Return to the Syllabus

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* J.D. Candidate, 2000, Georgetown University Law Center; B.A., 1997, University

at Albany, State University of New York; Senior Articles and Notes Editor,

American Criminal Law Review, 1999-2000. The author wishes to thank Professors

Ivan K. Fong, Jonathan Massey, and L. Michael Seidman for their assistance in

writing this Note, Staci I. Levin for her assistance and support, and his family

for their love and support.

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SUMMARY:

... This Note explores the scope of that right, particularly the various methods

that have been used to determine at what point the right attaches, or when a

search has occurred. ... IS IT A SEARCH? KATZ AND THE REASONABLE EXPECTATION OF

PRIVACY STANDARD ... The property-based conception of Fourth Amendment rights

embodied in Olmstead entailed many flaws; this became obvious as police

surveillance technology continued to advance during the forty years the decision

was in effect. ... The Penny-Feeney court held that defendants had failed to

manifest an actual (subjective) expectation of privacy in the "heat waste" which

they had voluntarily allowed to emanate from their home. ... Taking a

forward-looking approach to Forward-Looking Infrared Radar, the Ninth Circuit

stressed that, even if the particular device used against the defendant was

relatively unsophisticated, surveillance technology advances so quickly that

courts must step in early and define the limits of the government's power to

invade citizens' privacy. ... The "reasonable expectation of privacy" standard

promulgated in Katz v. United States, when viewed along with the decisions

interpreting that standard, can be a robust protector of the rights of average

citizens, preventing the government from, among other things, using high-tech

surveillance devices to peer through their walls in the absence of judicial

intervention in the form of a warrant. ...

TEXT:

[*127] I. INTRODUCTION

The Fourth Amendment to the Constitution guarantees "the right of the people to

be secure in their persons, houses, papers and effects against unreasonable

searches and seizures." n1 This Note explores the scope of that right,

particularly the various methods that have been used to determine at what point

the right attaches, or when a search has occurred. It focuses in particular on

the courts' response to developments in surveillance technology used by

law-enforcement agencies to combat the proliferation of illegal drugs. Such

technologies have presented a [*128] challenge to scholars, as they require

the application of a constitutional guarantee written over two centuries ago to

modern devices which give police the power to see through the walls of people's

homes and detect minute amounts of contraband. Part II of this Note discusses

the historical development of Fourth Amendment jurisprudence over the past

seventy years, introducing the major developments in the field, particularly

Olmstead v. United States n2 and Katz v. United States. n3 It goes on to provide

critiques of Katz and some of the cases following the Katz doctrine. Part III

discusses a number of technologically advanced surveillance tools, some of which

are in use by law-enforcement today, and assesses the applicability of the

Fourth Amendment to their use. Part IV introduces and discusses one solution

which has been proposed to the problem of interpreting the Fourth Amendment in

the technological age. Finally, a solution is proposed in Part V which

compensates for many of the problems in existing Fourth Amendment jurisprudence

by tying the Amendment's applicability to federal, state, and local law.

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n1 U.S. CONST. amend. IV.

n2 277 U.S. 438 (1928).

n3 389 U.S. 347 (1967).

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II. IS IT A SEARCH? KATZ AND THE REASONABLE EXPECTATION OF PRIVACY STANDARD

In the absence of a search (or seizure), the Fourth Amendment is not implicated

by police action. n4 For nearly fifty years, beginning in 1928 with Olmstead v.

United States, n5 the Supreme Court of the United States premised the existence

of a search on whether a physical trespass had occurred under local property

law. n6 In Katz v. United States, n7 largely in response to technological

advances in police surveillance techniques, n8 the Supreme Court promulgated a

new standard for determining when a search has occurred, bringing Fourth

Amendment jurisprudence into the twentieth century by basing the analysis on

privacy interests. n9

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n4 See Olmstead v. United States, 277 U.S. 438, 464 (1928). ("The [Fourth]

Amendment does not forbid what was done here. There was no searching.").

n5 See id.

n6 See id. at 465.

n7 389 U.S. 347 (1967).

n8 See Katz, 389 U.S. at 352 (acknowledging "the vital role that the public

telephone has come to play in private communication"); cf. Olmstead, 277 U.S. at

473 (Brandeis, J., dissenting) (describing technological advances such as

wiretaps as "means far more effective than stretching on the rack" for obtaining

disclosure in violation of the Fourth Amendment's protections).

n9 See Katz, 389 U.S. at 351-52.

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A. Olmstead v. United States: Property-Based Literalism and the Fourth Amendment

The property-based conception of Fourth Amendment rights embodied in Olmstead

entailed many flaws; this became obvious as police surveillance technology

[*129] continued to advance during the forty years the decision was in effect.

n10 Adhering firmly to the precise language of the Amendment, the Court in

Olmstead held that the only interests protected by the Fourth Amendment were

those in tangible objects, such as papers, houses, and other physical

possessions, n11 and that those possessions were protected only against physical

invasions. n12 Overheard conversations and other types of communicative

evidence, therefore, had no specific protection, unless obtained in violation of

local property law. n13

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n10 See generally Morgan Cloud, The Fourth Amendment During the Lochner Era:

Privacy, Property, and Liberty in Constitutional Theory, 48 STAN. L. REV. 555

(1996); Thomas K. Clancy, What Does the Fourth Amendment Protect: Property,

Privacy, or Security?, 33 WAKE FOREST L. REV. 307, 316-20 (1998).

n11 See Olmstead, 277 U.S. at 464-65 (holding Fourth Amendment not implicated by

wiretap effected without entry into defendant's home or office).

n12 See id. at 466.

n13 See id.

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The Olmstead decision thus embodies what Professor Cloud calls "property-based

literalism," the theory that no search occurs where there is no physical

trespass into a "constitutionally protected area" such as the home or office.

n14 The primary criticism of this approach is that it required courts to base

their decisions on what would seem to be insignificant, even irrelevant,

distinctions. Compare, for example, Goldman v. United States, n15 in which

police's officers' eavesdropping was held not to be a search because their

microphone had been placed against a wall on the side opposite the defendant's

office, with Silverman v. United States, n16 in which a constitutional violation

was found where police used a foot-long "spike-mike" to penetrate a party wall,

entering (trespassing on) the private property of the defendant. n17

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n14 See Cloud, supra note 10, at 610.

n15 316 U.S. 129, 134-35 (1942) (finding no trespass, and therefore no search,

where microphone was placed against wall to detect conversations in adjacent

office).

n16 365 U.S. 505 (1961).

n17 See id. at 511-12.

