Opinion of the Court. NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are. Full-length feature article on Kyllo v. United States, which was heard by the United States Supreme Court in February Drawn from the full-text version of. In Agent William Elliott of the United States Department of. Interior began to suspect that Danny Kyllo was using his home for the indoor cultivation of.
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Due to the lapse in appropriations, Department of Justice websites will not be regularly updated. Whether the use of thermal imaging to record the relative amount of heat emanating from the v.uniged of a house constitutes a “search” within the meaning of the Fourth Amendment.
The opinion of the court of appeals Supp. An earlier opinion Supp. The opinion of the district court Supp. The judgment of the court of appeals was entered on September 9, The petition for a writ of certiorari was filed on March 7,and certiorari was granted on September 26, The jurisdiction of this Court rests on 28 U.
After a conditional guilty plea in the United States District Court for the District of Oregon, petitioner was convicted on one count of manufacturing marijuana, in violation of 21 U. He was sentenced to 63 months’ imprisonment, to be followed by four years of supervised release. The court of appeals vacated and remanded for a hearing on petitioner’s motion to suppress.
After an evidentiary hearing, the district court denied petitioner’s motion to suppress. The court of appeals reversed. On rehearing, the court of appeals affirmed. An affidavit in support of a request for a warrant to search petitioner’s house contained the following information. In Julyauthorities executed a federal search warrant at Shook’s residence in Dalles, Oregon, and found an indoor marijuana “grow” operation.
In OctoberShook’s ex-wife told authorities that Shook’s daughter, Tova Shook, had an active role in Shook’s operation, and that she lived in Florence, Oregon. Telephone toll records revealed that Sam Shook regularly placed calls to telephone number at Rhododendron Drive, Florence, Oregon, and a check of Department of Motor Vehicle records indicated that Tova Shook lived at that address.
Kyllo v. United States – Wikipedia
In late or earlya reliable informant advised the Oregon State police that an unwitting informant had told him that he had been inside Tova Shook’s residence in the Florence, Oregon area, and had seen a big kylll marijuana grow operation. A state police officer drove by the residence at Rhododendron Drive and saw two vehicles registered to Tova Shook parked outside. Subpoenaed utility records showed that power usage at Rhododendron Drive was in Lorie Kyllo’s name, with a telephone number ofthe same number that Sam Shook frequently called.
The house at Rhododendron Vv.united was part of a triplex. In late or earlya reliable state told an Oregon State police officer that he had overheard a conversation in which Danny Kyllo stated that he had marijuana for sale, and that if he was not at the residence, the marijuana could be purchased from his wife, Luanne Kyllo.
Kyllo v. United States – Merits
In DecemberLuanne had been arrested for delivery and possession of a controlled substance. Subpoenaed utility records showed that, v.unitd May to Decemberthe residences at and Rhododendron Drive used an abnormally high amount of electricity.
Electrical use at Rhododendron Drive was high for approximately three to four months, then decreased for three months; electrical use at Rhododendron Drive was consistently high.
In v.united experience of Agent Elliott, those figures were consistent with a staggered indoor marijuana grow operation: Based on his experience, Agent Elliott inferred that a marijuana grow operation began at Tova Shook’s residence at Rhododendron and was completed at petitioner’s residence at Rhododendron Drive. Syates January 16,between v.uniged The thermal scan showed a high amount of heat emanating from the roof over the garage and the side wall of petitioner’s house.
In addition, it showed that petitioner’s house was emitting more heat than the other houses in the triplex.
The unusual heat loss detected by the imager was consistent with the heat loss associated with marijuana grow operations that Detective Haas had observed in the past. Putting the information supplied by Haas together with the information he had already collected, Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house. Based on the information vv.united by Elliott, a federal magistrate judge issued a warrant authorizing a search of both petitioner’s and Tova Shook’s residences.
Agents executing the warrants at petitioner’s house found an indoor marijuana growing operation involving more v.unired plants, weapons, and drug paraphernalia. At Ktllo residence, agents found dried marijuana and indications that marijuana was being distributed.
Petitioner was indicted on one count of manufacturing marijuana, in violation of 21 U. After the district court denied his motion to suppress the evidence seized from his house, petitioner entered a conditional guilty plea. The court of appeals remanded to the district court for an evidentiary hearing on the capabilities of the Agema thermal imaging device.
The court stated that:. We must have some factual basis for gauging the intrusiveness of the thermal imaging device, which depends on the quality and the degree of detail of information that it can glean.
Testimony at the hearing on remand described the operation of the imager. The testimony can be summarized statds follows. Virtually all objects emit infrared radiation. Unless an object becomes molten hot, however, infrared radiation is not visible to the naked eye. A thermal imager is able to detect infrared radiation. The imager gathers the infrared radiation vunited is emitted from the outside surface of the object at which it is pointed.
The imager then converts what it has detected into a visible image that it displays on a screen. An imager is passive; it does not send out any rays.
It is similar to a camera in that respect, except that a camera collects energy from the visible range of the electromagnetic spectrum, while imagers collect information from the infrared range. When the Agema imager detects areas that are relatively warm, it displays them as white; when it detects areas that are relatively cool, it displays them as black; and when it detects areas between the extremes, it displays them as shades of gray.
