lower
courts determine the protection required for the curtilage, the home,
and searches within the home, will eventually set forth the rule
applied to one's locality. n126

   1. The Holding's Effect on the Curtilage

 The curtilage, that critical area surrounding the home, was the last
bastion of protection against intrusion, but Kyllo's sole mention of
the curtilage is to discount it. n127 Any protections  [*450]  against
sense-enhancing devices previously provided for the curtilage are now
removed. n128 Before this ruling, the law in "X" jurisdiction may have
required a warrant before a government agent could peer into, or use
binoculars to look into, a barn within the curtilage. n129 Kyllo stands
for the prospect that officers may use whatever sense-enhancing device
they choose against the curtilage. Kyllo expressly discounts the notion
that a minimum expectation of privacy exists in "areas such as
telephone booths, automobiles, or even the curtilage," and insists that
only the interior of the home deserves protection against the use of
sense-enhancing devices. n130

   2. The Effect of Kyllo on the Home

 Following Kyllo, the home receives better universal protection against
the use of thermal imagers than it did prior to the ruling. n131 The
question of how long this will remain true will be answered depending
upon how Kyllo is interpreted.

   a. Sense-Enhancing Devices and the Home

 Sense-enhancing devices are those instruments that amplify those
sensory characteristics already present. This should mean  [*451]  that
any use of a device previously discussed in this note n132 should fall
under the umbrella of protection talked about in Kyllo. However,
because the Court does not address what constitutes a sense-enhancing
device, n133 there are questions as to what limits will be applied.
n134

   The irony is that because of the inherent vagueness in the Kyllo
holding, there is no certainty as to whether the use of any device
that enhances the senses, other than a thermal imager, will constitute
a search. n135 This is because of the second requirement: a search
only occurs when the device was not in the general public use.

   b. What Devices are in the General Public Use?

 Never before has an expectation of privacy rested on whether the item
utilized by the government to conduct a search of the home was in the
general public use. n136 In previous Court  [*452]  decisions, the
protection a place or person received hinged on whether there was a
reasonable expectation of privacy. n137 In fact, all of the other cases
involving the use of sense-enhancing devices have been based on whether
the item used provided intimate details or impermissibly infringed upon
a person's reasonable expectations. n138

   What, then, does this new direction mean for what the Court has
previously held? n139 It could mean that any previous holding that
provided protection against the use of a sense-enhancing device that
is in the public use is now null and void. Devices like
binoculars/telescopes, night scopes, n140 and beepers are all devices
that should inarguably be found to be in the general public use. n141
Kyllo's holding, then, should also similarly  [*453]  effect any other
sense-enhancing device that is generally in the public use, and should
mean that government agents can use them against the home without
first obtaining a warrant. n142

   D. The Future of Search

 If this holding is strictly construed, most protections previously
available to areas where there was an expectation of privacy no longer
exist. n143 However, there is potentially an even greater danger that
exists depending on how future courts determine what devices constitute
sense-enhancing devices. n144 Courts in large communities like Little
Rock, Arkansas could find that thermal imagers are in the general
public use, n145 while courts in much smaller communities might not
even have a thermal imager within their jurisdiction, and would not
find them to be in the general public use. n146 Even giving a device
the distinction of being a sense-enhancing device will not alone be
enough to ensure that the device cannot be used on the home. This is
because courts, given a liberal enough interpretation, could eventually
find that the general availability of a device constitutes general
public use. n147 Surely, the Court did not intend [*454] Kyllo to
provide unequal protection against governmental intrusion based upon
the geographical location of the defendant's home. n148

   VI. CONCLUSION

 The Kyllo v. United States n149 decision is noteworthy for many
reasons. It was a case of first impression and served to homogenize the
split circuit court decisions. However, Kyllo is not the firm or
bright-line rule that the Court would have us believe it is. Presently,
thermal imagers cannot be used against the home. Unfortunately, Kyllo's
progeny will further weaken any chance of the home being safe against
governmental intrusion. This is because the Court will inevitably
create exceptions to what Kyllo requires.

   Regardless of how future courts address this issue, technology
remains an inherent threat to the sanctity of the home. It is
inevitable that "the threat to privacy will grow, rather than recede,
as the use of intrusive equipment becomes more readily available."
n150 Although Kyllo has provided temporary protection against
governmental intrusion, using open terms for its bright-line
protections ensures that the ruling will last about as long as it
takes for disappearing ink to dry. Kyllo provides protection today,
but will it tomorrow?

   FOOTNOTES:

   n1. 533 U.S. 27 (2001) [hereinafter Kyllo VII]. While seven Kyllo
opinions are referenced in this note, the Supreme Court opinion with
the citation 533 U.S. 27 (2001) will be referred to merely as "Kyllo"
throughout the text.

   n2. Id. at 34.

   n3. See id. at 36. "The rule we adopt must take account of more
sophisticated systems that are already in use or in development." Id.
Indeed, the nine-year gap between when Kyllo's home was scanned and
when the case finally arrived at the Supreme Court must have brought
with it antiquated thermal imagers compared to what is currently
available. See infra note 73.

   N4. See Kyllo VII, 533 U.S. at 34. In Dow Chemical Co. v. United
States, 476 U.S. 227 (1986), the Court agreed "that surveillance of
private property by using highly sophisticated surveillance equipment
not generally available to the public, such as satellite technology,
might be constitutionally proscribed absent a warrant." Id. at 238.
However, it did not rule on whether the use of technology not
generally available to the public to search a home or its curtilage
would require a warrant. See id.

   n5. "It seems likely that the threat to privacy will grow, rather
than recede, as the use of intrusive equipment becomes more readily
available." Kyllo VII, 533 U.S. at 47 (Stevens, J., dissenting).

   n6. Opening Brief for Appellant at 2-4, Kyllo v. United States, 533
U.S. 27 (2001) (No. 99-8508), available at 2000 WL 33127872.

   n7. United States v. Kyllo, 140 F.3d 1249, 1250 (9th Cir. 1998)
[hereinafter Kyllo IV].

   n8. United States v. Kyllo, 190 F.3d 1041, 1043 (9th Cir. 1999)
[hereinafter Kyllo V].

   n9. Kyllo IV, 140 F.3d at 1251.

   n10. Id.

   n11. Id.

   n12. Id.

   n13. Id. Thermal imagers rely on heat, not light, to create a
picture of the outside world. See Kyllo v. United States, 533 U.S. 27,
29-30 (2001) [hereinafter Kyllo VII]. Thermal imagers
   detect infrared radiation, which virtually all objects emit but
which is not visible to the naked eye. The imager converts radiation
into images based on relative warmth - black is cool, white is hot,
shades of gray connote relative differences; in that respect, it
operates somewhat like a video camera showing heat images.