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B. Katz v. United States: A Modern Approach

Olmstead's trespass-based theory of Fourth Amendment jurisprudence was

ultimately rejected by the Supreme Court in Katz v. United States. Charles Katz

was a "prolific basketball handicapper" n18 suspected by the Federal Bureau of

Investigation of illegally transmitting wagering information across state lines.

Without obtaining a warrant, FBI agents attached "an electronic listening and

recording device" to the outside of the public phone booth from which Katz was

known to place such calls, and recorded the illegal conversations which ensued.

n19 While both Katz and the federal government phrased their arguments to the

Supreme Court in terms of "constitutionally protected areas," the phraseology

[*130] prescribed in Olmstead, the Court "declined to adopt [that] formulation

of the issues." n20 Proclaiming that "the Fourth Amendment protects people, not

places," n21 Justice Stewart, for the Court, wrote:

What a person knowingly exposes to the public, even in his own home or office,

is not a subject of Fourth Amendment protection. But what he seeks to preserve

as private, even in an area accessible to the public, may be constitutionally

protected. . . . One who occupies [a phone booth], shuts the door behind him,

and pays the toll that permits him to place a call is surely entitled to

assume that the words he utters into the mouthpiece will not be broadcast to

the world. To read the Constitution more narrowly is to ignore the vital role

that the public telephone has come to play in private communication. n22

The rule that Katz eventually came to stand for, however, is Justice Harlan's

"reasonable expectation of privacy" standard, embodied in the two-prong test of

his concurring opinion. n23

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n18 Daniel B. Yeager, Search, Seizure and the Positive Law: Expectations of

Privacy Outside the Fourth Amendment, 84 J. CRIM. L. & CRIMINOLOGY 249, 250

(1993).

n19 Katz, 389 U.S. at 348.

n20 Id. at 350.

n21 Id. at 351.

n22 Id. at 351-52 (citations omitted).

n23 See id. at 361 (Harlan, J., concurring).

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A search is deemed to have occurred when (1) the government conduct has

transgressed a citizen's subjective manifestation of a privacy interest; and (2)

the privacy interest invaded is one that society is prepared to accept as

legitimate. n24 This "reasonable expectation of privacy" test has come to be the

means used for determining the scope of the Fourth Amendment's protections. n25

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n24 See id.

n25 See, e.g., Smith v. Maryland, 442 U.S. 735, 740 (1979) (noting that "the

application of the Fourth Amendment depends on whether the person invoking its

protection can claim a 'justifiable,' a 'reasonable,' or a 'legitimate

expectation of privacy'").

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This ruling constituted a long overdue recognition that Olmstead's strict

interpretation of the plain language of the Fourth Amendment was insufficient,

in light of continuing advances in police surveillance technology, to protect

those interests which the Framers had sought to protect. n26 The Fourth

Amendment was adopted in response to the use of general warrants and writs of

assistance, by which British soldiers conducted wide-scale searches of

colonists' homes and private affairs for contraband. n27 The Framers sought to

curtail these abuses by establishing a minimum threshold for police intrusion

into citizens' privacy. n28 But Olmstead, by limiting the Amendment's scope to

property law, confounded these aims. Justice Brandeis, in stinging dissent from

the Olmstead majority, reasoned [*131] that, because it was a constitution

that the Court was expounding, which was to be applied to police tactics and

equipment which did not exist at the time the Constitution was drafted, the

Court had to "adopt a construction susceptible of meeting modern conditions."

n29

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n26 See generally NELSON B. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH

AMENDMENT TO THE UNITED STATES CONSTITUTION 51-78 (1937) (discussing history

surrounding adoption of Fourth Amendment).

n27 See Ken Gormley, One Hundred Years of Privacy, 1992 WIS. L. REV. 1335,

1358-59 (citing Boyd v. United States, 116 U.S. 616, 624-29 (1886)).

n28 See Michael A. De Vito & Stuart M. Flamen, "FLIR"ting With Danger: A Fourth

Amendment Analysis of Infrared Imaging, 10 ST. JOHN'S J. LEGAL COMMENT. 651, 654

(1995) (discussing substantive and procedural limitations placed on government's

power to search by Fourth Amendment).

n29 Olmstead, 277 U.S. at 472 (Brandeis, J., dissenting).

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The "reasonable expectation of privacy" test embodied in Katz is just such a

construction; it recognizes that individuals have a panoply of rights, beyond

those afforded by private property, which the Fourth Amendment was designed to

protect. Indeed, the Court's Fourth Amendment jurisprudence in the years

following Katz gave a broad reading to the right to privacy, indicating that the

Fourth Amendment had become a vigorous source of protection for individual

interests. n30 In Delaware v. Prouse, n31 for example, the Court recognized an

increased expectation of privacy for automobile passengers, observing that

people "find a greater sense of security and privacy in traveling in an

automobile than they do in exposing themselves by pedestrian or other modes of

travel." n32

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n30 See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 339 (1985) (finding that

schoolchildren have reasonable expectation of privacy in non-contraband personal

property, and that such right to privacy is not necessarily waived by entering

onto school grounds); O'Connor v. Ortega, 480 U.S. 709, 718 (1980) (finding that

government employees may have reasonable expectation of privacy in desks and

file cabinets located on government property).

n31 440 U.S. 648 (1979).

n32 Id. at 662.

