Albany Law Review
1997
60 Alb. L. Rev. 1295
VIOLATION: A SUPREME COURT QUESTION IN THE MAKING
* Attorney in Washington, D.C. and an adjunct professor of criminal
law and criminal procedure at Northern Virginia Community College.
He also serves as an instructor at the Northern Virginia Police
Academy and the Legal Editor for the Counterterrorism and Security
Magazine.
SUMMARY:
... The issue involves the legality of using a "thermal imaging
device" that can measure the heat emanating from a private
residence. The device is used by police to detect heat generated by
indoor marijuana growing operations. ... Analogizing the fact
situation to a dog-sniff search, the court found that there was an
expectation on the part of the defendants that the waste heat would
emanate, negating the defendants' subjective expectation of privacy.
... device merely records the emanation of "waste heat" from the
exterior of a building; that no reasonable expectation of privacy,
either objective or subjective exists in this "waste heat"; that the
technical imprecision of the device is such as to leave private that
which transpires inside a home; and that the Constitution does not
forbid the government from employing modern technology to glean
incriminating data even from the most subtle of telltale signs. ...
With respect to the second prong of Katz, Cusumano I held that using
a thermal imager "intrudes upon an expectation of privacy that
society deems reasonable." ... The court held that in the absence of
a search warrant, the use of a thermal imaging device requires a
compelling state interest other than enforcement of the criminal
laws. ...
TEXT:
[*1295]
I. Introduction
Over the last few years, a new issue in criminal procedure has begun
taking shape. The issue involves the legality of using a "thermal
imaging device" that can measure the heat emanating from a private
residence. The device is used by police to detect heat generated by
indoor marijuana growing operations. The majority of courts have
ruled that the warrantless use of a thermal imager does not raise
Fourth Amendment concerns. n1 Relatively few courts have ruled that
the use of these devices without a warrant violates the Fourth
Amendment protections against unreasonable searches. n2 Eventually,
the Supreme Court will have no choice but to address this issue and
rule on the side that has the support of prevailing constitutional
analysis. While police are obliged to utilize advanced, but legal,
law enforcement techniques in their pursuit of legitimate
objectives, their ability is governed by the right of an individual
to remain free from an unjustified governmental intrusion. n3 It is
the job of the Supreme Court to consider these divergent ideologies
and render a judicial interpretation of the law.
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n1. See, e.g., United States v. Myers, 46 F.3d 668 (7th Cir.)
(holding that there was no Fourth Amendment search because there was
no reasonable expectation of privacy in the emitted heat detected by
the thermal imaging device), cert. denied, 116 S. Ct. 213 (1995);
United States v. Pinson, 24 F.3d 1056, 1058 (8th Cir.) (same), cert.
denied, 115 S. Ct 664 (1994).
n2. See, e.g., United States v. Cusumano, 67 F.3d 1497 (10th Cir.
1995), vacated on reh'g en banc, 83 F.3d 1247 (10th Cir. 1996);
State v. Young, 867 P.2d 593 (Wash. 1994).
n3. See U.S. Const. amend. IV.
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Although the United States law enforcement community seems to be
targeting the cocaine trade, marijuana has enjoyed a brief respite
from police scrutiny. Due to the lack of national surveys in 1995,
it [*1296] is difficult to estimate the amount of domestically
grown marijuana. It is known, however, that 3.27 million cultivated
plants were destroyed in 1995, accounting for 1486 metric tons, and
federal seizures amassed another 480 metric tons; federal
authorities also seized 3348 indoor grow operations each of which,
on average, cultivated 68 plants. n4 The six leading States for
indoor growing activity included California, Oregon, Florida,
Colorado, Georgia, and Washington, which cumulatively accounted for
fifty-nine percent of the total indoor plants seized domestically.
n5 The growers have more advanced technology enabling them to
produce greater crop yields of a more potent plant than in previous
years. The resulting emphasis on marijuana growers by anti-narcotic
agents, and their successes, have caused the growers to go
underground, both literally and figuratively, to avoid detection.
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n4. See National Narcotics Intelligence Consumers Committee, The
NNICC Report 1995: The Supply of Illicit Drugs to the United States
53-54 (1996).
n5. See id.
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Although smaller than outdoor fields, indoor operations are
well-equipped ""with the latest computerized irrigation systems,
hydroponic basins, heating systems [and] growing lamps,'" which
allow for four full growing cycles per year. n6 However, the
advanced technology of the grower is also his weakness because it
offers an exploitable advantage to law enforcement. Indoor growing
operations require high intensity grow lamps that can generate
temperatures up to 150 degrees Fahrenheit. n7 The heat must be
exhausted from the operation in order to maintain the optimum
temperature of 60 to 70 degrees Fahrenheit. n8 Police can take
advantage of this necessity by using thermal imaging devices to
detect the heat emissions. n9 The information gleaned will be used
to establish probable cause in order to obtain a search warrant. n10
This tactic, however, requires the police to, at a minimum, briefly
consider the Fourth Amendment limitations imposed on them by the
Constitution.
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n6. Mindy G. Wilson, Note, The Prewarrant Use of Thermal Imagery:
Has This Technological Advance in the War Against Drugs Come at the
Expense of Fourth Amendment Protections Against Unreasonable
Searches?, 83 Ky. L.J. 891, 892 (1994-1995) (quoting Richard Lipkin,
Kentucky's Other Grass, Insight, July 1, 1991, at 16).
n7. See id. at 893.
n8. See id.
n9. See id.
n10. See id. (noting that the information "supplements the probable
cause necessary to obtain a search warrant and contributes to the
discovery and eradication of indoor operations").
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The Fourth Amendment was an effort by the Framers of the
Constitution to provide protection against the abuses of the British
General Warrants and the Writs of Assistance of colonial America.
n11 "These arbitrary instruments authorized law enforcement
officials to indiscriminately search and seize individuals' personal
property, usually with dubious justifications." n12 Some scholars
have identified these searches as ""the first in the chain of events
which led directly and irresistibly to revolution and
independence.'" n13
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n11. 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, 271 (1995) (citing Boyd
v. United States, 116 U.S. 616, 625-27 (1886)).
n12. Id. at 271 (citing Nelson B. Lasson, The History and
Development of the Fourth Amendment to the United States
Constitution 51-55 (1937)).
n13. Id. (quoting Nelson B. Lasson, The History and Development of
the Fourth Amendment to the United States Constitution 51 (1937)).