A polarity invert button on the imager changes the warmer spots from white to black and the cooler spots from black to white. The Agema imager shows only relative heat patterns; it does not measure temperature in absolute terms. Members of the public stayes buy or rent the Agema and similar infrared imaging systems from national companies.
Thermal imagers are commonly used to inspect electrical equipment for loose connections or corroded wires and to survey roofs for areas that are saturated with moisture. When a thermal imager is pointed at a wall composed of normal construction materials, such as lath, plaster, plasterboard, stucco, or brick, it detects the radiation that is emitted or reflected from the outside surface of the wall.
An imager cannot see through a wall. In an in-court demonstration, a thermal imager was pointed at a window, and it could not detect the person standing behind it. In certain circumstances, however, a thermal imager has the capacity to detect radiant heat through windows.
Whether it could do so would depend on the type of glass, the thickness of the glass, the wavelength of the camera, and the kind of lens that is used. A thermal imager cannot “see” an object through thin curtains unless the object is directly pressed up against the curtains.
An imager can detect activity through an open window. The best time to conduct a thermal scan is late at night or early in the morning; otherwise the scan may detect the effects of the sun. In addition, in order to obtain the most accurate reading, a person using a thermal imager would compare the building that is the subject of the scan to a building that is composed of similar materials. A person cannot determine on the basis of a thermal image reading alone that there is a marijuana growing operation present inside a particular building.
The most that can be said is that there is a thermal variance or thermal anomaly-something that looks different in the field of view. Detective Haas performed the thermal scan at issue in this case from the passenger seat of Agent Elliott’s vehicle across the street from the front of petitioner’s house. He then drove across the street and viewed the building from the back of the house. A videotape recording of the thermal scan of petitioner’s house shows that the exterior of the center building petitioner’s house is radiating more heat than the exterior of the other two buildings.
In particular, the roof above the garage and the side wall of petitioner’s house appear as either white or light gray, indicating that those areas are unusually warm. Ibid; see also J. After conducting the hearing, the district court again denied petitioner’s motion to suppress.
It found that the Agema “is a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house. The court also found that “[t]he device cannot and did not show any people or activity within the walls of the structure.
The court further found that “the use of thermal imaging here was not an intrusion into [petitioner’s] home,” that “[n]o intimate details of the home were observed,” that “there was no intrusion upon the privacy of the individuals within the home,” that “[t]he device used cannot penetrate walls or windows to reveal conversations or human activities,” and that “[t]he device recorded only the heat emitted from the home.
Based on those findings, the district court held that the use of the Agema did not constitute a search of petitioner’s house, and thus did not require a warrant. The court of appeals, by a vote, reversed and remanded, finding that the use of the thermal imager constituted a search within the meaning of the Fourth Amendment. On rehearing, however, the court of appeals, again by a vote, affirmed.
KYLLO V. UNITED STATES
The court of appeals applied stages two-part test to determine whether the use of the thermal imager constituted a search. The court first asked whether the use of the imager intruded on an actual subjective expectation of privacy. It then asked whether the expectation is one that society recognizes as objectively reasonable. Accepting as not clearly erroneous the district court’s findings, the court of appeals held that petitioner had failed to satisfy either the subjective or the objective component of the two-part test.
The court of appeals held that petitioner failed to satisfy the subjective component because the imager detected only heat emissions, and petitioner had not manifested a subjective srates of privacy in those emissions.
The court v.unietd that “[t]he Agema scan simply indicated that seemingly anomalous waste heat was radiating from the outside surface v.unitted the home. Because petitioner “made no attempt to conceal these emissions,” he demonstrated “a lack of concern with the heat emitted and a lack of a subjective privacy expectation in the heat.
The court emphasized that “[w]hile this technology may, in other circumstances, be or become advanced to the point that its use will step over the edge from permissible non-intrusive observation into impermissible warrantless search, we find no violation of the Fourth Amendment on v.uited facts.
Judge Noonan concluded that the government’s use of the Agema infringed upon petitioner’s expectation of privacy “as to what was going on in the interior of his house.
The use of the thermal imager in this case was not a Fourth Amendment search. The thermal imager detected heat radiating from the exterior of petitioner’s house, and it did stares invade the home or reveal detailed activities or, indeed, any activities within the home itself. As such, the imager represented a permissible means for law enforcement to gather information without previously obtaining a search warrant.
United States, U. The Court has asked first whether an individual has a subjective expectation of privacy, and, second, whether the expectation is objectively reasonable. In this case, the latter inquiry is dispositive. Technological developments hold a serious potential to encroach on privacy, and in no context is the use of technology to conduct observations more sensitive than an individual’s home. But thermal imagers do not literally or figuratively penetrate the home and reveal private activities within.
Unlike a hypothetical sophisticated X-ray device or microphone that could perceive activity through solid walls-observations that would amount to searches-a thermal imaging device passively detects only heat gradients on exterior surfaces and displays the read-outs as amorphous white or light gray blotches.
The acquisition of that information does not entail a search. Two principles frame the inquiry into whether the use of the thermal imager in this case infringed an expectation of privacy that society is prepared to recognize as reasonable. First, police officers who make observations from a location where they lawfully have a right to be are not generally conducting a Fourth Amendment search.