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C. Critiques of Katz and Its Progeny

Unfortunately, as members of the Warren Court retired and were replaced by more

conservative appointees, the broad reading given this privacy analysis began to

be turned on its head. In recent years, the Court has tended to find that "the

effect of modern life, with its technological and other advances, serves to

eliminate or reduce a person's justified expectation of privacy." n33 For

example, in Dow Chemical Co. v. United States n34 the Court found no violation

of the Fourth Amendment where the Environmental Protection Agency engaged in

warrantless aerial photographing of Dow Chemical's Michigan manufacturing plant.

n35 Dow had maintained elaborate ground security, which barred public view of

its plant from the ground, and had investigated any noncommercial flights

(including the EPA's) which flew low over its property and which Dow felt could

compromise its trade secrets. n36 Despite these attempts at secrecy, which would

seem to evidence a [*132] subjective expectation of privacy, the Court found

that because any person with access to a camera and an airplane could have taken

the same photographs, it was unreasonable, under the second prong of Justice

Harlan's test, for Dow to expect that its plant would remain private. n37

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n33 Clancy, supra note 10, at 335. Examples of this trend include California v.

Ciraolo, 476 U.S. 207, 215 (1986), in which the Court found no reasonable

expectation of privacy from aerial surveillance in an age where commercial

flights are routine, and Smith v. Maryland, 442 U.S. 735, 744 (1979), in which

the Court found no reasonable expectation of privacy in the numbers dialed on a

telephone because such information is voluntarily conveyed and made available to

telephone company personnel.

n34 476 U.S. 227 (1986); see also Clancy, supra note 10, at 335 (discussing Dow

Chemical).

n35 See id. at 231.

n36 See Seth H. Ruzi, Comment, Reviving Trespass-Based Search Analysis Under the

Open View Doctrine: Dow Chemical Co. v. United States, 63 N.Y.U. L. REV. 191,

193-94 (1988) (describing security measures taken by Dow Chemical at Michigan

plant).

n37 See Dow Chemical, 476 U.S. at 231.

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In addition to finding that new technologies reduce expectations of privacy, the

Court has also tended to limit the reach of the Fourth Amendment through what

Professor Clancy calls an "empirical approach," n38 which examines whether an

act is observable by the general public and concludes, if so, that it is

unreasonable to expect privacy in that act. n39 As a result, government

regulation has been found to reduce (if not eliminate altogether) an

individual's expectation of privacy. n40 In New York v. Burger, n41 for example,

the Court held that an automotive junk dealer, who is required by statute to

keep a record for police inspection of all automobiles and parts in his

possession, has a reduced expectation of privacy in his business. n42 He

therefore had no constitutional objection to a warrantless (or suspicionless)

search of his junkyard. n43 The Court found, in effect, that the government may

diminish through legislation the scope of protection afforded by the

Constitution, eliminating various expectations of privacy at will. This would

seem to violate the core principle of constitutional law, that the legislature

may not alter the Constitution by an ordinary statute. n44 As Justice Stewart

explained, "the mandates of the Fourth Amendment demand heightened, not lowered,

respect, as the intrusive regulatory authority of government expands." n45

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n38 Clancy, supra note 10, at 335-36.

n39 See id. (citing California v. Greenwood, 486 U.S. 35 (1988)). In Greenwood,

the Court held that there is no reasonable expectation of privacy in trash bags

left at the curb for pick-up, as those bags are "readily accessible to . . .

scavengers, snoops, and other members of the public." See Clancy, supra note 10,

at 336.

n40 See Clancy, supra note 10, at 336 (citing New York v. Burger, 482 U.S. 691

(1987)).

n41 482 U.S. 691 (1987).

n42 See id. at 703-04.

n43 See id.

n44 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (holding that "it

is a proposition too plain to be contested, that the constitution controls any

legislative act repugnant to it. . . . [A] legislative act contrary to the

constitution is not law.").

n45 Donovan v. Dewey, 452 U.S. 594, 612 (1981) (Stewart, J., dissenting).

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Another common criticism of Katz's reasonable expectation of privacy test is

that it is circular; as the argument goes, the Supreme Court protects only those

expectations that are reasonable, while the only expectations that are

reasonable are those which the Supreme Court is willing to protect. n46 The

Court has also been criticized because the first prong of Justice Harlan's test,

that involving the [*133] subjective manifestation of the expectation of

privacy, n47 has gone largely ignored; indeed, it is not practicable if one is

to base constitutional criminal procedure on the type of bright-line rules

necessary for effective police work. n48 For example, the rule of Katz, that

there is a reasonable expectation of privacy in telephone calls made from a

public phone booth, is unequivocal. Even if a particular citizen subjectively

expects that the police are monitoring his calls, the Fourth Amendment prohibits

the police from doing so without a warrant. n49 Just as ignorance of the law is

no defense to a criminal charge, ignorance of one's right to privacy does not

effect a waiver thereof. In practice, the first prong of Justice Harlan's test

is only used by courts in situations where a reasonable expectation of privacy

is found not to exist. n50

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n46 See generally Bailey H. Kuklin, The Plausibility of Legally Protecting

Reasonable Expectations, 32 VAL. U. L. REV. 19, 32-38 (1997). Professor Kuklin

believes that, while this circularity cannot be eliminated altogether, the

relationship between law and expectations can be viewed as a "mutual feedback

mechanism." Id. at 33. "Reasonable expectations affect the state of the law, and

the state of the law affects reasonable expectations." Id. at 33-34 (emphasis

added).

n47 See Katz, 389 U.S. at 361 (Harlan, J., concurring).

n48 See Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L.

REV. 349, 384 (1974) (arguing that a person's subjective expectation of privacy

can "neither add to, nor can its absence detract from, an individual's claim to

Fourth Amendment protection").

n49 See Katz, 389 U.S. at 359 (holding that obtaining warrant is "constitutional

precondition of the kind of electronic surveillance involved in this case").

n50 See, e.g., California v. Greenwood, 486 U.S. at 41 (holding that "the police

cannot reasonably be expected to avert their eyes from evidence of criminal

activity that could have been observed by any member of the public"); United

States v. Penny-Feeney, 773 F. Supp. 220, 226 (D. Haw. 1991) (finding that

defendants did not exhibit subjective expectation of privacy in "heat waste"

intentionally vented from indoor marijuana growing operation) aff'd on other

grounds sub nom United States v. Feeney, 984 F.2d 1053 (9th Cir. 1993). For more

on "heat waste" doctrine, see infra Section III.A.1.

