Thermal Imaging Decision Contains Some Interesting Wording
...by Eric Kirk
With a recent change in the make-up of a particular Ninth Circuit Panel, the Kyllo decision was reheard and essentially reversed. However, upon review of the decision, there is some hope in the limiting wording of the decision. Basically, the application of the ruling appears to be limited to the least intrusive technology. Moreover, it suggests that one can create an expectation of privacy by insulating their home. The bad news is that it seems to sanction the violation of the privacy of neighboring non-suspects.|
After Danny Lee Kyllo let loose some information to a police informant, the police subpoenaed the utility records of Kyllo's home and determined that an unusual amount of power was being used. As the decision reads:
"At 3:20 in the morning in mid-January, from the passenger seat of a car parked on the street, Sergeant Daniel Haas of the Oregon National Guard examined the triplex of homes where Kyllo resided, with an Agema Thermovision 210 thermal imaging device. All objects emit heat, in the form of infrared radiation, which can be observed and recorded by thermal imaging devices such as the Agema 210. Specifically, thermal imagers detect energy radiated from the outside surface of objects, and internal heat that has been transmitted to the outside surface of an object, which may create a differential heat pattern."
In determining that the imager did not violate expectations of privacy, the decision distinguished as follows: "In performing it's function the Agema 210 passively records thermal emissions rather than sending out intrusive beams or rays - acting much like a camera. Using the Agema 210, Haas concluded that there was high heat loss emanating from the roof of Kyllo's home above the garage, and from one wall. Haas also noted that Kyllo's house 'showed much warmer' than the other two houses in the triplex. The results were interpreted as further evidence of marijuana production, inferring that the high levels of heat emission indicated the presence of high intensity lights used to grow marijuana indoors."
The court also found that "the device cannot and did not show any people or activity within the walls of the structure" and that it "recorded only the heat being emitted from the home."
So this decision may not allow for the warrantless use of all thermal-imaging technology, specifically if it does in fact more directly reveal what is going on inside.
The decision also states that Kyllo had no subjective expectation of privacy because "he took no affirmative action to conceal the waste heat emissions created by the heat lamps needed for a successful indoor grow." This suggests that measures such as insulation of a garage or workshop area might raise at least the subjective expectation of privacy. There are many activities that require heat, as pointed out by dissenting Justice Noonan: "The use of a sauna in a sauna room; the making of ceramics in a kiln in the basement; the hothouse cultivation of orchids, poinsettias or other plants in a domestic greenhouse."
Noonan also ridiculed the idea that the particular technology was less intrusive because it was less effective in determining indoor activities except by implication based upon comparative heat detection. The Agema 210 does not even measure the heat, but compares it with the heat of other buildings (thus violating their privacy as well). It says nothing about the level of insulation in the subject building or comparative buildings. Basically, it's like arguing that a search wasn't a search because an officer blundered onto the evidence.
Noonan pulled no punches in his dissent: "The first reaction when one hears of the Agema 210 is to think of George Orwell's 1984. Although the dread date has passed, no one wants to live in a world of Orwellian surveillance. On the hearing of this case on its first appeal we were prompt to express concern as to whether the Agema 210 could "detect sexual activity in the bedroom" and to state that a technology revealing sexual activity was impermissible. United States v. Kyllo, 37 f.3d 526, 530 (9th Cir. 1994). On this appeal the majority does not deviate from this position while it views the Orwellian dangers as speculative and at most potential."
The rehearing may also be challenged on procedural grounds.
At any rate, very little in the decision indicates that the police may randomly compare "hot spots." The police had some basis to believe that Kyllo was growing marijuana prior to the use of the imager. The decision thus does not address whether some reasonable basis for a belief that a crime has been committed within the building is required to use the technology. Of some concern is the fact that the violation of the privacy of neighbors for comparative readings doesn't seem to be an issue. It may be that the defendant simply lacks standing to assert the rights on the behalf of the neighbors.
In short, the decision leaves open a number of questions to be determined in future cases. Unless something reverses the trend of the appointment of judges apathetic to privacy rights, the outlook isn't good.