 Id. Thermal imagers are "off the shelf" military technology that have
 been in
general use for nearly twenty-five years. Kyllo V, 190 F.3d at 1044.
The device is used for search and rescue and is also utilized by many
businesses for a variety of purposes including the detection of roof
leaks, steam pipe leaks, cracks in high voltage transmission lines,
and overloaded transformers. Id. Several companies market thermal
imagers, which are readily available for purchase or rental. Id. They
range in price from $ 15,000 to $ 35,000. See Petula Dvorak, Fire
Chiefs Discuss Equipment Allegation, Wash. Post, Oct. 5, 2001,
available at 2001 WL 28362310 (reporting that thermal imagers used by
fire departments cost about $ 15,000 each).

   n14. Kyllo V, 190 F.3d at 1044.

   n15. Kyllo VII, 533 U.S. at 30.

   n16. Clearly, the Fourth Amendment is implicated by the search of
homes of individuals who are not suspected of criminal activity. See,
e.g., Melvin Gutterman, A Formulation of the Value and Means Models of
the Fourth Amendment in the Age of Technologically Enhanced
Surveillance, 39 Syracuse L. Rev. 647, 707 (1988); Lewis R. Katz, In
Search of a Fourth Amendment for the Twenty-First Century, 65 Ind.
L.J. 549, 559-60 (1990); James J. Tomkovicz, Beyond Secrecy for
Secrecy's Sake: Toward an Expanded Vision of the Fourth Amendment
Privacy Province, 36 Hastings L.J. 645, 649 (1985).

   n17. Kyllo V, 190 F.3d at 1044.

   n18. Id. Halide lamps are typically used in sports lighting, but
also function as a substitute for natural sunlight when used indoors.
See Sharon Colley, Neighborly Night Lights: Ball Fields That Don't
Spill the Beams, Am. City & County, Apr. 30, 2000; Kim Weststead,
Ill-mannered Dog "Rats Out' Victoria Marijuana Grow-Op its Owners Ran,
Can. Press, Sept. 20, 2001, available at 2001 WL 27755013. The use of
halide lamps allows the growth of marijuana indoors. See Colley, supra
note 18; Weststead, supra note 18.

   n19. Kyllo V, 190 F.3d at 1044. The affidavit, which was later
found to be false and misleading as it related to Kyllo's energy
consumption, stated that the amount of electricity used at Kyllo's
home was typical of indoor marijuana growth and that Kyllo's wife,
Luanne, had previously been convicted of possession and distribution
of an illegal substance. See United States v. Kyllo, 37 F.3d 526, 528
(9th Cir. 1994) [hereinafter Kyllo II]. The magistrate issued the
warrant to search Kyllo's home based upon this affidavit. Kyllo V, 190
F.3d at 1044.

   n20. Kyllo V, 190 F.3d at 1044.

   n21. United States v. Kyllo, 809 F. Supp. 787, 789 (D. Or. 1992)
[hereinafter Kyllo I].

   n22. Id.

   n23. 533 U.S. 27, 30 (2001) [hereinafter Kyllo VII].

   n24. Id.

   n25. Id.

   n26. United States v. Kyllo, 37 F.3d 526, 528 (9th Cir. 1994)
[hereinafter Kyllo II].

   n27. On remand, the district court found the Agema 210 to be a
"non-intrusive device which emits no rays or beams and shows a crude
visual image of the heat being radiated from the outside of the
house." United States v. Kyllo, No. 92-51-FR, 1996 WL 125594, at 2 (D.
Or. Mar. 15, 1996) [hereinafter Kyllo III].

   n28. Id.

   n29. United States v. Kyllo, 140 F.3d 1249, 1255 (9th Cir. 1998)
[hereinafter Kyllo IV].

   n30. Id. at 1252.

   n31. Id. at 1254.

   n32. United States v. Kyllo, 190 F.3d 1041, 1043 (9th Cir. 1999)
[hereinafter Kyllo V].

   n33. Id.

   n34. Id. at 1046.

   n35. Kyllo v. United States, 530 U.S. 1305 (2000) [hereinafter
Kyllo VI].

   n36. 533 U.S. 27 (2001) [hereinafter Kyllo VII].

   n37. John Bartlett, Familiar Quotations: a Collection of Passages,
Phrases, and Proverbs traced to their Sources in Ancient and Modern
Literature 152 (Justin Kaplan ed., 16th ed. 1992) (quoting Sir Edward
Coke); see Matthew L. Zabel, Comment, A High-Tech Assault on the
"Castle": Warrantless Thermal Surveillance of Private Residences and
the Fourth Amendment, 90 Nw. U. L. Rev. 267, 268 (1995).

   n38. At least as early as 533 A.D., the home was considered a safe
refuge from invasion. See Bartlett, supra note 37, at 152 n.2; see
also Genesis 19:4-11 (explaining that when two strangers visited Lot
in the city of Sodom, a mob approached Lot's home and called out to
Lot to bring out the strangers that had sought refuge in his home).

   n39. See Nelson B. Lasson, The History and Development of the
Fourth Amendment to the United States Constitution, in 55 The Johns
Hopkins University Studies in Historical and Political Science No. 2,
at 14 n.6 (1937).

   n40. See id. at 99-105.

   n41. See id. at 51-78.

   n42. See Wyman v. James, 400 U.S. 309, 316 (1971) (noting that the
Court has consistently been protective of the privacy of the
dwelling); Mapp v. Ohio, 367 U.S. 643, 647 (1961) (holding that the
Fourth Amendment purposely put the Government under limitations and
restraints to ensure the security of the people against all
unreasonable searches); Boyd v. United States, 116 U.S. 616, 626-30
(1886) (finding that under the laws of England, all invasions of
personal property, no matter how miniscule, were a trespass). For
other cases discussing the importance of privacy in the home, see
Soldal v. Cook County, 506 U.S. 56, 62-65 (1992) and Payton v. New
York, 445 U.S. 573, 585-86 (1980).