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III. HIGH-TECH SURVEILLANCE TOOLS

A number of new surveillance technologies now in development or in use by

law-enforcement officials raise interesting questions about the scope of the

Fourth Amendment and highlight the failings of Katz, which seem to increase with

every passing year. These technologies include Forward-Looking Infrared Radar

(or "FLIR"), n51 gas chromatography and mass spectrometry, n52 and concealed

weapon detectors such as "Millivision," a new surveillance device which has been

described as giving the police something akin to Superman's "x-ray vision." n53

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n51 See generally Doyle Baker, More Heat Than Light: Judicial Discord Regarding

Thermal Heat Imagery and the Fourth Amendment, 32-FEB PROSECUTOR 16 (1998)

(discussing application of Fourth Amendment to FLIR technology); De Vito, supra

note 28 (same); Douglas A. Kash, Prewarrant Thermal Imaging as a Fourth

Amendment Violation: A Supreme Court Question in the Making, 60 ALB. L. REV.

1295 (1997) (same); Christopher Bannerman, Note, Forward Looking Infrared Radar

and the Fourth Amendment, 16 QUINNIPIAC L. REV. 419 (1997) (same); Mark J.

Kwasowski, Note, Thermal Imaging Technology: Should its Warrantless Use be

Allowed in Residential Searches?, 3 TEX. WESLEYAN L. REV. 393 (1997) (same);

Daniel J. Polatsek, Note, Thermal Imaging and the Fourth Amendment: Pushing the

Katz Test Towards Terminal Velocity, 13 J. MARSHALL J. COMPUTER & INFO. L. 453

(1995) (same); Scott J. Smith, Note, Thermal Surveillance and the Extraordinary

Device Exception: Redefining the Scope of the Katz Analysis, 30 VAL. U.L. REV.

1071 (1996) (same).

n52 See generally 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 (1997) (describing gas chromatography and mass spectrometry,

and legal implications thereof).

n53 Laura B. Riley, Comment, Concealed Weapon Detectors and the Fourth

Amendment: The Constitutionality of Remote Sense-Enhanced Searches, 45 UCLA L.

REV. 281, 283 (1997) (describing concealed weapon detection technology and legal

implications thereof); See also George Dery, III, Remote Frisking Down to the

Skin: Government Searching Technology Powerful Enough to Locate Holes in Fourth

Amendment Fundamentals, 30 CREIGHTON L. REV. 353 (1997) (discussing Millivision

and other surveillance devices).

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[*134] A. Forward-Looking Infrared Radar ("FLIR")

Thermal-energy detection, via Forward-Looking Infrared Radar devices, is one of

the newest technological tools in the government's arsenal used to identify and

eliminate illegal indoor cultivation of marijuana. n54 The high-intensity lamps

required for indoor growing operations can generate temperatures that exceed 150

degrees Fahrenheit; exhaust fans are thus necessary to reduce the temperature in

the "grow rooms" to that which is optimum for growing marijuana, about 60 to 70

degrees. n55 Government drug enforcement agents have in recent years begun to

use the FLIR, a hand held device which uses optical electronic sensors to detect

temperature differences as small as one-half degree Fahrenheit, at distances up

to a quarter mile, n56 to locate such growing operations. n57 The FLIR, as the

court in United States v. Penny-Feeney noted, is a passive, "non-intrusive"

device; n58 that is, it does not send out any pulse, ray, or beam into the

structure being monitored. Rather, the FLIR is used to target and measure

emanating heat, or "heat waste" as some courts have termed it, n59 which can be

done from well beyond the curtilage of the home being surveyed. n60 The device,

which records its measurements on videotape, can be used to detect heat

emanating from any source in a structure, including kitchen and bathroom

appliances and sexual activity. n61

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n54 See Polatsek, supra note 51, at 453.

n55 See Kash, supra note 51, at 1296.

n56 See id. at 1297-98.

n57 See United States v. Penny-Feeney, 773 F. Supp. at 223 (discussing police

officer who had used FLIR to detect marijuana growing operations "15 to 20

times"). Penny-Feeney was the first case in the United States to address the

applicability of the Fourth Amendment to warrantless FLIR use. See Kash, supra

note 51, at 1302.

n58 Penny-Feeney, 773 F. Supp. at 223.

n59 Id. at 226.

n60 See Kash, supra note 51, at 1298; cf. Oliver v. United States, 466 U.S. 170,

171 (1984) (holding that there is no reasonable expectation of privacy in "open

fields" beyond the curtilage of one's home).

n61 See United States v. Kyllo, 140 F.3d 1249, 1254-55 (9th Cir. 1998)

(discussing "intimate details" which can be revealed by FLIR).

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Those courts that have addressed the issue of whether a warrantless use of FLIR

constitutes a search under the Fourth Amendment have reached divergent results.

Four federal courts of appeals have found that such use does not violate a

reasonable expectation of privacy; n62 two circuits have held that it does. n63

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n62 See United States v. Ishmael, 48 F.3d 850, 857 (5th Cir. 1995) (finding no

Fourth Amendment violation where FLIR was used in "open field"; United States v.

Myers, 46 F.3d 668, 669-70 (7th Cir. 1995) (holding that thermal imaging does

not constitute "search" under Fourth Amendment); United States v. Pinson, 24

F.3d 1056, 1058 (8th Cir. 1994) (same); United States v. Ford, 34 F.3d 992, 997

(11th Cir. 1994) (same).

n63 See United States v. Kyllo, 140 F.3d 1249, 1254 (9th Cir. 1998) (finding

reasonable expectation of privacy where defendant moved marijuana-growing

operation inside his house because FLIR device was capable of revealing intimate

details); United States v. Cusumano, 67 F.3d 1497, 1506 (10th Cir. 1995)

(holding that warrantless use of thermal imager on home violates Fourth

Amendment), vacated on other grounds, 83 F.3d 1247 (10th Cir. 1996).