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As stated in a previous analysis on the issue of a warrantless
thermal scan:
It is said that "a man's house is his castle," at least when it
comes to governmental intrusion. If so, the castle's protective moat
has been drained and paved smooth, its protective walls are rife
with gaping holes through which the enemy can peer, and the skies
above its ramparts are filled with airborne enemies. The castle -
once a treasured haven of personal privacy - now stands vulnerable
to an assault that threatens to dislodge its very foundation. n14
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n14. Id. at 268-69 (footnotes omitted).
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The strength of this phrase highlights the importance of the issue
and the urgent necessity of its interpretation by the Supreme Court.
This Article will provide an analysis of both sides of the issue. As
indicated by its title, the Supreme Court likely will hear these
arguments in the future. As will be illustrated later in this
Article, because one of the more recent appellate decisions
contradicted all previous appellate decisions, n15 the thermal
imaging question is "heating up." This Article will attempt to offer
an unbiased perspective of the issue, and allow the reader to draw
his own conclusions.
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n15. See United States v. Cusumano, 67 F.3d 1497 (10th Cir. 1995),
vacated on reh'g en banc, 83 F.3d 1247 (10th Cir. 1996).
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II. How Thermal Imaging Devices Work
Thermal imaging devices measure heat emanating from a structure by
utilizing optical electronic sensors which can read the [*1298]
thermodynamic characteristics of the target. n16 These devices,
about the size of a standard 35mm camera, can detect temperature
differences as small as one-half of a degree at a range "between 2
feet [and] one quarter of a mile." n17 By scanning the infrared wave
lengths of the electromagnetic spectrum (which contains many types
of energy fields), a heat temperature can be recognized and
measured. n18 Since the infrared section of the spectrum occurs at
significantly lower speed than that of visible light, it cannot be
seen with the human eye. n19 These imagers convert the thermal
readings to a computer which generates several types of displays
including still, video or real-time pictures. n20
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n16. See United States v. Field, 855 F. Supp. 1518, 1522 (W.D. Wis.
1994), overruled sub silentio by United States v. Myers, 46 F.3d 668
(7th Cir.), cert. denied, 116 S. Ct. 213 (1995).
n17. United States v. Porco, 842 F. Supp. 1393, 1396 (D. Wyo. 1994),
aff'd sub nom. United States v. Cusumano, 67 F.3d 1497 (10th Cir.
1995) (affirming district court's decision to deny motion to
suppress evidence, but holding that police use of a thermal imaging
device does implicate Fourth Amendment concerns), vacated on reh'g
en banc, 83 F.3d 1247 (10th Cir. 1996) (affirming the district court
but declining to reach the constitutional issue of whether use of a
thermal imager consitutes a search under the Fourth Amendment
because even without the information obtained from the warrantless
use of the thermal imager, probable cause to support issuance of
search warrant was established).
n18. "Infrared emissions form part of the infrared spectrum, which
includes radio waves, microwaves, heat, visible light, ultraviolet
light, X-rays, and gamma rays. The difference between each of these
forms of energy is the wavelength of the electric and magnetic
fields." Lisa J. Steele, Waste Heat and Garbage: The Legalization of
Warrantless Infrared Searches, 29 Crim. L. Bull. 19, 24 (1993).
n19. See id.
n20. See id.
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Thermal energy is generated by radiated heat, not convected heat.
n21 The heat radiates until it is reflected, absorbed or
transmitted. "In the same way that a window and a curtain will allow
different amounts of light to pass through them, different materials
allow different amounts of heat to radiate from them. Hot objects
appear white because they radiate more infrared energy than cold
objects, which appear dark." n22 Essentially, the imagers are
passive devices which do not send out any type of pulse, ray or beam
into a structure but instead target and measure emanating heat
("waste heat"). n23 The device is employed beyond the curtilage and
thus does not intrude in any fashion onto or into the targeted
property. The imager detects hot spots on the exterior of a building
which could be observed by any member of the public equipped with
[*1299] a commercially available device. n24 Before using the
device, the operator must wait until night-fall in order to allow
solar energy stored in the target to dissipate. n25 The operator
then focuses on a normal heat source, such as an active chimney, to
calibrate the device. Once the operator targets the suspected
structure in an effort to "see" the heat patterns, constitutional
issues under the Fourth Amendment are implicated; however, the
courts differ as to the resolution of the issue. n26
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n21. See Field, 855 F. Supp. at 1521.
n22. Steele, supra note 18, at 24 (footnote omitted).
n23. See id. at 21 n.12 (citing United States v. Penny-Feeney, 773
F. Supp. 220, 223 (D. Haw. 1991)).
n24. See United States v. Cusumano, 67 F.3d 1497, 1500 (10th Cir.
1995), vacated on reh'g en banc, 83 F.3d 1247 (10th Cir. 1996).
n25. See Field, 855 F. Supp. at 1522.
n26. See Cusumano, 67 F.3d 1497 (10th Cir. 1995) (affirming district
court's decision to deny motion to suppress evidence, but holding
that police use of a thermal imaging device does implicate Fourth
Amendment concerns), vacated on reh'g en banc, 83 F.3d 1247 (10th
Cir. 1996) (affirming the district court but declining to reach the
constitutional issue of whether use of a thermal imager consitutes a
search under the Fourth Amendment because even without the
information obtained from the warrantless use of the thermal imager,
probable cause to support issuance of search warrant was
established); State v. Young, 867 P.2d 593 (Wash. 1994) (holding
that warrantless use of thermal imager violated State and Federal
Constitutions); but see United States v. Myers, 46 F.3d 668 (7th
Cir.) (holding that thermal image scanning is not a search under the
Fourth Amendment), cert. denied, 116 S. Ct. 213 (1995); United
States v. Ford, 34 F.3d 992 (11th Cir. 1994) (holding that use of
thermal imager does not constitute an impermissible search).
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III. A Thermal Imaging Case Analysis of the
Fourth Amendment
The Fourth Amendment to the United States Constitution offers
protection to U.S. citizens from unreasonable searches of their
inherent privacy. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized. n27
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n27. U.S. Const. amend. IV.