   n43. See, e.g., United States v. Karo, 468 U.S. 705, 717 (1984)
(holding that warrantless searches are presumptively unreasonable);
Steagald v. United States, 451 U.S. 204, 220 (1981) (holding that the
Fourth Amendment was intended to protect against the abuses that had
occurred in England); Payton, 445 U.S. at 586 (holding that searches
and seizures of the home without warrant are per se unreasonable).

   n44. U.S. Const. amend. IV.

   n45. See, e.g., Segura v. United States, 468 U.S. 796, 810 (1984);
Payton, 445 U.S. at 615; Burdeau v. McDowell, 256 U.S. 465, 475
(1921).

   n46. See, e.g., Soldal, 506 U.S. at 64 (holding that the
""principal' object of the [Fourth] Amendment is the protection of
privacy") (citing Warden, 387 U.S. at 304); Winston v. Lee, 470 U.S.
753, 758 (1985) (conveying a natural right to be left alone as
inherent in humanity); United States v. Martinez-Fuerte, 428 U.S. 543,
561-65 (1976) (stating that private dwellings are afforded the most
stringent protections of the Fourth Amendment as compared to
automobiles); Silverman v. United States, 365 U.S. 505, 511 (1961)
(discussing the right to retreat from government intrusion).

   n47. When the Fourth Amendment was adopted, "to search" meant "to
look over or through for the purpose of finding something; to explore;
to examine by inspection; as to search the house for a book; to search
the wood for a thief." Kyllo VII, 533 U.S. at 33 n.1 (quoting N.
Webster, An American Dictionary of the English Language 66 (1828) (6th
ed. 1989) (emphasis added)).

   n48. 389 U.S. 347 (1967) [hereinafter Katz I].

   n49. Id. at 361 (Harlan, J., concurring).

   n50. Oliver v. United States, 466 U.S. 170, 182-83 (1983).

   n51. Payton, 445 U.S. at 590.

   n52. As a general rule, law enforcement may only intrude on private
property by obtaining a search warrant issued by a neutral magistrate
based on probable cause. See Maryland v. Buie, 494 U.S. 325, 329
(1990); Karo, 468 U.S. at 717; Welsh v. Wisconsin, 466 U.S. 740,
748-49 (1984); Steagald, 451 U.S. at 211-12; Payton, 445 U.S. at 586;
Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971).

   n53. A consensual search is one of the specifically established
exceptions to the warrant requirement. See Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973) (holding that individual consent could only
be ascertained by analyzing all of the circumstances, and need not
necessarily comply with the standard definition of voluntariness,
meaning that the accused had a right to know of his right to refuse
consent to a search). Voluntary consent may be given by the individual
whose property is searched, or by a third party who possesses common
authority over the premises being searched. See Illinois v. Rodriguez,
497 U.S. 177, 181 (1990). Illegal coercion is not established from the
failure to inform the arrestee that he could withhold consent. See
United States v. Watson, 423 U.S. 411, 425 (1976). If consent is
given, the police may search property without a warrant. See United
States v. Matlock, 415 U.S. 164, 171 (1974). The voluntary consent of
any joint occupant of a residence to search the premises jointly
occupied is valid against the co-occupant, permitting evidence
discovered in the search to be used against him at a criminal trial.
See id. at 171 n.7.

   n54. The purpose of the neutral and detached magistrate requirement
is to avoid having the inferences required to find probable cause
"judged by the officer engaged in the often competitive enterprise of
ferreting out crime." Johnson v. United States, 333 U.S. 10, 14
(1948). "The history of the use, and not infrequent abuse, of the
power to arrest cautions that a relaxation of the fundamental
requirements of probable cause would leave law-abiding citizens at the
mercy of the officers' whim or caprice." Wong Sun v. United States,
371 U.S. 471, 479 (1963) (internal citations omitted).

   n55. Payton, 445 U.S. at 586-87. Exigent circumstances exist (and
thus the warrant requirement is extinguished) when there "is reason to
believe that [delaying for a warrant] will allow an escape or increase
unreasonably the physical risk to the police or to innocent persons"
or will increase the likelihood that evidence will be destroyed. Id.
at 577 n.7 (quoting People v. Floyd, 260 N.E.2d 815, 816 (N.Y. 1970));
see also Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298 (1967)
(holding that neither the entry of the inmate's home, nor the search
for him, without a warrant was invalid due to the exigencies of the
situation).

   n56. Katz I required "first that a person have exhibited an actual
(subjective) expectation of privacy and, second, that the expectation
be one that society is prepared to recognize as "reasonable.'" 389
U.S. at 361 (Harlan, J., concurring).

   n57. See Minnesota v. Olson, 495 U.S. 91, 96-97 (1990) (holding
that overnight guests have a legitimate expectation of privacy). But
see Minnesota v. Carter, 525 U.S. 83, 88 (1998) (finding that guests
have no right to standing unless they had a reasonable expectation of
privacy); Rakas v. Illinois, 439 U.S. 128, 141-48 (1978) (holding that
the capacity to claim an expectation depends upon whether the person
has a legitimate expectation of privacy).

   n58. "Curtilage" is defined as "the land or yard adjoining a house,
usually within an enclosure." Black's Law Dictionary 389 (7th ed.
1999). "Under the Fourth Amendment, the curtilage is an area usually
protected from warrantless searches." Id.

   n59. Blackstone wrote that "no distant barn, warehouse, or the like
are under the same privileges, nor looked upon as a man's castle of
defence." William Blackstone, 4 Commentaries on the Laws of England
(1765-1769) 225 (Univ. of Chicago Press 1979). Blackstone observed,
however, that "if the barn, stable, or warehouse, be parcel of the
mansion-house, and within the same common fence, though not under the
same roof or contiguous, a burglary may be committed therein; for the
capital house protects and privileges all its branches and
appurtenances, if within the curtilage or homestall." Id.

   n60. Both a home and the home's curtilage - i.e., "the area outside
the home itself but so close to and intimately connected with the home
and the activities that normally go on there that it can reasonably be
considered part of the home" - are within the scope of the Fourth
Amendment's protection. United States v. Shanks, 97 F.3d 977, 979 (7th
Cir. 1996) (quoting United States v. Pace, 898 F.2d 1218, 1228 (7th
Cir. 1990)).

   n61. 476 U.S. 227 (1986).

   n62. Id. at 227; see also Shanks, 97 F.3d at 979.

   n63. In its discussion of the curtilage, the Court groups several
areas together that are entitled to less protection than the interior
of the home.
   While it may be difficult to refine Katz when the search of areas
such as telephone booths, automobiles, or even the curtilage and
uncovered portions of residences are at issue, in the case of the
search of the interior of homes . . . there is a ready criterion, with
roots deep in the common law, of the minimal expectation of privacy
that exists, and that is acknowledged to be reasonable.

