Thermal imaging devices detect infrared radiation that is invisible to the naked eye. The devices then convert that infrared radiation into images based on relative warmth. Thus, the device can show areas of a dwelling that are emitting heat. Law enforcement sometimes uses thermal imaging technology to determine if an individual is cultivating marijuana by using high-heat growing lamps within a structure. In Kyllo v. United States (2001), the seminal case on the issue of thermal imaging, the U.S. Supreme Court held that the use of thermal imaging constitutes a search within the meaning of the Fourth Amendment to the Constitution. Thus, thermal imaging conducted without a search warrant is unconstitutional.
The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” To determine if a warrantless search violates the Fourth Amendment, a court must determine (1) if the questioned action constitutes a search within the meaning of the Fourth Amendment, (2) if an individual has a reasonable expectation of privacy in the place searched, and (3) if the search is reasonable, and in turn constitutional, given the factual scenario surrounding the occurrence of the search. In making this analysis, a court must balance the privacy interests of individuals against law enforcement’s need to conduct warrantless searches in their efforts to thwart criminal activity.
Kyllo v. United States
In Kyllo, law enforcement personnel used thermal imaging to determine whether an individual was using high-intensity lights to grow marijuana indoors. The thermal imager revealed that the individual’s garage and one side of his house were emanating a disproportionate amount of heat. Using this information, law enforcement procured a warrant to search the home in question. The issue in Kyllo was whether the initial use of the thermal imaging device constituted a search under the meaning of the Fourth Amendment and, if so, whether the search was permissible. The Supreme Court held that the use of a thermal imager does constitute a search and that such a search is improper under the facts presented in Kyllo.
Writing for the court, Justice Antonin Scalia first assessed whether Kyllo had a reasonable expectation of privacy in his home and the area subjected to search. The court quickly concluded that Kyllo’s home did enjoy the protections of the Fourth Amendment stating, “[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” The court next turned to the issue of thermal imaging and whether the use of such technology constituted a search. The court examined two factors in its analysis: (1) whether the technology used was available to the general public, and (2) whether the use of thermal imaging revealed details of the home that would have previously been unknowable without physical intrusion.
- Greenstein, Nicole. “Privacy and the Law: How the Supreme Court Defines a Controversial Right.” Time (July 31, 2013). http://nation.time.com/2013/08/01/privacy-and-the-law-how-the-supreme-court-defines-a-controversial-right/slide/thermal-imaging-devices (Accessed November 2013).
- Kyllo v. United States, 533 U.S. 27 (2001).
- Legal Information Institute, Cornell University Law School. “Kyllo v. United States.” http://www.law.cornell.edu/supct/html/99-8508.ZS.html (Accessed November 2013).
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