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The amendment requires police to apply for and receive a warrant
from a neutral magistrate who reviews the application and supporting
affidavit to determine whether probable cause has been established.
n28 Under Mapp v. Ohio, n29 any evidence obtained during [*1300]
searches and seizures in violation of the Fourth Amendment (e.g., a
warrantless search) is inadmissible in court. n30 This
inadmissibility is mandated by the judicially created doctrine known
as the "exclusionary rule," which excludes products of unreasonable
searches from admission into evidence against the person whose
rights have been violated. n31 However, there are several exceptions
to the requirement of a warrant: arrest of a suspect in a public
place, n32 search incident to a lawful arrest, n33 stop and frisk,
n34 consent searches, n35 automobile inventory searches, n36 hot
pursuit, n37 border searches, n38 administrative and regulatory
searches, n39 and plain view searches. n40
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n28. See Johnson v. United States, 333 U.S. 10, 14 (1948) (noting
that "when the right of privacy must reasonably yield to the right
of search is, as a rule, to be decided by a judicial officer, not by
a policeman or government enforcement agent").
n29. 367 U.S. 643 (1961).
n30. See id. at 655.
n31. See id. at 648 (stating that the exclusionary rule is
"constitutionally required - even if judicially implied").
n32. See, e.g., United States v. Watson, 423 U.S. 411, 423-24 (1976)
(noting that warrantless public arrests have long been authorized).
n33. See, e.g., United States v. Robinson, 414 U.S. 218, 235 (1973)
(holding that a lawful arrest establishes authority for a search
incident to that arrest).
n34. See, e.g., Terry v. Ohio, 392 U.S. 1, 27 (1968) (holding that
police officers may reasonably search an individual if they have
reason to believe that the individual is armed and dangerous).
n35. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973)
(holding that police officers may search an individual without a
warrant if the individual voluntarily consents to the search).
n36. See, e.g., Colorado v. Bertine, 479 U.S. 367, 371 (1987)
(holding that inventory searches do not require search warrants).
n37. See, e.g., Warden v. Hayden, 387 U.S. 294, 298-99 (1967)
(noting that a search warrant is not required where the
circumstances require police to conduct an immediate search in order
to avoid risk to their lives or the lives of others).
n38. See, e.g., United States v. Montoya de Hernandez, 473 U.S. 531,
541 (1985) (holding that an individual may be detained at the border
without a warrant if a customs agent reasonably suspects that the
party is concealing contraband).
n39. See, e.g., New York v. Burger, 482 U.S. 691, 702-03 (1987)
(holding that a warrant is not required to search commercial
premises in a closely regulated industry if: (1) "a "substantial'
government interest that informs the regulatory scheme pursuant to
which the inspection is made" exists; (2) "the warrantless
inspections [are] "necessary to further [the] regulatory scheme;'"
and (3) ""the statute's inspection program, in terms of the
certainty and regularity of its application,...provide[s] a
constitutionally adequate substitute for a warrant'" (quoting
Donovan v. Dewey, 452 U.S. 594, 600, 602, 603 (1981))).
n40. See, e.g., Horton v. California, 496 U.S. 128, 136-37 (1990)
(holding that police may sieze an item that is in plain view without
a warrant if "the officer did not violate the Fourth Amendment in
arriving at the place from which the evidence could be plainly
viewed," if the item is immediately recognized as incriminating, and
the police have a lawful right of access to the item).
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Until the Supreme Court decision in Katz v. United States, n41
Fourth Amendment protections extended only to persons and places.
n42 The Katz court pointedly stated that "the Fourth Amendment
protects people, not places." n43 Factually, the Katz decision held
that even though a telephone booth is considered a public place, the
speaker is entitled to assume that the conversation is private. n44
The booth becomes a temporary haven, a private place which is
entitled to security from interception of conversations, unless
probable cause has been demonstrated to a magistrate, in which case
the magistrate can issue a warrant. n45 The Court held that through
electronic surveillance, the Government "searched and seized" the
booth occupant's conversation in violation of the Fourth Amendment.
n46
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n41. 389 U.S. 347 (1967).
n42. See Olmstead v. United States, 277 U.S. 438, 464, 466 (1928)
(wiretapping does not violate the Fourth Amendment because that
constitutional provision is meant to protect "material" things, such
as places or areas, and wiretapping involves the sense of hearing, a
non-material thing), overruled by Katz v. United States, 389 U.S.
347 (1967) (protecting people, not places). Wiretaps are presently
regulated by 18 U.S.C. 2511 (1994).
n43. Katz, 389 U.S. at 351.
n44. See id. at 352.
n45. See id. at 353-55.
n46. See id. at 353.
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Justice Harlan's concurrence provided a two-part test to determine
if the Fourth Amendment applies to a specific situation. n47 First,
does the defendant exhibit an actual (subjective) expectation of
privacy (has the individual shown that he seeks to preserve
something as private)? Second, if so, is such an expectation one
that society would recognize as reasonable (objective)? n48 This
two-part inquiry has come to be known as the "reasonable expectation
of privacy," test n49 and has led to the present impasse as it
relates to new technology. Fortunately, the Framers provided an
amendment broad enough to apply to inconceivable technologies over
200 years in their future.
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n47. See id. at 361 (Harlan, J., concurring).
n48. See id.
n49. Id. at 360 (Harlan, J., concurring).
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IV. Thermal Imagers Do Not Raise Fourth
Amendment Issues
The current dilemma among the federal courts is whether the use of a
thermal imager is subject to a Fourth Amendment application [*1302]
and analysis. The Seventh and Eighth Circuits adopted the analysis
n50 set forth in United States v. Penny-Feeney, n51 which held that
the use of a thermal imaging device is not a search within the
meaning of the Fourth Amendment. The Eleventh Circuit also reached
the same conclusion. n52 Most illustrative of the present reluctance
to take on these issues are several opinions in which the courts
refused to decide the issue of the use of thermal imaging under a
Fourth Amendment analysis, holding that there was sufficient other
probable cause to support a search warrant. n53
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n50. See United States v. Myers, 46 F.3d 668, 669-70 (7th Cir.)