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[*135] 1. The Penny-Feeney "Heat Waste" Approach

Most courts that have found the use of FLIR not to constitute a search have done

so following the line of reasoning of the District Court of Hawaii in

Penny-Feeney. n64 While the Penny-Feeney decision itself has been overruled by

the Ninth Circuit, n65 it remains important because it originated the reasoning

that has been used by the Seventh, Eighth, and Eleventh Circuits. n66 The

Penny-Feeney court held that defendants had failed to manifest an actual

(subjective) expectation of privacy in the "heat waste" which they had

voluntarily allowed to emanate from their home. n67 Comparing this "voluntary"

emanation to the placing of garbage bags outside one's home, the court pointed

out that "both cases involve a homeowner's disposing of waste matter in areas

exposed to the public." n68 Reasoning that thermal energy detection is

non-intrusive, the Penny-Feeney court further analogized the use of FLIR to the

use of drug-sniffing canines, n69 which the Supreme Court held in United States

v. Place n70 not to constitute a search. n71 This analogy, which has been used

by a number of courts in upholding the warrantless use of FLIR, n72 is inapt, as

it ignores the reasoning behind the Place decision.

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n64 Penny-Feeney, 773 F. Supp. at 226-28.

n65 See Kyllo, 140 F.3d at 1254.

n66 See Myers, 46 F.3d at 669-70; Pinson, 24 F.3d at 1058; Ford, 34 F.3d at 997.

n67 See Penny-Feeney, 773 F. Supp. at 227. The court held that the defendants

"in no way attempted to impede [the heat's] escape or assert dominion over it,"

and that, in fact, "they [had] voluntarily vented [the heat]." Id. at 226.

n68 Id. at 226 (citing California v. Greenwood's holding that there is no

reasonable expectation of privacy in trash bags left at curb for pick-up). For a

discussion of Greenwood, see supra note 39 and accompanying text.

n69 See id.

n70 462 U.S. 696 (1983).

n71 See id. at 707.

n72 See, e.g., Pinson, 24 F.3d at 1059.

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Place is premised on the fact that drug sniffing dogs, when they sniff suspects'

luggage, can only detect contraband. n73 Such a sniff is not a search because

there can be no legitimate expectation of privacy in illegal activity, including

possession of contraband; as Justice O'Connor wrote in Place, "no other

investigative procedure . . . is so limited in . . . the content of the

information revealed." n74 Penny-Feeney's reliance on Place is therefore

misplaced, as the FLIR, unlike a dog-sniff, is capable of revealing much that is

not criminal. The Penny-Feeney court, comparing the odor of narcotics to heat

waste, reasoned that the two are similar "since they constitute a physical fact

indicative of possible crime, not protected communications." n75 However, the

odor of marijuana constitutes evidence of a possible crime in a way that heat,

which is naturally and automatically emitted by all human beings, does not.

While the odor of marijuana is almost [*136] always evidence of a crime, only

a tiny percentage of the heat detectable by a FLIR device is. n76 Thus,

Penny-Feeney's assertion that heat is potential evidence of a crime places a

sinister cast on a by-product of the daily life-functions of every American.

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n73 See Place, 462 U.S. at 707 (holding canine sniff not to constitute search

under Fourth Amendment).

n74 Id.

n75 Penny-Feeney, 773 F. Supp. at 227.

n76 See, e.g., Kyllo, 140 F.3d at 1254-55 (discussing "intimate details" which

can be revealed by FLIR, including sexual activity and use of kitchen and

bathroom appliances).

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2. United States v. Ishmael's Open Field Approach

Only one circuit has found warrantless use of FLIR not to constitute a search

using a rationale other than Penny-Feeney's. The Fifth Circuit, in United States

v. Ishmael, n77 held that the defendants, who operated an indoor marijuana

growing operation on their land, had exhibited a subjective expectation of

privacy, noting that "the law of physics, and not the [defendants'] failure to

contain, controlled the emission of heat from the [growing structure]." n78 This

expectation, however, was not one which society was prepared to recognize as

reasonable, because the "grow-room" was not in the defendants' house, but in a

structure several hundred yards away in an "open field." n79 Thus, under the

rule stated by the Supreme Court in Oliver v. United States, n80 even a

personal, physical intrusion by police officers would not have violated a

reasonable expectation of privacy. n81 Other than its holding that warrantless

FLIR use can violate the first prong of the Katz test, the Ishmael decision has

little precedential value in answering the question of whether the use of FLIR

to monitor people in their homes violates the Fourth Amendment.

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n77 48 F.3d 850 (5th Cir. 1995).

n78 Id. at 854.

n79 Id. at 851.

n80 466 U.S. 170 (1984).

n81 See id. at 182-83.

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3. United States v. Kyllo and United States v. Cusumano: The Home

The Ninth and Tenth Circuits have both held that the use of FLIR, at least on

people's homes, can infringe on their reasonable expectations of privacy. n82 In

the most recent case, the Ninth Circuit found that the very act of conducting a

marijuana-cultivation operation indoors was strong evidence of a subjective

expectation of privacy, satisfying the first prong of the Katz test. n83

Rejecting the "heat waste" analysis used in Penny-Feeney, the Court held that

the pertinent inquiry was not "whether . . . the Defendants retain an

expectation of privacy in the 'waste heat' radiated from their home but, rather,

whether they possess an expectation of privacy in the activities, intimate or

otherwise, that they pursue within their home." n84

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n82 See Kyllo, 140 F.3d at 1254; Cusumano, 67 F.3d at 1506.

n83 See Kyllo, 140 F.3d at 1253 (following California v. Ciraolo, 476 U.S. at

211, which held that marijuana grower manifested subjective expectation of

privacy by merely enclosing backyard crop within double fence).

n84 Kyllo, 140 F.3d at 1253 (quoting Cusumano, 67 F.3d at 1502).