 Kyllo VII, 533 U.S at 34. The preceding statement expressly discounts
 the
curtilage, by comparing one's expectation of privacy within the
curtilage to their expectation of privacy within an automobile - one
of the least protected areas.

   Prior to the Kyllo holding, the protection that the curtilage
received was based on the expectation of privacy that existed there.
In Florida v. Riley, 488 U.S. 445 (1989), a search of the curtilage
was found when flight over the curtilage was "sufficiently rare" to
lend credibility to assertions that there is a reasonable expectation
of privacy against observation, that there is interference with the
use or enjoyment of the curtilage, or that intimate details were
observed. Id. at 451-52.

   n64. See, e.g., United States v. Kyllo, 190 F.3d 1041, 1046 (9th
Cir. 1999) [hereinafter Kyllo V] (holding that the defendant did not
have a subjective expectation of privacy in the waste heat emitted
from his house because he made no attempt to conceal the heat
emissions from the lamps needed to grow the marijuana); United States
v. Myers, 46 F.3d 668, 669 (7th Cir. 1995) (holding that the defendant
displayed no subjective expectation of privacy in the heat emitted
from his home because he took no steps to contain the heat emissions;
in fact, he released the heat through vents on the roof); United
States v. Ford, 34 F.3d 992, 995 (11th Cir. 1994) (holding that the
defendant's actions proved that he did not exhibit a subjective
expectation of privacy in the heat emitted from his mobile home). But
see United States v. Cusumano, 67 F.3d 1497, 1506 (10th Cir. 1995)
(holding that the use of a thermal imager constituted an
unconstitutional warrantless search).

   Each determination of whether a certain property comes with the
curtilage of a home, so as to come within the protection of the Fourth
Amendment, is distinctive and stands or falls on its own unique set of
facts. See Daughenbaugh v. City of Tiffin, 150 F.3d 594 (6th Cir.
1998). But a property owner may have a reasonable expectation of
privacy even in areas and outbuildings that are some distance from the
principal dwelling. See United States v. Reilly, 76 F.3d 1271, 1273-74
(2d Cir. 1996) (holding that a cottage 375 feet from a defendant's
main residence was within the curtilage). However, some outbuildings
may not be within the curtilage and may instead be grouped in the open
field category. See United States v. Van Damme, 48 F.3d 461, 464-65
(9th Cir. 1995) (holding a greenhouse to be in an open field); see
also United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1993)
(holding a barn to be in an open field).

   n65. Karo, 468 U.S. at 717 (rejecting the use of a beeper to track
the movement of objects within the home). But see United States v.
Knotts, 460 U.S. 276, 284-85 (1983) (holding that the use of a beeper
to monitor the movement of objects outside of the home is not
violative of the Fourth Amendment).

   n66. 468 U.S. 705.

   n67. Id. at 705.

   n68. See id. at 715.

   n69. Id. at 715-16.

   n70. Sense-enhancing devices include items such as: electronic
tracking devices ("beepers"), aerial searches, thermal infrared
imaging, and drug-sniffing canines. See Peter Joseph Bober, The
"Chemical Signature" of the Fourth Amendment: Gas Chromatography/Mass
Spectrometry and the War on Drugs, 8 Seton Hall Const. L.J. 75, 90-100
(1997).

   n71. See Dow Chem., 476 U.S. at 237 n.4.

   n72. There is no reasonable expectation of privacy regarding motel
room conversations that are overheard with unaided ears in the motel
room next door. See United States v. Jackson, 588 F.2d 1046, 1051-53
(5th Cir. 1979) (holding that there was no difference between using
non-electronic devices to eavesdrop and simply maintaining
surveillance of the activities). Use of hearing enhancement devices
may "raise very different and far more serious questions" than visual
enhancement devices when determining the reasonable expectation of
privacy of defendants and, consequently, whether a warrant is
required. Dow Chem., 476 U.S. at 238-39.

   n73. Contrary to government testimony, thermal imagers are capable
of "through-the-wall infrared imaging which, when aimed at a wall, can
plot details of all the objects behind it. In hostage situations, the
police could detect the location of hostages, their captors, weapons
and placement of walls, doors, etc. " Mohammed Ahmedullah, No Hiding
Place with New Security System, White House Weekly, Sept. 18, 2001,
Defense Week Special Edition (internal citations omitted), available
at http://www.kingpublishing.com/publications/whw/.

   n74. See Marshall v. United States, 422 F.2d 185, 189 (5th Cir.
1970) (holding that the use of a flashlight may constitute a search).
But see United States v. Booker, 461 F.2d 990, 992 (6th Cir. 1972)
(holding that no search occurs when a flashlight is used from the
lawful vantage point of the front porch).

   n75. The binocular/telescope rule is based on the theory that the
sense-enhancing capability of the devices merely provides information
that could have been otherwise obtained. See State v. Young, 867 P.2d
593, 598 n.1 (Wash. 1994). But see United States v. Taborda, 635 F.2d
131, 139 (2d Cir. 1980) (holding that the police use of a telescope to
identify objects or activities, without which they would not have been
able to identify, is a search). Consequently, the rule does not permit
enhanced observations that enable an officer to observe objects or
activities that could not be observed by the naked eye. In these
circumstances, the defendant may have a legitimate expectation of
privacy in the objects or activities. See, e.g., United States v. Kim,
415 F. Supp. 1252, 1256 (D. Haw. 1976) (holding that a search occurred
when FBI agents used an 800 millimeter telescope to observe activities
in the defendant's apartment one-quarter mile away); State v. Kender,
588 P.2d 447, 450-51 (Haw. 1978) (holding that a search occurred when
the officer climbed up the fence on the neighboring defendant's
backyard to observe activities that otherwise would have been
concealed by a fence and heavy foliage).