(holding that there was no Fourth Amendment search because there was
no reasonable expectation of privacy in the heat detected by the
thermal imaging device), cert. denied, 116 S. Ct. 213 (1995); United
States v. Pinson, 24 F.3d 1056, 1058 (8th Cir.) (same), cert.
denied, 115 S. Ct. 664 (1994).
n51. 773 F. Supp. 220 (D. Haw. 1991), aff'd on other grounds sub
nom. United States v. Feeney, 984 F.2d 1053 (9th Cir. 1993).
Ironically, the oft-cited Ninth Circuit decision did not "address
whether any aspect of [a thermal imager scan] during [the]
helicopter surveillance of the Feeneys' home violated the Fourth
Amendment's prohibition against unreasonable searches." Feeney, 984
F.2d at 1055.
n52. See United States v. Ford, 34 F.3d 992 (11th Cir. 1994)
(concluding that use of a thermal imaging device does not constitute
an unreasonable search under the Fourth Amendment because any
subjective expectation of privacy the defendant may have had is not
objectively reasonable).
n53. See, e.g., United States v. Cusumano, 83 F.3d 1247, 1251 (10th
Cir. 1996) (stating that it was "neither necessary nor wise" to
decide "whether the use of a thermal imager to scan a personal
residence constitutes a search under the Fourth Amendment"). Judge
Porfilio thought it was "a mistake to avoid the issue." Id. at 1251
(Porfilio, J., concurring). See also United States v. Olson, 21 F.3d
847, 849-50 (8th Cir.) (holding that evidence from an independent
investigation, informant tips and utility company records were
enough to establish probable cause to support a warrant), cert.
denied, 115 S. Ct. 230 (1994); United States v. Deaner, 1 F.3d 192,
202 (3d Cir. 1993) (holding that the presence of marijuana stems and
leaves in appellant's garbage established the necessary probable
cause); United States v. Casanova, 835 F. Supp. 702, 708 (N.D.N.Y.
1993) (holding that tips from an informant established the necessary
probable cause).
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The Penny-Feeney court was the first to analyze a thermal imaging
device and its application to Katz. n54 In Penny-Feeney, officers
flew over a residence in a helicopter while operating an instrument
known as Forward Looking Infrared Radar (FLIR). n55 The walls and
garage of the residence, suspected of containing a marijuana
cultivation operation, appeared bright white indicating escaping
heat. n56 The results of the device's measurements were
simultaneously recorded on a video taping system. n57 In an
affidavit, one officer stated that because the residence emanated so
much heat, it [*1303] had to be generated artificially, which
would be consistent with the presence of high intensity grow-lights
and the indoor cultivation of marijuana. n58 This method is "favored
by indoor marijuana growers because it is not dependent on weather
conditions and cannot be detected by the naked eye." n59
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n54. See Penny-Feeney, 773 F. Supp. at 228 (holding that use of a
thermal imager for purpose of detecting waste heat is not a "search"
under the Fourth Amendment).
n55. See id. at 223.
n56. See id.
n57. See id. at 224.
n58. See id.
n59. Id.
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A search warrant was issued and executed resulting in the seizure of
nearly 250 marijuana plants, electric transformers, high-energy
light bulbs, an electric meter altered to disguise the true amount
of wattage consumed and other related paraphernalia. n60 The court,
utilizing a Katz analysis, reasoned that the imaging system's sole
function is to detect differences in surface temperature of objects
and "did no more than gauge and reflect the amount of heat that
emanated" from the building. n61 The court noted that "the heat was
an incidental byproduct of various energy sources used to help
cultivate marijuana." n62 For their part, the defendants did not try
to impede or assert dominion over the heat's escape; in fact, they
used exhaust fans to direct the "abandoned" heat outside of the
premises. n63
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n60. See id.
n61. Id. at 225.
n62. Id.
n63. See id.
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Comparing this incident to garbage placed outside of the home, the
court stated that both situations involved the "homeowner's
disposing of waste matter in areas exposed to the public." n64
Citing California v. Greenwood, n65 in which the Court held that
persons who put trash at the curb contained in opaque bags cannot
avail themselves of an objectively reasonable expectation of
privacy, the Penny-Feeney court noted that "here, the exposure is
heat-sensory and is in no way diminished by the fact that the source
of the heat could only be detected by use of the FLIR." n66 The
Supreme Court has consistently held that police utilization of
extra-sensory, non-intrusive equipment to investigate people and
objects does not constitute a Fourth Amendment search. n67
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n64. Id. at 226.
n65. 486 U.S. 35 (1988).
n66. Penny-Feeney, 773 F. Supp. at 226 (citing Greenwood, 486 U.S.
at 40).
n67. See United States v. Place, 462 U.S. 696, 707 (1983) (holding
that the use of narcotic sniffing dogs does not implicate the Fourth
Amendment); United States v. Knotts, 460 U.S. 276, 285 (1983)
(holding that police use of a beeper placed in a container to track
the movements of a vehicle and trace illegal chemical distribution
is neither a "search" nor a "seizure" under the Fourth Amendment);
Smith v. Maryland, 442 U.S. 735, 745-46 (1979) (holding that the use
of a register system with a phone company to record phone numbers
dialed at a private phone was not a search).
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The district court found that the defendants' actions were
indicative of their failure to manifest an actual expectation of
privacy in the waste heat because they ventilated it outside of the
garage, thereby exposing it to the public. n68 Analogizing the fact
situation to a dog-sniff search, the court found that there was an
expectation on the part of the defendants that the waste heat would
emanate, negating the defendants' subjective expectation of privacy.
n69 Further, the method used by police to detect the waste heat was
inoffensive and did not involve any embarrassment. n70 The court
noted that even if the defendant could establish a subjective
expectation of privacy in the abandoned heat, such an expectation is
not one that society would view as objectively reasonable. n71 The
court ultimately concluded that there was no Fourth Amendment
search. n72
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n68. See Penny-Feeney, 773 F. Supp. at 226.
n69. See id. at 226-27 (citing United States v. Solis, 536 F.2d 880
(9th Cir. 1976) (sniffing of marijuana odor by police dogs outside
defendant's trailer is not a prohibited search under the Fourth
Amendment)).
n70. See id. at 227.
n71. See id. at 226 (citing California v. Greenwood, 486 U.S. 35,
40-41 (1987)).
n72. See id. at 230. The Ninth Circuit decided the Feeneys' appeal
soley on the grounds that probable cause existed independent of the
information obtained from the thermal imager. See United States v.