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[*137] Moving on to the second prong of the Katz test, the Ninth Circuit held

that the subjective expectation of privacy is one that society is prepared to

recognize as reasonable. n85 In doing so, the Ninth Circuit relied on the strong

protection that the Supreme Court has traditionally reserved for the home n86

and a close examination of the capabilities of the FLIR device, which it found

to be considerable. Specifically, the Court focused on a videotaped

demonstration of a FLIR device's output, which showed a man who was inside his

house waving his hand. The Ninth Circuit also seemed to be impressed by a claim

in one device's sales brochure that it could "easily distinguish between a

domestic animal and a human being" at a range of 1500 feet. n87 Relying on the

Supreme Court's decision in United States v. Karo, n88 which held that a

tracking device which had been placed in a can of chemicals and then monitored

after the defendant brought it into his home, had effected a search, n89 the

Ninth Circuit concluded that "the details unveiled by [FLIR] are sufficiently

'intimate' to give rise to a Fourth Amendment violation." n90 Taking a

forward-looking approach to Forward-Looking Infrared Radar, the Ninth Circuit

stressed that, even if the particular device used against the defendant was

relatively unsophisticated, surveillance technology advances so quickly that

courts must step in early and define the limits of the government's power to

invade citizens' privacy. n91

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n85 See id. at 1254.

n86 See, e.g., Silverman v. United States, 365 U.S. 505, 511 (1961) (holding

that "at 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").

n87 Kyllo, 140 F.3d at 1254.

n88 468 U.S. 705, 717 (1984) (holding that revelation of single detail about

interior of home was sufficient to violate Fourth Amendment).

n89 See id.

n90 Kyllo, 140 F.3d at 1254.

n91 See id.

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B. Gas Chromatography and Mass Spectrometry

The "Sentor," a device currently being used by government drug enforcement

agents and border patrols, n92 relies on the scientific principles of gas

chromatography and mass spectrometry to analyze samples taken from the bodies of

drugsmuggling suspects. The device, which looks like a large flashlight, is

pointed at the suspect and, when switched on, vacuums in large quantities of air

(and dust) from the area surrounding his or her body. It is then inserted into a

larger machine, which heats the samples and through high-speed gas

chromatography n93 [*138] separates the chemical compounds contained therein,

including those found in cocaine, heroin, and other narcotics. n94

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n92 See United States v. Romero, 32 F.3d 641, 647 (1st Cir. 1994) (describing

use of Sentor by Coast Guard to establish presence of cocaine on smugglers'

boat).

n93 See Bober, supra note 52, at 77-82. The Sentor also contains a mass

spectrometer, which bombards the sample with high-energy electrons, thereby

helping to increase its accuracy. The scientific principles involved in the

inner workings of the device are highly technical and complicated, and,

fortunately, are mostly irrelevant to the Fourth Amendment analysis. For more on

the workings of the Sentor, see id.

n94 See Patricia Gadsby, Filthy Lucre, DISCOVER, Oct. 1998, at 82 (noting that

devices like Sentor can detect traces of cocaine smaller than one billionth of a

gram).

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While the Sentor is frequently used without a warrant, n95 no court has yet

ruled on whether its warrantless use violates the Fourth Amendment's "reasonable

expectation of privacy" standard. Peter Bober has asserted, however, that for

purposes of Fourth Amendment analysis, the courts are likely to examine this new

device by analogy to drug-sniffing canines. n96 Citing Penny-Feeney's

interpretation of United States v. Place, n97 Bober concludes that the Supreme

Court, if presented with the issue, is likely to find that warrantless use of

the Sentor does not constitute a search. n98

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n95 See Romero, 32 F.3d at 644.

n96 See Bober, supra note 52, at 97-104. For discussion of drug-sniffing dogs,

see supra notes 73-74 and accompanying text.

n97 See supra notes 66-76 and accompanying text discussing Penny-Feeney Court's

failure to correctly interpret Place decision.

n98 See Bober, supra note 52, at 104.

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This analysis suffers, however, from the same defect as Penny-Feeney; the

Sentor, unlike a dog sniff, is capable of detecting a great deal of information

that is not evidence of crime and that the suspect may have the desire (and the

right) to keep private. For example, use of the Sentor to scan a suspect who

happens to be HIV-positive would likely turn up fragmentary particles of

prescription drugs used to treat that virus; this would lead those searching to

the conclusion that the suspect is HIV-positive. As the secrecy of one's HIV

status is protected by statute in many states, n99 a court would be likely to

find that an HIV patient has a reasonable expectation of privacy in her status.

A number of similar examples can easily be brought to mind. The Sentor is simply

too powerful, providing law enforcement officials with too much information, for

its warrantless use to be reasonable under the Fourth Amendment.

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n99 See, e.g., ARIZ. REV. STAT. ANN. §§ 36-664 (West 1956). For more on the

relationship between reasonableness and state statutes, see infra Section V.

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According to Bober, the Sentor is also not terribly accurate. n100 While it does

accurately analyze those samples which it collects, the collection process

(suctioning air from around the suspect's body) does not lend itself to easily

distinguishing the source of the collected chemical compounds. n101 To return to

the previous example, an HIV-negative person who has merely spent some time in

the company of the infected person may likely pick up on his clothing or skin

trace amounts of the anti-HIV drugs, which would be detectable by the Sentor.

The same would be true of contamination with cocaine, for instance. As the

Sentor is often used to determine probable cause for a search, the person in

this example (who had picked up trace amounts of cocaine from brief contact with

a cocaine-user) could then be [*139] subject to a physical search by police

officers. This problem is complicated by the fact that as much as ninety-seven

percent of all U.S. currency is known to be contaminated with trace amounts of

cocaine. n102 If permitted, therefore, warrantless use of the Sentor will give

law enforcement officials the power to physically search virtually every

American, striking a grave blow to reasonable expectations of privacy.

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n100 See Bober, supra note 52, at 109-117.

n101 See id. (discussing scientific principles of "Brownian motion" and

diffusion).

n102 See Gadsby, supra note 94, at 82.