   n76. Night scopes are essentially a combination of artificial
lighting and magnification. See generally United States v. Ward, 546
F. Supp. 300, 310 (W.D. Ark. 1982) (holding that there was no Fourth
Amendment violation in the mere employment of a telescopic night scope
before obtaining warrant); United States v. Hensel, 509 F. Supp. 1376,
1384 n.9 (D. Me. 1981); Newberry v. State, 421 So. 2d 546, 547 (Fla.
Dist. Ct. App. 1982); State v. Denton, 387 So. 2d 578, 583-84 (La.
1980).

   n77. A canine sniff is usually understood to be the use of a
canine's superior sense of tracking odors and scents in a search. See
United States v. Place, 462 U.S. 696, 707 (1983) (holding that canine
sniffs may be used against luggage in a public place). But see United
States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir. 1985) (holding that
a search by a canine at the door of an apartment constituted a
search).

   n78. Aerial surveillance is not considered an enhancement that
gives rise to a search violating the Fourth Amendment so long as the
search occurs from public, navigable airspace and is not conducted in
a physically intrusive fashion. See California v. Ciraolo, 476 U.S.
207, 213-15 (1986) (holding that a warrantless aerial observation of
the curtilage of a home was not unreasonable under the Fourth
Amendment); State v. Myrick, 688 P.2d 151, 155 (Wash. 1984) (holding
that aerial surveillance of open fields at 1500 feet, without the use
of visual enhancement, was not unreasonably intrusive). But see Riley,
488 U.S. at 451 (suggesting that aerial surveillance might violate the
Fourth Amendment if it revealed "intimate details" or caused
"excessive noise or other disturbances"); Dow Chem., 476 U.S. at
238-39 (upholding high altitude aerial photographic surveillance by
EPA on open fields, but once again suggesting that homes may not be
subject to this type of search).

   n79. See, e.g., Brent v. Ashley, 247 F.3d 1294, 1302-03 (11th Cir.
2001) (holding that strip search and pelvic X-ray examination was a
violation of citizen's Fourth Amendment rights); United States v.
Allen, 337 F. Supp. 1041, 1043 (E.D. Pa. 1972) (holding that using an
X-ray machine against a suspect requires a warrant).

   n80. See supra note 13.

   n81. These devices, commercially known as Sentors, are used by
federal law enforcement agencies in drug enforcement operations. See
Bober, supra note 70, at 76 n.13. The Sentor is a super vacuum that
uses a molecular filter to determine the amount of cocaine, heroin, or
methamphetamine present in a given area. Id. at 76-77. It is strong
enough to detect a particle of cocaine as small as one part per one
hundred trillion. Id. at 77. Ratio-wise this is like "finding a
specific grain of sand on a mile-long beach." Id. at 77 n.18.

   n82. See Riley, 488 U.S. at 451; Dow Chem., 476 U.S. at 239; Karo,
468 U.S. at 712; Brent, 247 F.3d at 1302-03; Thomas, 757 F.2d at 1367;
Taborda, 635 F.2d at 135; Marshall, 422 F.2d at 189; Kim, 415 F. Supp.
at 1256; Allen, 337 F. Supp. at 1043; Kender, 588 P.2d at 450-51.

   n83. Kyllo VII, 533 U.S. at 29.

   n84. See, e.g., United States v. Myers, 46 F.3d 668 (7th Cir.
1995); United States v. Robertson, 39 F.3d 891 (8th Cir. 1994); United
States v. Ford, 34 F.3d 992 (11th Cir. 1994); United States v. Pinson,
24 F.3d 1056 (8th Cir. 1994); United States v. Olson, 21 F.3d 847 (8th
Cir. 1994); United States v. Deaner, 1 F.3d 192 (3d Cir. 1993); United
States v. Feeney, 984 F.2d 1053 (9th Cir. 1993); United States v.
Field, 855 F. Supp. 1518 (W.D. Wis. 1994); United States v.
Domitrovich, 852 F. Supp. 1460 (E.D. Wash. 1994); United States v.
Porco, 842 F. Supp. 1393 (D. Wyo. 1994); United States v.
Penny-Feeney, 773 F. Supp. 220 (D. Haw. 1991); Young, 867 P.2d at 593.

   n85. See United States v. Cusumano, 67 F.3d 1497, 1510 (10th Cir.
1995); United States v. Elkins, 95 F. Supp. 2d 796, 811 (W.D. Tenn.
2000); Field, 855 F. Supp. at 1533; United States v. Ishmael, 843 F.
Supp. 205, 213 (E.D. Tex. 1994); Commonwealth v. Gindlesperger, 743
A.2d 898, 905 (Pa. 1999); State v. Siegal, 934 P.2d 176, 180 (Mont.
1997); Young, 867 P.2d at 594.

   n86. See, e.g., Robinson, 62 F.3d at 1330; Ishmael, 48 F.3d at 850;
Myers, 46 F.3d at 668; Pinson, 24 F.3d at 1056.

   n87. See California v. Greenwood, 486 U.S. 35, 37 (1988).

   n88. See, e.g., Myers, 46 F.3d at 670; Ford, 34 F.3d at 997;
Pinson, 24 F.3d at 1058; Domitrovich, 852 F. Supp. at 1474; Porco, 842
F. Supp. at 1397; Penny-Feeney, 773 F. Supp. at 226; State v. McKee,
510 N.W.2d 807, 810 (Wis. Ct. App. 1993).

   n89. Place, 462 U.S. at 707.

   n90. See, e.g., Robinson, 62 F.3d at 1330; Pinson, 24 F.3d at 1058;
Penny-Feeney, 773 F. Supp. at 226-27; McKee, 510 N.W.2d at 810.

   n91. These were generally known as the technology cases. See Kyllo
V, 190 F.3d at 1043; Ford, 34 F.3d at 996; Pinson, 24 F.3d at 1059.

   n92. See, e.g., Robinson, 62 F.3d at 1330; Ishmael, 48 F.3d at 850;
Myers, 46 F.3d at 668; Pinson, 24 F.3d at 1056.