Feeney, 984 F.2d 1053, 1054-55 (9th Cir. 1993). The court declined
to address the constitutional question. See id.
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In United States v. Pinson, n73 the Eighth Circuit also relied on
the dog-sniffing analogy when it held that the defendant's
subjective expectation of privacy was not one that society would
find objectively reasonable. n74 Pinson argued "that the use of the
FLIR to detect the heat emanating from his home without first
obtaining a warrant constituted an unreasonable search and seizure
in violation of the Fourth Amendment." n75 The court disagreed,
concluding that Pinson did not have an expectation of privacy that
society would recognize as objectively reasonable and, therefore, no
Fourth Amendment violation occurred. n76 The court held that
detecting waste heat is not an intrusion into the privacy of one's
home because "no intimate details of the home were observed, and
there was no intrusion upon [*1305] the privacy of the individuals
within." n77 The court concluded that "none of the interests which
form the basis for the need for protection of a residence, namely
the intimacy, personal autonomy and privacy associated with a home,
are threatened by thermal imagery." n78
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n73. 24 F.3d 1056 (8th Cir. 1994).
n74. See id. at 1059.
n75. Id. at 1058.
n76. See id. at 1059.
n77. Id.
n78. Id.
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Likewise, the Seventh Circuit has ruled that thermal imaging is not
a Fourth Amendment violation. In United States v. Myers, n79 the
court relied on Pinson and United States v. Ford, n80 for its
holding that a scan by a thermal imaging device does not constitute
a search within the meaning of the Fourth Amendment. n81 The court
concluded that because Myers took no affirmative steps to conceal
the excess heat from his home, he did not have a subjective
expectation of privacy in the waste heat. n82
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n79. 46 F.3d 668 (7th Cir.), cert. denied, 116 S. Ct. 213 (1995).
n80. 34 F.3d 992 (11th Cir. 1994).
n81. See Myers, 46 F.3d at 669.
n82. See id.
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In United States v. Ishmael, n83 the district court suppressed
evidence on the grounds that the warrantless use of a thermal imager
was a constitutionally proscribed search. n84 The Fifth Circuit
reversed, and drawing upon the "open fields" doctrine, n85 held that
"the mere fact that the police have employed relatively
sophisticated forms of technological surveillance does not render
the surveillance unconstitutional." n86 The Fifth Circuit found that
the Ishmaels satisfied the subjective expectation of privacy prong
of the Katz test, but made no determination of whether society would
view that expectation as objectively reasonable. n87 Instead,
applying United States v. Knotts n88 and Dow Chemical Co. v. United
States, n89 the court noted that ""the correct inquiry is whether
the government's [*1306] intrusion infringes upon the personal and
societal values protected by the Fourth Amendment.'" n90 The court
acknowledged that although the defendants could satisfy the first
prong of the Katz test, the search did not reveal any "intimate
details;" thus, it was not an unconstitutional search. n91 While
technology certainly gives law enforcement an advantage on crime,
"the Supreme Court has never equated police efficiency with
unconstitutionality." n92
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n83. 843 F. Supp. 205 (E.D. Tex. 1994) (holding that use of thermal
imager is unconstitutional), rev'd, 48 F.3d 850 (5th Cir.) (holding
that the warrantless use of a thermal imager in an "open field" does
not offend the Fourth Amendment), cert. denied, 116 S. Ct. 74
(1995).
n84. See id. at 211-12.
n85. This doctrine holds that police are not required to obtain a
warrant before conducting an aerial surveillance of a fenced yard.
The Supreme Court has concluded that such an expectation is
unreasonable because "any member of the public flying in this
airspace who glanced down could have seen everything that [the]
officers observed." California v. Ciraolo, 476 U.S. 207, 213-14
(1986).
n86. Ishmael, 48 F.3d at 855.
n87. See id. at 854-55.
n88. 460 U.S. 276 (1983).
n89. 476 U.S. 227 (1986).
n90. Ishmael, 48 F.3d at 855 (quoting Oliver v. United States, 466
U.S. 170, 177-83 (1984) (holding that the "open fields" doctrine
applies even though a fence and "No Trespassing" sign were placed
around the marijuana because the fence and sign do not effectively
bar the public from viewing open fields and, therefore, an
expectation of privacy in an open field is not one that society
would regard as reasonable)).
n91. See id. at 855-57.
n92. Id. at 855 (quoting Knotts, 460 U.S. at 284 (holding that
police use of a beeper placed in a container to track the movements
of a vehicle and trace illegal chemical distribution is neither a
"search" nor a "seizure" under the Fourth Amendment)).
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In short, the courts have reasoned that the thermal imager is a
passive device (i.e., it does not emit beams or rays into an object)
with only the ability to "see" the exterior surface of a target, not
the intimate details of what is inside. n93 In fact, a review of
utility bills and phone company records may give a better indication
of the activity occurring within the walls of the target. The Fourth
Amendment does not require police to obtain a search warrant before
availing themselves of a review of utility records, n94 therefore,
it should not require them to obtain a warrant before using a
thermal imager. n95 Generally, courts have adopted the reasoning
that a thermal imager is not subject to a Fourth Amendment analysis.
n96 However, there are detractors who argue that people who do not
knowingly expose heat signatures from their homes are not required
to guard against every investigative law enforcement tool; thus, a
thermal imager used to detect such signatures should require a
warrant. n97
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n93. See id. at 856 (citing United States v. Pinson, 24 F.3d 1056,
1059 (1994); United States v. Penny-Feeney, 773 F. Supp. 220, 223
(1991)).
n94. See United States v. Domitrovich, 852 F. Supp. 1460, 1475 n.3
(E.D. Wash. 1994), aff'd, 57 F.3d 1078 (9th Cir. 1995).
n95. See id. (holding that the passive nature of a thermal imager
indicates that it may be used without the issuance of a search
warrant because use does not constitute a search under the Fourth
Amendment). Interestingly, the state court within this district held
that using infrared surveillance on a private dwelling violates both
the federal constitution and Washington's state constitution. See
State v. Young, 867 P.2d 593, 601 (Wash. 1994).
n96. See, e.g., Ishmael, 48 F.3d at 857.
n97. See Recent Case, 109 Harv. L. Rev. 1445, 1147-49 (1996)
(discussing the effects of using thermal imagers by law enforcement
officers on a citizen's reasonable expectation of privacy under the
Fourth Amendment).