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C. Concealed Weapon Detectors

Concealed weapon detectors are a new technology which, while not yet in the

hands of law enforcement, may well be soon. n103 Generally speaking, a concealed

weapon detector measures the electromagnetic radiation emitted by all objects,

analyzes it, and converts those readings into a visible form. n104 Conceptually,

they can be thought of as providing a more powerful, flexible, and detailed form

of the surveillance capabilities offered by FLIR; one commentator has compared

the devices' abilities to Superman's "x-ray vision." n105 Indeed, the name

"concealed weapon detector," which is commonly used to describe these devices,

is misleading; at least one of them, known as "Millivision," is capable of

revealing any item carried on the person, including those made of metal, liquid,

ceramics, plastic (including plastic explosives) and powder, n106 regardless of

the number of layers of clothing being worn, and is even able to take effective

readings through wood, plaster, and other materials commonly used in home

construction. n107

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n103 See Dery, supra note 53, at 354 (discussing $ 2 million grant from National

Institute of Justice, which is part of Department of Justice, for development of

concealed weapon detectors).

n104 See Riley, supra note 53, at 289-93.

n105 Id. at 283.

n106 See id. at 282.

n107 See Dery, supra note 53, at 357-58 (citing Reducing Gun Violence, Before

the Subcomm. on Crime and Criminal Justice of the House Judiciary Comm., 103rd

Cong. (1994) (statement of G. Richard Huguenin of Millitech Corp.) (describing

ability of Millivision to obtain pictures of people in home, including

"location, posture, and activity")).

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Faced with so powerful a surveillance tool, some commentators have found cause

to worry that Fourth Amendment rights will be eroded further than they already

have been. n108 Professor Dery, in particular, expresses the concern that, under

the reasoning of Dow Chemical v. United States, n109 warrantless use of

Millivision will be held not to constitute a search at all. n110 He reasons that

Millivision, like the specialized mapping camera used by the EPA in Dow

Chemical, is relatively affordable, and may soon be, mass-produced. n111

Therefore, in light of the Supreme Court's indication in Dow Chemical that

"highly sophisticated surveillance equipment not generally available to the

public, such as satellite [*140] technology [and unlike the mapping camera],

might be constitutionally proscribed absent a warrant," n112 Dery predicts that

a court would hold that use of Millivision does not constitute a search. The

problem with this analysis is that Millivision is far more intrusive than the

aerial camera used in Dow Chemical; while that camera served merely to enhance

the natural senses possessed by any person who might fly over Dow Chemical's

compound, Millivision, in the hands of a police officer, gives that officer a

new range of senses, including the ability to see inside a house. Despite

language in Katz to the contrary, n113 the home appears to remain to this day a

"constitutionally protected area." n114

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n108 See, e.g., Dery, supra note 53, at 373-90.

n109 476 U.S. 227 (1986) (finding use of aerial camera did not constitute

unreasonable search). For more on Dow Chemical, see supra notes 34-37 and

accompanying text.

n110 See Dery, supra note 53, at 376.

n111 See id. at 377.

n112 Dow Chemical, 476 U.S. at 238 (emphasis added).

n113 See Katz, 389 U.S. at 351 (1967) (explaining that "Fourth Amendment

protects people, not places").

n114 See, e.g., Karo, 468 U.S. at 714-15 (holding revelation of single detail

about interior of home was sufficient to violate Fourth Amendment); New York v.

Harris, 495 U.S. 14, 28 (1990) (reaffirming that "at 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") (quoting Silverman, 365

U.S. at 511).

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For purposes of the Fourth Amendment analysis, Millivision is a far more

powerful and precise form of the FLIR device discussed above. n115 The reasoning

of Kyllo, which emphasized the reasonableness of a subjective expectation of

privacy in the home, n116 applies even more strongly to concealed weapon

detectors than it does to FLIR. Thus, Professor Dery's fear that "Millivision

may signal the practical destruction of the prohibition against general

warrants" n117 and writs of assistance, is unfounded. It seems unlikely that the

Supreme Court will ever permit such a warrantless intrusion into the most

fundamental aspect of the right to privacy, that is, the right to retreat into,

and remain unobserved in, one's home.

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n115 See supra notes 54-91 and accompanying text.

n116 See Kyllo, 140 F.3d at 1254 (holding that use of FLIR against private home

constitutes search under Fourth Amendment).

n117 Dery, supra note 53, at 387.

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IV. BEYOND "REASONABLE EXPECTATION OF PRIVACY": THE "SECURITY" APPROACH

Professor Thomas Clancy concludes that, rather than protecting property, as was

done under Olmstead, or privacy, as is done today under Katz, the Fourth

Amendment was intended to, and should be read to, protect "security," which he

defines as the right to exclude government agents from unreasonably intruding.

n118 While this right, as he says, applies only to "persons, houses, papers and

effects," n119 that language need not be exclusive of protecting non-physical,

intangible interests (such as the privacy of a telephone conversation or the

heat emitted from one's body). n120

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n118 See Clancy, supra note 12, at 351 (discussing Soldal v. Cook County, 506

U.S. 56, 69 (1992), which notes that "what matters is the intrusion on the

people's security from governmental interference").

n119 U.S. CONST. amend. IV.

n120 See Clancy, supra note 10, at 355.

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[*141] Clancy arrives at these conclusions through a historical analysis. He

approves of Olmstead, in that it guaranteed the right to protect one's property

from physical invasion, which is at the core of his right to be secure, but

finds it too narrow in that it explicitly excludes intangible interests from

protection. n121 In Katz, he says, the Court went "wildly astray by rejecting

the Fourth Amendment's structure and superimposing a privacy analysis." n122 In

relying on "expectations of privacy," the Court has confused a possible

motivation for exercising one's right with the right itself. In so doing, Clancy

says, they have "undermined the theoretical basis for protecting the house, as

such, from invasions." n123 Despite this, he approves of the revolutionary

aspect of Katz, its protection of intangible interests, which he finds to be

entirely consistent with the Framers' intent. n124

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n121 See id. at 353-54.

n122 Id. at 355.

n123 Id. at 360. Clancy further notes that the home remains a "central protected

place, even when the owner is not present." Id. at 345.

n124 See id. at 360 (pointing to Fourth Amendment's protection of "papers" as

indicating intent to protect informational security).