   n93. Ishmael, 48 F.3d at 855 (quoting Dow Chem., 476 U.S. at 238).

   n94. See supra notes 85-86, 88, 90-91.

   n95. 533 U.S. 27 (2001) [hereinafter Kyllo VII].

   n96. See John P. Elwood, What Were They Thinking, 4 Green Bag 2d
365, 370-71 (2001).

   n97. See Dow Chem. Co. v. United States, 476 U.S. 227, 227 (1986).
This is not to say that the Court has historically refused to
intervene when devices were used against the home. As early as 1942,
the Court had this to say about searches and the Fourth Amendment:
   The search of one's home or office no longer requires physical
entry for science has brought forth far more effective devices for the
invasion of a person's privacy than the direct and obvious methods of
oppression which were detested by our forbears and which inspired the
Fourth Amendment . . . . Whether the search of private quarters is
accomplished by placing on the outer walls of the sanctum a
detectaphone that transmits to the outside listener the intimate
details of a private conversation, or by new methods of photography
that penetrate walls or overcome distances, the privacy of the citizen
is equally invaded by the Government and intimate personal matters are
laid bare to view.

 California v. Ciraolo, 476 U.S. 207, 218 n.3 (1986) (citing Goldman
 v. United
States, 316 U.S. 129, 139 (1942) (Murphy, J., dissenting)).

   n98. See generally supra notes 88, 90-91 (citing cases regarding
waste heat, canine sniff, and technology).

   n99. Kyllo VII, 533 U.S. at 34. The Court explained that this
holding would provide the same protection that the home had against
government intrusion as when the Fourth Amendment was "adopted." Id.

   n100. This is the Kyllo holding as reported by nearly every major
news agency. See, e.g., Court Reins in High-Tech Surveillance Justices
Rule that Police Must Have a Warrant Before Using Detection Devices,
Star Trib., June 12, 2001, at 01A, available at 2001 WL 9629297; Linda
Greenhouse, Court Curbs High-Tech Invasions of Home Privacy Justices
Also Back After-Hours, San Diego Union & Trib., June 12, 2001, at A1,
available at 2001 WL 6466142; David G. Savage, Court Says No to Home
Snooping Law: U.S. Justices Restrict the Use of Heat Sensors and Other
High-Tech Spy Devices by Police, L.A. Times, June 12, 2001, at A1,
available at 2001 WL 2494823.

   n101. David Cole, Scalia's Kind of Privacy, The Nation, July 23,
2001, at 6, available at 2001 WL 2132778, at 2.

   n102. Id. Justice Scalia, the civil-libertarian Justice, joined
with ultra-conservative Justice Thomas, and was then joined by three
liberal Justices Souter, Ginsberg, and Breyer. Id. The dissent is
actually written by the most liberal justice, Justice Stevens. Id.
Historically, Chief Justice Renquist and Justices Scalia, Thomas,
O'Connor, and Kennedy have voted together in the area of criminal law
and procedure. See Oneill, infra note 107.

   n103. See supra notes 86, 88, 90-91; see also Alan M. Dershowitz, A
Court Term Defined at Its Beginning, Seattle Post-Intelligencer, July
8, 2001, at D9, available at 2001 WL 3562567.

   n104. See Christopher Bannerman, Note, Forward Looking Infrared
Radar and the Fourth Amendment, 16 QLR 419, 428-43 (1997).

   n105. Brief of Amici Curiae of the Liberty Project at 1, Kyllo v.
United States, 533 U.S. 27 (2001) (No. 99-8508) available at 2001 WL
1706770.

   n106. Kyllo VII, 533 U.S. at 40.

   n107. Marcia Coyle, As High Court Cases Go, These Were the Sexy
Ones, 23 Nat 'l L.J. No. 50, Aug. 6, 2001, at C5; Marcia Coyle, Taking
Charge: An Activist Court Rules on Speech, Immigration, and One Big
Election, 23 Nat'l L.J. No. 50, Aug. 6, 2001, at C1; 2000-2001 Term:
Supreme Court Review, 23 Nat'l L.J. No. 50, Aug. 6, 2001, at C1;
Timothy P. Oneill, "Crime Control Five': They Vote Together, Win
Together, 147 Chi. Daily L. Bull. No. 201, Oct. 12, 2001, at 5; NBC
Nightly News: New See-Through Technology Helps Law Enforcement, but
Privacy Concerns Arise, (NBC television broadcast, June 21, 2001)
available at 2001 WL 24023270.

   n108. This case is misleading in the same sense that most
defendants have been misled to believe that their Miranda rights
provide unlimited protection. See Miranda v. Arizona, 384 U.S. 436,
444 (1966). The Miranda rights require that "prior to any questioning,
the person must be warned that he has a right to remain silent, that
any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or
appointed." Id. Of course, there are many exceptions to this rule. See
generally New York v. Quarles, 467 U.S. 649, 655-56 (1984) (holding
that circumstances fall within public safety exception to general
requirement, pursuant to or as aid in enforcement of the Federal
Constitution's Fifth Amendment privilege against self-incrimination,
to give Miranda warnings before conducting custodial interrogation);
Harris v. New York, 401 U.S. 222, 226 (1971) (holding that otherwise
inadmissible statement, taken in violation of the Miranda Rule, may be
used to impeach inconsistent testimony); United States v. Delago, 397
F. Supp. 708, 712 (D.C.N.Y. 1974) (holding that Miranda was not
required when, as a condition of his probation, the defendant was
required to promptly and truthfully answer all inquiries directed to
him by the probation officer).

   n109. The Federal Bureau of Investigations had this to say about
the Kyllo decision: "As a practical matter, the Kyllo case will
severely restrict the use of thermal imagers to scan private homes or
other premises where there is an expectation of privacy. Such scans
now require a search warrant, absent exceptions such as consent or
emergency." Supreme Court cases: 2000-2001 term, 1/1/02 FBI L.
Enforcement Bull. 22, available at 2002 WL 15329837, at 8.

   n110. See Bober, supra note 70, at 90-100; see also supra notes
75-78.

   n111. See supra notes 79-81.

   n112. The Court again states in Kyllo that the Fourth Amendment
draws "a firm line at the entrance to the house," and thereby
discounts any area "which does not share the Fourth Amendment sanctity
of the home." 533 U.S. at 40. But see supra notes 58-60.