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V. Thermal Imagers Do Raise Fourth Amendment Issues
The only federal appellate court to declare that a warrantless
search by thermal imaging is unconstitutional is United States v.
Cusumano. n98 Although Cusumano I was subsequently vacated, the
vacating court specifically stated "we do not decide whether the use
of a thermal imager to detect heat emissions from a personal
residence constitutes a search under the Fourth Amendment." n99 The
court reasoned that even without the information obtained from the
thermal imager, there was other information in the affidavit
sufficient to support the issuance of the search warrant. n100
However, the reasoning of Cusumano I is sound to the extent that it
was not overturned, and its reasoning deserves emphasis as it will
no doubt be used in future decisions where the defendant is arguing
against a warrantless thermal imaging search.
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n98. 67 F.3d 1497 (10th Cir. 1995), vacated on reh'g en banc, 83
F.3d 1247 (10th Cir. 1996). The first Cusumano decision relies on
U.S. v. Field, 855 F. Supp 1518 (W.D. Wis. 1994) (holding that a
warrantless search by a thermal imager violates the Fourth
Amendment), overruled sub silentio by United States v. Myers, 46
F.3d 668 (7th Cir.), cert. denied, 116 S. Ct. 213 (1995). However,
for purposes of this Article, only the the first decision will be
analyzed to any degree of particularity. The first appellate
decision will be referred to as Cusumano I; the second appellate
opinion will be referred to as Cusumano II.
n99. Cusumano II, 83 F.3d at 1248.
n100. See id. at 1248-49 (concluding that other information, for
example, power company reports indicating that the residence used
twice as much electricity as similar structures, receiving 500
gallons of diesel fuel to run a generator, and paying rent in
three-month installments in cash, was enough to support a search
warrant, independent of the information gathered by the thermal
imager).
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The court began its decision by reiterating and acknowledging the
government's position by declaring that the
device merely records the emanation of "waste heat" from the
exterior of a building; that no reasonable expectation of privacy,
either objective or subjective exists in this "waste heat"; that the
technical imprecision of the device is such as to leave private that
which transpires inside a home; and that the Constitution does not
forbid the government from employing modern technology to glean
incriminating data even from the most subtle of telltale signs. n101
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n101. Cusumano I, 67 F.3d at 1500.
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The court initiated its uniquely insightful and eloquent reasoning
by stating that its "fellow circuits have misframed the relevant
Fourth Amendment inquiry and, in so doing, have asked, and [*1308]
answered, the wrong question." n102 The court asked "is the link
between the "waste heat' observed by the imager and the activities
that gave rise to that heat so attenuated as to restrict the
"expectation of privacy' analysis to the heat alone? We think not."
n103
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n102. Id.
n103. Id. at 1501.
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In an exhaustive scientific analysis of the thermal imager, the
court distinguished the imager's "true" ability, which the court
claimed is not the measurement of "waste heat," but rather "heat
differentials"; the imager records heat gradients across the
exterior surface of a building. n104 Citing to the laws of
thermodynamics (just the sound of which would make most lawyers
cringe), the court established that the amount of radiated heat from
an exterior wall is directly related to the amount of heat generated
by sources nearest the interior of the wall, producing a heat
"signature" that the imager can detect. n105
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n104. See id.
n105. See id.
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The court furthered its analysis by noting that the utility of the
device "depends therefore not on the inevitable and ubiquitous
phenomenon of heat loss but on the presence of distinguishable heat
signatures inside the structure." n106 The value of the imager is
its ability to translate the "thermal records into intelligible
(albeit speculative) information about the activities that generate
the observed heat." n107 To the extent the imager can detect and
record radiation, "it can "see through' walls." n108
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- - - - - -
n106. Id.
n107. Id.
n108. United States v. Field, 855 F. Supp. 1518, 1519 (W.D. Wis.
1994), overruled sub silentio by United States v. Myers, 46 F.3d 668
(7th Cir.), cert. denied 116 S. Ct. 213 (1995).
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The Cusumano I court based its analysis on its interpretation of
Katz, where the device did not monitor the interior of the phone
booth, but rather the molecular vibrations of the booth's glass.
n109 In other words, it "passively recorded the propagation of waste
vibrational energy into the public sphere," and interpreted the
abandoned energy. n110
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n109. See Cusamano I, 67 F.3d at 1501-08.
n110. Id. at 1501.
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Analyzing Penny-Feeney in light of Katz, the court in Cusumano I
concluded that since each case involved the measurement of an
exterior physical manifestation of an internal energy flow, there is
no true distinction between the infrared radiation measured by a
[*1309] thermal imager and the molecular vibrations recorded by a
microphone. n111 Restating the "proper" inquiry, the court asked
whether a person "possesses an expectation of privacy in the heat
signatures of the activities, intimate or otherwise, that they
pursue within their home." n112 The court answered the inquiry by
stating that people "need not...anticipate[ ] and guard[ ] against
every investigative tool" the government has at its disposal. n113
They concluded that "to hold otherwise would leave the privacy of
[one's] home at the mercy of the government's ability to exploit
technological advances." n114 This, in effect, would allow the
government to perpetually argue that a person's failure or inability
to defeat "the latest scientific innovation forfeits the protection
of the Fourth Amendment." n115
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n111. See id. at 1502 (discussing the similarities between a
microphone and a thermal imager and noting that both "disclose facts
about the activities that spawned them").
n112. Id.
n113. Id. at 1503 (citing United States v. Ishmael, 48 F.3d 850,
854-55 (5th Cir. 1995)).
n114. Id. The Cusumano I court agreed with the government's argument
that it was not prohibited from using modern technology, but stated
that "technological wizardry neither obviates nor supplants a
warrant. Words carried out of the house on the wind travel beyond
the domain of the Fourth Amendment, but a government official may
not replicate a trick of the wind with a parabolic microphone." Id.
at 1505. Further, the court stated that the ""indiscriminate
monitoring of property that has been withdrawn from public view
would present far too serious a threat to privacy interests in the
home to escape entirely some sort of Fourth Amendment oversight.'"