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Clancy's "right to be secure" is essentially an amalgam of Olmstead's protection

against physical intrusions of private property and Katz's extension of the

Fourth Amendment to intangible interests. But it fails, like Katz, to define a

workable standard for determining which intangible interests fall within the

protection of the Fourth Amendment. Clancy suggests that a "normative liberal

approach" n125 should be followed, particularly in light of modern advances in

surveillance technology. n126 The test that he ultimately arrives at requires

asking the following questions:

Do the precautions taken by the person objectively evidence an intent to

exclude the human senses? Does the particular surveillance technique utilized

by the government defeat the individual's right to exclude? Would the "spirit

motivating the framers" of the amendment "abhor these new devices no less"

than the "direct and obvious methods of oppression" that inspired the Fourth

Amendment? n127

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n125 Id. at 364.

n126 See id.

n127 Id. at 366 (quoting Goldman v. United States, 316 U.S. 129, 139 (1942)

(Murphy, J., dissenting)).

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This final question, calling on the spirit of the Framers, constitutes the

biggest problem with Clancy's theory. One of his main criticisms of Katz is

that, lacking a textual basis in the Fourth Amendment, it leaves the scope of

the Amendment's protections open to "the vagaries of shifting Court majorities,

which are able to manipulate the concept [of privacy] to either expand or

contract the meaning of the word at will." n128 Other than its vague textual

basis (the Amendment simply says "secure"), Clancy's "security" proposal is open

to exactly the same criticism. [*142] Indeed, he acknowledges in the end that

the answer to each of the questions quoted above "may be an empirical inquiry at

times, but is always a value judgment." n129

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n128 Id. at 339.

n129 Id. at 366.

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V. A PROPOSAL

The "reasonable expectation of privacy" standard promulgated in Katz v. United

States, when viewed along with the decisions interpreting that standard, can be

a robust protector of the rights of average citizens, preventing the government

from, among other things, using high-tech surveillance devices to peer through

their walls in the absence of judicial intervention in the form of a warrant.

While Katz is not without its flaws, those flaws are not so critical as to

warrant an overhaul in Fourth Amendment jurisprudence as substantial as the one

effected by the transition from Olmstead to the privacy analysis. n130 Working

within the framework of Katz, it is possible to formulate a conception of the

Fourth Amendment that will permit the government to enforce the law effectively

while protecting Constitutional rights and taking account of advances in the

technology which law-enforcement authorities utilize.

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n130 See Smith, supra note 51, at 1111 (noting unlikelihood that Supreme Court

would accede to comprehensively replacing Katz as means for determining when a

search has occurred).

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It seems intuitive that Professor Clancy is on the right track in his assertion

that an element of the Fourth Amendment's protection is the strict protection of

property rights. n131 The Supreme Court, in overruling Olmstead, need not have,

and should not have, overruled it entirely. That part of the Olmstead decision

that held that a search occurred only when there was a physical trespass, of

course, could not stand; as Justice Brandeis wrote, "the Court had to adopt a

construction susceptible of meeting modern conditions." n132 But Katz's

recognition that the Fourth Amendment provides protection for intangible

interests need not have been bundled with an assertion by the Court that the

Fourth Amendment provides no protection for private property as such. Rather

than saying that "the Fourth Amendment protects people, not places," n133 the

Court should have held that it protects both people and places.

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n131 The plain language of the Amendment, which guarantees the right of the

people "to be secure in their . . . houses, papers, and effects," requires such

a result. U.S. CONST. amend. IV.

n132 Olmstead v. United States, 277 U.S. 438, 472 (Brandeis, J., dissenting).

n133 Katz, 389 U.S. at 351.

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It is possible for willing courts to extend protection to both people and

places. The first prong of the Katz test requires that a citizen have

subjectively manifested an expectation of privacy. It is arguable that citizens

of the several states subjectively expect that others will abide by their

states' laws governing private property. Such expectations are particularly

likely with regard to law-enforcement officers, who are perceived as law-abiding

role models more often than as scofflaws. It is therefore reasonable, the courts

should find, for a person to expect [*143] that police officers, charged as

they are with upholding the law, will not violate any laws, including property

and privacy laws, in doing so.

The second-prong of Katz requires that the expectation of privacy be one that

society is prepared to accept as legitimate. Basing the privacy interest on

legislation, I submit, makes the interest per se legitimate. n134 This

interpretation of Katz would give legislatures, both state and federal, the

power to expand at any time the rights guaranteed by the Fourth Amendment,

simply by passing statutes of general applicability. A statute prohibiting your

neighbor from peering into your house using Millivision, for example, would

prohibit the police from doing the same (in the absence of a warrant). Of

course, this would mean that the repeal of any property statute would re-open a

door for police to operate. But the Supreme Court's current Fourth Amendment

jurisprudence, protecting the home above (almost) all, would be used as a

baseline, beneath which a mischievous state legislature would not be permitted

to dip.

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n134 There is some precedent for determining what is "reasonable" by reference

to statutory law. The judicially developed doctrine of "negligence per se" is an

example. In negligence suits in many states, a defendant can be found to have

been negligent, that is, to have acted without reasonable care, simply by virtue

of having violated a statute or municipal ordinance. No other argument or

evidence is required in such a situation for the plaintiff to sustain her burden

of proving negligence.

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This proposal would have a significant impact. Under the current regime,

evidence obtained by police without a warrant in violation of local property law

is not necessarily excluded from admission at trial. Under a regime that defines

the scope of the Fourth Amendment to be coextensive with the protections

afforded by such local property laws, any evidence obtained without a warrant in

violation of those laws would be obtained in violation of the Constitution

itself, and thus inadmissible. If it is unreasonable as a matter of law for an

ordinary citizen to violate a statute of general applicability, the same should

be true of those whom society charges to uphold the law--police officers.

VI. CONCLUSION

For all of its faults, the "reasonable expectation of privacy" test which Katz

v. United States gave us to determine at what point the Fourth Amendment's

protections attach is here to stay. By incorporating into the definition of

"reasonable" a recognition of the central role that property law has played in

the development of our legal system, the courts can ensure that the

Constitution's protections will remain vital in the twenty-first century,

regardless of what surveillance technologies the nation's law-enforcement

agencies may develop. $

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