   n113. Newspapers were quick to point out that thermal imaging could
be used against structures not protected by the Fourth Amendment. See
Larry Wilson & Warren Spencer, The Impact of Kyllo: Don't Discard
those Thermal Imaging Devices, 68 Police Chief, Sept. 1, 2001, at
1012, available at 2001 WL 15375038.

   n114. This line of thought comports with the Court's previous
decisions in United States v. Karo, 468 U.S. 705 (1984) and United
States v. Jacobsen, 466 U.S. 109 (1984), in which the Court found that
a search occurs when the government infringes on an area in which an
expectation of privacy exists. Karo, 468 U.S. at 712; Jacobsen, 466
U.S. at 113. This could also provide the protections that the Fourth
Amendment envisioned because curtilage and other areas where a person
has an expectation of privacy receive protection. See generally supra
note 60.

   n115. 389 U.S. 347 (1967) [hereinafter Katz I]. Katz I held that
courts must determine whether a search is unconstitutional by
ascertaining whether the person "exhibited an actual (subjective)
expectation of privacy," and whether that expectation is one which
society is willing to recognize as reasonable. Id. at 361 (Harlan, J.,
concurring).

   n116. However, this application of Katz I has previously been used
by the Court in Riley, Karo, and Dow Chemical. See supra notes 60-65,
78, 97.

   n117. Kyllo VII, 533 U.S. at 34 (citing Silverman v. United States,
365 U.S. 505, 512 (1961)).

   n118. The question presented was: Does the use of a thermal imager
against the home without a warrant constitute a search? The answer:
"Obtaining by sense-enhancing technology any information regarding the
interior of the home that could not otherwise have been obtained
without physical "intrusion into a constitutionally protected area,' .
. . constitutes a search - at least where (as here) the technology in
question is not in the general public use." Id.

   n119. While the holding seems strong now, it is far from the
absolute prohibition that was provided against electronic monitoring
in Karo. See 468 U.S. at 717.

   n120. See People v. Katz, 2001 WL 1012114, at 2 n.4 (Mich. App. Sep
4, 2001) [hereinafter Katz II] (holding that the police officer's use
of night-vision binoculars to obtain visual images does not constitute
a search, as the binoculars might well be in the general public use);
State v. Mordowanec, 788 A.2d 48, 54-55 (Conn. 2002) (holding that
commercial property does not receive protection from search by thermal
imagers).

   n121. 365 U.S. 505.

   n122. Id. at 505 (holding that eavesdropping accomplished by means
of an electronic device that penetrated the premises occupied by
petitioner was a violation of the Fourth Amendment).

   n123. See, e.g., Acker v. United States, 533 U.S. 913, 913 (2001);
United States v. Depew, 17 Fed. Appx. 563, 564 (9th Cir. 2001); United
States v. Real Property Located at 15324 Co. Highway E., No. 99-3190,
2001 WL 1021587, at 1 (7th Cir. Sep. 4, 2001).

   n124. See supra note 105.

   n125. See Depew, 17 Fed. Appx. at 564-65 (holding that under Kyllo,
a thermal scan is a search).

   n126. Given the full life cycle of Kyllo, Americans will no longer
have an expectation of privacy against any sense-enhancing device
previously discussed. The Kyllo dissent best argues that the rule's
general public use "criteria is somewhat perverse because it seems
likely that the threat to privacy will grow, rather than recede, as
the use of intrusive equipment becomes more readily available." 533
U.S. at 47 (Stevens, J., dissenting).

   n127. The curtilage is compared to telephone booths and automobiles
in order to find strength for the interior of the home.

   While it may be difficult to refine Katz when the search of areas
such as telephone booths, automobiles, or even the curtilage and
uncovered portions of residences are at issue, in the case of the
search of the interior of homes . . . there is a ready criterion, with
roots deep in the common law, of the minimal expectation of privacy
that exists, and that is acknowledged to be reasonable.

 Kyllo VII, 533 U.S. at 34.

   n128. While it is true that curtilage was not squarely addressed by
Kyllo, it is also true that the protections provided by Kyllo against
the use of sense-enhancing devices only apply to the interior of the
home - expressly excluding any protection to those areas outside of
that zone. Id.

   n129. See Siebert v. Severino, 256 F.3d 648, 654 (7th Cir. 2001)
(holding that there is an expectation of privacy in a barn); United
States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1993) (holding that
there was a legitimate expectation of privacy inside a barn); State v.
Cada, 923 P.2d 469, 477 (Idaho Ct. App. 1996) (holding that open view
is limited when applied to the curtilage).

   n130. This is because the holding only provides protection against
sense-enhancing devices for the "interior of the home." Kyllo VII, 533
U.S. at 34. But see State v. Schumacher, 37 P.3d 6, 11 (Idaho Ct. App.
2001) (holding that the thermal imaging of a barn was an unlawful
search).

   n131. One must take into account the fact that, prior to the Kyllo
ruling, using a thermal imager against the home was not considered a
search in most jurisdictions. Only then does it actually seem as
though the Court provided some real protection for the home against
the use of sense-enhancing devices and, indeed, the thermal imager.
See supra note 86.

   n132. This list should include binoculars, night scopes, aerial
surveillance, thermal imagers, and Sentors. See supra notes 13, 75-76,
78, 81.

   n133. The description given is that "sense-enhancing technology
[are used to gather] information regarding interior of home that could
not otherwise have been obtained without physical "intrusion into
constitutionally protected area.' " Kyllo VII, 533 U.S. at 34. A
recent slip opinion follows the Kyllo opinion analysis that the
sense-enhancing "dog sniff" is a search despite the fact that canines
are in the general public use. United States v. Richard, 2001 WL
1033421, at 6 n.4 (W.D. La. Aug. 29, 2001).

   n134. Conversely, perhaps the Court had technological advancements
in mind when constructing this opinion. Footnote four of the opinion
expressly deals with the possibilities of what the National Law
Enforcement and Corrections Technology Center intends to develop: "The
ability to "see' through walls and other opaque barriers is a clear,
and scientifically feasible, goal of law enforcement research and
development." Kyllo VII, 533 U.S. at 37 n.4. The Court mentions, by
name, some of the devices that the "rule we adopt must take account
of," including "Radar-Based Through-the-Wall Surveillance System,
Handheld Ultrasound Through the Wall Surveillance, and a Radar
Flashlight that will enable law officers to detect individuals through
interior building walls." Id. at 37 n.4 (internal citations and
quotations omitted).