Id. at 1509 (quoting United States v. Karo, 468 U.S. 705, 716
(1984)).
n115. Id. at 1503 (citing Katz v. United States, 389 U.S. 347, 362
(1967)).
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With respect to the second prong of Katz, Cusumano I held that using
a thermal imager "intrudes upon an expectation of privacy that
society deems reasonable." n116 The court included in its analysis
the recognition that the Seventh, Eighth and Eleventh Circuits
previously had ruled that the secrets revealed by a thermal imaging
device are not sufficiently intimate to trigger a Fourth Amendment
violation. n117 They also found fault with previous opinions, in
that the previous opinions misunderstand technology and its
application to the Fourth Amendment. n118
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- - - - - -
n116. Id. at 1506.
n117. See id. at 1504-05.
n118. See id. at 1504.
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Although a thermal imager cannot reproduce images or sounds, the
court concluded that the imager dilutes the sanctuary of the home by
impinging on the owner's right to be free from the arbitrary and
discretionary monitoring by the government because the imager allows
the government to monitor domestic activities that generate [*1310]
a significant amount of heat. n119 The degree of intimacy is not
important and thus the basement should receive the same protection
as the bedroom. n120 The government asserted that a thermal imager
merely identifies "hot spots on the exterior of a building." n121
The court concluded, however, that technology is not static and is
subject to improvement. n122 The court was of the opinion that the
issue should be resolved currently under a Fourth Amendment
analysis, finding no reason to wait for the future, because
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n119. See id. at 1504, 1505 n.14 (noting that the thermal imager can
detect activities such as a hot bath, a dishwasher, the oven and a
dehumidifier).
n120. See id. at 1504-05 (stating that "we are not prepared to
hold...that what one does in the privacy of one's basement is
undeserving of Fourth Amendment protection").
n121. Id. at 1503. The court noted that the military apparently
employs infrared devices which can identify the movement of the
human body through underbrush. See id. at 1504.
n122. See id. at 1503-04.
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at best, the government invites a re-evaluation of these issues at
some indeterminate time in the future; at worst, the government
would allow the privacy of the home to hinge upon the outcome of a
technological race of measure/counter-measure between the average
citizen and the government - a race, we expect, that the people will
surely lose. n123
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n123. Id. at 1503.
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Society expects privacy to be protected, including that which is
"not knowingly exposed to the public." n124 The court questioned
whether ordinary citizens "[were] aware that heat signatures can be
read with any greater accuracy than tea leaves." n125 Nonetheless,
the court held that "people retain a "reasonable expectation of
privacy' in the undetected, unmonitored performance of those
domestic activities that are not knowingly exposed to the public,"
which include "the heat signatures of their botanical endeavors."
n126 The court pointedly concluded that "the thermal imager used [in
this case] is quite plainly capable of revealing rather specific
information regarding the internal activities of the home." n127
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n124. Id. at 1506 (citing Dow Chem. Co. v. United States, 476 U.S.
227, 236 (1986)).
n125. Id. at 1505.
n126. Id. at 1506.
n127. Id. at 1504.
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In an earlier federal case, Unites States v. Field, n128 the court
reached the same conclusion on the issue of the warrantless use of a
thermal imager. The court in Field stated "whether a device is
[*1311] passive is irrelevant; what is relevant is what the device
records." n129 The court added that the fact
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- - - - - -
n128. 855 F. Supp. 1518 (W.D. Wis. 1994), overruled sub silentio by
United States v. Myers, 46 F.3d 668 (7th Cir.), cert. denied, 116 S.
Ct. 213 (1995).
n129. Id. at 1519. In response to the government's "underselling" of
the capability of the device, the court noted that "if the thermal
imager doesn't tell the government anything useful, then it has no
value in determining whether there is probable cause to issue a
search warrant." Id. at 1531.
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- - - - - -
that thermal imagers collect heat "passively" is a red herring.
High-powered telescopes [focused] on a partially open window in a
home are "passive:" they simply collect visible light that is
radiating from the room. But courts have said that the government
may not use high-powered telescopes to peer into peoples' homes.
n130
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n130. Id. at 1530 (citing United States v. Taborda, 635 F.2d 131,
139 (2d Cir. 1980) (stating that "any enhanced viewing of the
interior of a home [e.g., using a telescope] does impair a
legitimate expectation of privacy and encounters the Fourth
Amendment's warrant requirement")).
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The court also noted that "nonconsensual wiretaps are [similarly]
"passive': they simply collect processed sound waves pulsing through
a wire located outside of the home. But the government may not
intercept them without a court order." n131
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n131. Id. at 1531 (citing 18 U.S.C. 2510 et seq.).
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Concluding that the essence of "plain view" is predicated upon the
knowing exposure of information to the public, the court in Cusumano
I averred, "it is hardly "customary' for an individual to seek
privacy by controlling heat emissions, [or by relying] on the
insulating capacity of the walls." n132
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n132. Cusumano I, 67 F.3d at 1507.
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On this point, the Field court opined that "it is not convincing for
the government to argue that a homeowner "abandons' the heat that
escapes from every heat source within his house, including himself;
the truth is that the homeowner has no power to stop the escape of
such heat." n133 The Cusumano I court, however, did uncover legal
justification "that an individual is "entitled to assume' that the
heat signatures of domestic conduct will remain unmonitored." n134
At the very least, the Cusumano I court based its decision upon its
finding that it is not typical that
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n133. Field, 855 F. Supp. at 1519.
n134. Cusumano I, 67 F.3d at 1507 (citing Florida v. Riley, 488 U.S.
445, 451 (1989) (holding that observation of marijuana on private
land from a helicopter in navigable airspace does not violate Fourth
Amendment); California v. Ciraolo, 476 U.S. 207, 214-15 (1986)
(holding that the Fourth Amendment was not violated by naked-eye
aerial observation of backyard)).
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homes [are] scanned with thermal imagers, nor can the process by
which heat signatures escape through the walls of the home be termed
"voluntary" within the common usage of [*1312] that word. Heat
loss and heat conduction (or radiation) obey the laws of physics and
are not phenomena over which an individual customarily exerts
control. An individual no more chooses to have his or her home emit
infrared radiation than she or he chooses to absorb or reflect
visible light, but we have never heard the process of sight
described in terms of abandoned photons. n135
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n135. Id. at 1508 (footnotes omitted).
