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Jewish World Review June 18, 2001 / 28 Sivan, 5761

George Will

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Consumer Reports

Not too strict to apply justice -- DANNY KYLLO was not growing rhododendrons in his home on Rhododendron Drive in Florence, Ore., in 1992. He was growing marijuana, which, when cultivated indoors, requires high-intensity lamps that generate considerable heat and, in this instance, generated a Supreme Court case.

Last Monday's decision merits attention because the opinion for the closely divided (5-4) court was written by Justice Antonin Scalia. He is commonly, and not improperly, called a "strict constructionist." He describes himself as an "originalist," meaning that he construes the Constitution by reading the text as its words were used and understood at the time by those who wrote them.

The logic and structure of the document illuminates the original meaning of those words. And Scalia's originalism was no impediment to ruling that Kyllo's Fourth Amendment right to protection against unreasonable searches was violated by a technology never envisioned by the Constitution's authors. Dissenting from his civil libertarian opinion were three more-or-less conservative justices (Rehnquist, O'Connor and Kennedy) and the court's most liberal justice, Stevens.

Acting on information from informants and utility records, law enforcement officers used an Agema Thermovision 210 thermal imager to detect that the roof over Kyllo's garage and a side wall of his home were unusually hot. Using that evidence, they acquired a search warrant, found more than 100 marijuana plants and arrested Kyllo. He said the evidence was illegally obtained because the warrant was issued partly on the basis of the thermal imaging results, and the imaging itself constituted a search conducted without a warrant, in violation of the Fourth Amendment protection against unreasonable searches.

The amendment was written in the context of the English common law principle that "the eye cannot by the laws of England be guilty of a trespass." However, more than the law enforcement officers' eyes were involved in the scan of Kyllo's home that was conducted from the street and took only a few minutes. The question for the court, as Scalia posed it, was: How much technological enhancement of ordinary perception from such a vantage point, if any, is too much?

Scalia, joined by Souter, Thomas, Ginsburg and Breyer, stressed that the thermal imaging technology used is "a device that is not in general public use" and a homeowner has a reasonable expectation of privacy for activities that could not be detected without technologically enhanced eavesdropping. But, then, such eavesdropping is, in a sense, a contradiction in terms.

There often is wisdom in the logic of common language, so notice the derivation of the word that would commonly be used to describe what the government was doing: "eavesdropping." The late Justice Hugo Black noted that people surreptitiously seeking information used to lurk in the "eavesdrop," in the shadow under a building's eave. This may not have been nice, but neither was it invasive. It was the equivalent of surveillance by the "naked eye" -- in this example, the officers' eyes unassisted by any sense-enhancing technology.

Privacy is neither an easily identifiable thing, like the Grand Canyon, nor an absolute value. However, the concern of the Constitution's Framers for protecting privacy began by assuming that privacy of the home is the most precious and most easily defined sort. In Kyllo's case, Scalia offered this "originalist" criterion: What preserves the "degree of privacy against government that existed when the Fourth Amendment was adopted"? Scalia and four colleagues concluded, "On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search."

Stevens, writing for the three other dissenters, sided with law enforcement, accusing the majority of abandoning "judicial restraint" as it overturned the 9th Circuit, the home of liberal judicial activism, which had ruled against Kyllo. Stevens argued that searches of "property in plain view" are presumptively reasonable. Scalia responded that it is "simply inaccurate" to say, as the dissenters did, that the thermal imaging did not obtain information about the home's interior, the most protected realm of intimacy.

Congress is about to step onto the dark and bloody ground of the judicial confirmation process. Jurisprudential theories -- "strict construction," "originalism," the Constitution as a "living document" that "evolves" to meet "new problems" -- will be bandied. Some senatorial and other critics of President Bush's judicial nominees will portray those nominees as too much like Scalia, and hence too strict in their "originalist" constitutional construction to understand the applicability of the document to modern conditions. The decision in the Kyllo case should, but probably will not, cause these critics second, or perhaps first, thoughts.

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