   n135. It should be noted that the Court could, in the future, rule
that devices like the Sentor or the X-ray are beyond what could be
categorized as sense-enhancing, thereby making the Kyllo ruling
inapplicable to them.

   n136. Perhaps some guidance as to what constitutes general public
use is available. Prior Court opinions seem to hinge what constitutes
general public use on both availability, see Dow Chem., 476 U.S. at
243 n.4 (Powell, J., dissenting) (finding that a camera used to
photograph an industrial complex was a common usage despite the fact
that it "cost in excess of $ 22,000.00 and is described by the company
as the "finest precision aerial camera available'"), and on use, see
Riley, 488 U.S. at 451 (holding that when flights over the curtilage
are sufficiently rare, then they may not be reasonably anticipated);
Ciraolo, 476 U.S. at 215 (holding no expectation of privacy exists in
the curtilage when the defendant knowingly exposed his backyard "in an
age where private and commercial flight in the public airways [are]
routine").

   Following Kyllo, lower courts have followed the availability
guidelines. See Katz II, 2001 WL 1012114, at 2 n.4 (holding that the
police officer's use of "night vision binoculars" to obtain visual
images "may very well be in "general public use' such that their use"
does not constitute an illegal search). Using the search terms "search
/s general public use" on WestLaw, the phrase "general public use"
results in only one opinion - Kyllo VII, 533 U.S. at 27.

   n137. The right to a reasonable expectation of privacy in the home
is long standing. See Minnesota v. Carter, 525 U.S. 83, 101 (1998)
(Kennedy, J., concurring); Illinois v. Rodriguez, 497 U.S. 177, 190
(1990) (Marshall, J., dissenting); Minnesota v. Olson, 495 U.S. 91, 96
n.5 (1990); Florida v. Riley, 488 U.S. 445, 451 (1989); California v.
Greenwood, 486 U.S. 35, 41 (1988); Dow Chem., 476 U.S. at 238-39 n.5;
Ciraolo, 476 U.S. at 211; Karo, 468 U.S. at 722 (O'Connor, J.,
concurring); Katz I, 389 U.S. at 360 (Harlan, J., concurring).

   n138. Previously, cases that have considered the Fourth Amendment
propriety of using enhancements when conducting a search have done so
while also considering the petitioner's reasonable expectation of
privacy. See generally Riley, 488 U.S. at 451; Greenwood, 486 U.S. at
41; Dow Chem., 476 U.S. at 238-39 n.5; Ciraolo, 476 U.S. at 211; Karo,
468 U.S. at 722 (O'Connor, J., concurring); Katz I, 389 U.S. at 360
(Harlan, J., concurring).

   n139. Will the Court say that Kyllo and its progeny are to form the
future of searches aided by sense-enhancing devices, much like Miranda
and its progeny have come to be synonymous with a suspect's right not
to be coerced while in custody? If this line of thought is followed
with Kyllo, as it was with Miranda, Kyllo, like Miranda, will be
weakened to such a point that there is nearly an exception for
everything it was initially designed to prevent.

   n140. Because night scopes (night vision binoculars) can be
purchased at most hunting and survival stores, courts have found them
to be in the general public use and, in light of Kyllo, have held that
their use against the home does not constitute a search. See Katz II,
2001 WL 1012114, at 2.

   n141. This is because the Court directly stated that the rule is
designed to protect against sense-enhancing devices that are far more
sophisticated than these objects. See Kyllo VII, 533 U.S. at 37 n.4;
see also supra note 134.

   n142. See Katz II, 2001 WL 1012114, at 2 n.4 (holding that the
police officer 's use of "night vision binoculars" to obtain visual
images "may very well be "in general public use' such that their use"
does not constitute an illegal search).

   n143. "The contours of its new rule are uncertain because its
protection apparently dissipates as soon as the relevant technology is
"in general public use.'" Kyllo VII, 533 U.S. at 47 (Stevens, J.,
dissenting).

   n144. Once again, perhaps the Kyllo holding is elastic enough for
future inventions to be included within the definition of a
sense-enhancing device. See supra note 134.

   n145. Perhaps the most far-reaching question is how long will it be
until thermal imagers are considered to be in the general public use,
when over thirty-five percent of law enforcement agencies already use
thermal imagers, and institutes like the National Law Enforcement and
Corrections Technology Center further develop technology and ensure
distribution. See supra note 73.

   n146. This should suggest to most readers that having such loose
guidelines is likely to result in the same plethora of differing
opinions that were present prior to Kyllo. See supra note 136. In Katz
II, the court found that because the petitioner did not raise the
issue of whether or not the use of a thermal imager constituted a
search, the issue could not be raised on appeal. 2001 WL 1012114, at
2. In that jurisdiction, the use of a thermal imager did not
constitute a search, so the defendant did not even know that its use
could be challenged in the initial trial, despite the fact that Kyllo
was decided between the initial decision and Katz's appeal. Id.

   n147. In Dow Chemical, the Court gave weight to the fact that the
photographs at issue were similar to those taken when engaged in the
activity of mapmaking, and that anyone "with an airplane and an aerial
camera could readily duplicate them." 476 U.S at 231. One must wonder
though, whether an expectation of privacy may hinge on the exception
to the rule, rather than his or her likely expectation that their acts
constitute knowing exposure and therefore receive no constitutional
protection.

   n148. "To withdraw protection of this minimum expectation would be
to permit police technology to erode the privacy guaranteed by the
Fourth Amendment." Kyllo VII, 533 U.S. at 34. "The people in their
houses, as well as the police, deserve more precision." Id. at 39.
"The dissent argues that we have injected potential uncertainty into
the constitutional analysis by noting that whether or not the
technology is in general public use may be a factor . . . . We can
quite confidently say that thermal imaging is not "routine.'" Id. at
39-40 n.6 (internal citations omitted).

   n149. 533 U.S. 27 (2001) [hereinafter Kyllo VII].

   n150. Id. at 47 (Stevens, J., dissenting).