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VI. Conclusion
The continual advancement of technology requires an unending
interpretation of the Fourth Amendment. This is not a new
predicament for the Supreme Court because issues involving
computers, cellular phones and facsimiles have already undergone a
similar process. To limit law enforcement in their use of the latest
technological gadgets may not only provide criminal elements with an
unfair and undeserving advantage, but it may well be an unjust
interpretation of the Fourth Amendment.
However, "the Constitution sometimes insulates the criminality of a
few in order to protect the privacy of us all." n136 One side of the
issue argues that thermal scans are reasonable and thus permissable
under the Fourth Amendment because their performance is not overly
invasive of one's right to privacy. n137 The other side challenges
this notion contending that due to the intrusive nature of thermal
surveillance and the constitutionally protected privacy inherent in
one's home, the warrantless use of a thermal imager on a private
residence is an impermissible search. n138
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- - - - - -
n136. Arizona v. Hicks, 480 U.S. 321, 329 (1987) (holding that
stolen property unrelated to shooting not admissible where a police
officer entered premises to search for shooter).
n137. See, e.g., United States v. Myers, 46 F.3d 668 (7th Cir.),
cert. denied, 116 S. Ct. 213 (1995).
n138. See, e.g., Cusumano I, 67 F.3d at 1503-10; State v. Young, 867
P.2d 593 (Wash. 1994).
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As indicated above, the advancement in technology is on a continuum.
Three companies, sponsored by the Justice Department's National
Institute of Justice, are researching technology which can "perform
weapons searches on passersby, possibly from ninety feet away." n139
One prototype to be tested this year is a hand-held, battery-powered
device, small enough to be carried by police in their cars.
According to law professor David A. Harris of the University of
Toledo College of Law, this type of device would be a "moving
[*1313] electronic dragnet" enabling an officer to "do a frisk from
the inside a police car." n140
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- - - - - -
n139. Erik Milstone, New Devices Let Frisks Go Undercover, 82 A.B.A.
J. 32, 32 (Aug. 1996).
n140. Id.
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The courts are in a state of chaos (or "disarray" for the
kindhearted) when analyzing and ruling on cases involving thermal
imaging. It seems that this issue is the latest "hot potato" to
challenge American jurisprudence. This is precisely the reason that
the Supreme Court should accept the first appeal presented in an
effort to lay the ground work for legal implications of the Fourth
Amendment on twenty-first century technology. [*1314]
ADDENDUM
In the most recent case on thermal imaging, the Supreme Court of
Montana concluded that the use of thermal imaging in the context of
a criminal investigation constitutes a search under the Montana
State Constitution. n141 The court cited Cusumano I for the
proposition "that the pertinent inquiry is whether defendants
possess "an expectation of privacy in the heat signatures of the
activities, intimate or otherwise, that they pursue within their
home' and which they do not knowingly expose to the public," and not
"whether they possess an expectation of privacy in the "waste heat"
radiated from their home.'" n142 The court held that in the absence
of a search warrant, the use of a thermal imaging device requires a
compelling state interest other than enforcement of the criminal
laws. n143 The court relied heavily on the wishes of the citizens of
Montana in its reasoning. It noted that when the people of Montana
ratified a new State Constitution in 1972, they explicitly granted
Montana citizens the right to privacy as "essential to the
well-being of a free society and shall not be infringed without the
showing of a compelling state interest." n144 The court also based
its conclusion on section 11 of the Montana Constitution which
simply mirrors the Fourth Amendment to the United States
Constitution.
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n141. See State v. Siegal, No. 95-419, 1997 WL 104472, *2 (Mont.)
(citing Mont. Const. art. II, 10, 11).
n142. Id. at *15. The court did note that Cusumano I, was later
vacated on rehearing en banc, and that the Tenth Circuit declined to
decide the constitutional issue. See id. at *15 n.2.
n143. See id. at *2-3.
n144. Id. at *7 (quoting Mont. Const. art. II, 10).
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In Siegal, the defendants acquired densely forested property and
surrounded it with fencing, "No Tresspassing" signs, locked gates,
and orange fence posts. n145 The indoor marijuana grow operation was
conducted out of view in a building on the property. n146 As a
result of a search in 1994, Montana law enforcement agents
discovered marijuana plants in various states of maturity and
related paraphernalia. n147 The warrant used for the search was
secured, in part, with information gleaned from a warrantless search
of the premises using a thermal imager. n148
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n145. See id. at *16.
n146. See id. at *15.
n147. See id. at *1.
n148. See id.
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As if emphasizing their independence from federal restrictions, the
court explained that during the proceedings of the 1972 Montana
Constitutional Convention, the delegates expressed a particular
concern regarding the intrusion of the government into the privacy
of its citizens through the use of electronic monitoring and
surveillance. n149 The delegated conceded, however, that such
technology is justified only in the most serious of situations
involving matters of national security and specifically such heinous
crimes where it is necessary to "risk the right of individual
privacy because there is a greater purpose to be served." n150
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- - - - - -
n149. Id. at *9, *18-19.
n150. Id. at *19 (citing Montana Constitutional Convention, Verbatim
Transcript, March 7, 1972, at 1687).
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The court stated that the citizens of Montana are granted "broader
protections" than those afforded by the Federal Constitution. n151
The court held that it "would not be bound by decisions of the
United States Supreme Court where independent grounds exist for
reaching a contrary result." n152 Generally, the Montana Supreme
Court would analyze search and seizure issues under article II,
section 11 of its constitution. n153 Due to the uniqueness of the
issue involving the latest technology and "Montana's heightened
expectations of privacy," the court was compelled to also analyze
the issue under Montana's constitutional right of privacy under
article II, section 11. n154
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- - - - - -
n151. Id. at *8.
n152. Id. (citing State v. Solis, 693 P.2d 518, 521 (Mont. 1984)).
n153. See id. at *17.
n154. See id. at *17, *18.
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The Court concluded "that persons have an actual (subjective)
expectation of privacy in heat signatures of activities, intimate or
otherwise, which they pursue within the confines of their private
homes and enclosed structures and which they do not knowingly expose
to the public." n155 Due to "Montana's heightened expectations of
privacy," this expectation is one which Montana society is willing
to recognize as objectively reasonable. n156
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n155. Id. at *17.
n156. Id.
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