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observing snowmelt on the roof, post, at 2048—is quite irrelevant. The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment. The police might, for example, learn how many people are in a particular house by setting up year-round surveillance; but that does not make breaking and entering to find out the same information lawful. In any event, on the night of January 16, 1992, no outside observer could have discerned the relative heat of Kyllo’s home without thermal imaging. 3 The ability to “see” through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development. The National <strong>Law</strong> Enforcement and Corrections Technology Center, a program within the United States Department of Justice, features on its Internet Website projects that include a “Radar–Based Through–the–Wall Surveillance System,” “Handheld Ultrasound Through the Wall Surveillance,” and a “Radar Flashlight” that “will enable law enforcement officers to detect individuals through interior building walls.” www.nlectc.org/techproj/ (visited May 3, 2001). Some devices may emit low levels of radiation that travel “through-the-wall,” but others, such as more sophisticated thermal-imaging devices, are entirely passive, or “off-the-wall” as the dissent puts it. 4 The dissent asserts, post, at 2049, n. 3, that we have misunderstood its point, which is not that inference insulates a search, but that inference alone is not a search. If we misunderstood the point, it was only in a good-faith effort to render the point germane to the case at hand. The issue in this case is not the police’s allegedly unlawful inferencing, but their allegedly unlawful thermal-imaging measurement of the emanations from a house. We say such measurement is a search; the dissent says it is not, because an inference is not a search. We took that to mean that, since the technologically enhanced emanations had to be the basis of inferences before anything inside the house could be known, the use of the emanations could not be a search. But the dissent certainly knows better than we what it intends. And if it means only that an inference is not a search, we certainly agree. That has no bearing, however, upon whether hi-tech measurement of emanations from a house is a search. 5 The Government cites our statement in California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), noting apparent agreement with the State of California that aerial surveillance of a house’s curtilage could become “ ‘invasive’ ” if “ ‘modern technology’ ” revealed “ ‘those intimate associations, objects or activities otherwise imperceptible to police or fellow citizens.’ ” Id., at 215, n. 3, 106 S.Ct. 1809 (quoting Brief for State of California 14–15). We think the Court’s focus in this secondhand dictum was not upon intimacy but upon otherwise-imperceptibility, which is precisely the principle we vindicate today. 6 The dissent argues that we have injected potential uncertainty into the constitutional analysis by noting that whether or not the technology is in general public use may be a factor. See post, at 2050. That quarrel, however, is not with us but with this Court’s precedent. See Ciraolo, supra, at 215, 106 S.Ct. 1809 (“In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet”). Given that we can quite confidently say that thermal imaging is not “routine,” we decline in this case to reexamine that factor. 1 After an evidentiary hearing, the District Court found: “[T]he use of the thermal imaging device here was not an intrusion into Kyllo’s home. No intimate details of the home were observed, and there was no intrusion upon the privacy of the individuals within the home. The device used cannot penetrate walls or windows to reveal conversations or human activities. The device recorded only the heat being emitted from the home.” Supp.App. to Pet. for Cert. 40. 2 Thus, for example, we have found consistent with the Fourth Amendment, even absent a warrant, the search and seizure of garbage left for collection outside the curtilage of a home, California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); the aerial surveillance of a fenced-in backyard from an altitude of 1,000 feet, California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); the aerial observation of a partially exposed interior of a residential greenhouse from 400 feet above, Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989); the aerial photography of an industrial complex from several thousand feet above, Dow Chemical Co. v. United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986); and the observation of smoke emanating from chimney stacks, Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974). 3 Although the Court credits us with the “novel proposition that inference insulates a search,” ante, at 2044, our point simply is that an inference cannot be a search, contrary to the Court’s reasoning. See supra, at 2048 and this page. Thus, the Court’s use of United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), to refute a point we do not make underscores the fact that the Court has no real answer (either in logic or in law) to the point we do make. Of course, Karo itself does not provide any support for the Court’s view that inferences can amount to unconstitutional searches. The illegality in that case was “the monitoring of a beeper in a private residence” to obtain information that “could not have [been] obtained by observation from outside,” id., at 714–715, 104 S.Ct. 3296, rather than any thought processes that flowed from such monitoring. 102
4 This view comports with that of all the Courts of Appeals that have resolved the issue. See 190 F.3d 1041 (C.A.9 1999); United States v. Robinson, 62 F.3d 1325 (C.A.11 1995) (upholding warrantless use of thermal imager); United States v. Myers, 46 F.3d 668 (C.A.7 1995) (same); United States v. Ishmael, 48 F.3d 850 (C.A.5 1995) (same); United States v. Pinson, 24 F.3d 1056 (C.A.8 1994) (same). But see United States v. Cusumano, 67 F.3d 1497 (C.A.10 1995) (warrantless use of thermal imager violated Fourth Amendment), vacated and decided on other grounds, 83 F.3d 1247 (C.A.10 1996) (en banc). 5 The record describes a device that numbers close to a thousand manufactured units; that has a predecessor numbering in the neighborhood of 4,000 to 5,000 units; that competes with a similar product numbering from 5,000 to 6,000 units; and that is “readily available to the public” for commercial, personal, or law enforcement purposes, and is just an 800–number away from being rented from “half a dozen national companies” by anyone who wants one. App. 18. Since, by virtue of the Court’s new rule, the issue is one of first impression, perhaps it should order an evidentiary hearing to determine whether these facts suffice to establish “general public use.” 6 The use of the latter device would be constitutional given Smith v. Maryland, 442 U.S. 735, 741, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which upheld the use of pen registers to record numbers dialed on a phone because, unlike “the listening device employed in Katz ... pen registers do not acquire the contents of communications.” End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works. 103
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UNIVERSITY OF THE DISTRICT OF COLUM
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article that appeared in the period
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incarcerated children in the Distri
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Section 3: Writing Exercise Section
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Opinion PERRY, J. 73 So.3d 34 Supre
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activities, or statements that he e
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damaged package and notified federa
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B. “Sniff Test” at a Private Ho
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was standing in front of the door,
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justified on the basis of reasonabl
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The probable cause affidavit listed
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unwavering expectation that there w
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otherwise prompt his dog to alert.
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(quoting State v. Morsman, 394 So.2
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society recognizes as reasonable. A
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obtained through the search is not
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without implicating the Fourth Amen
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[14] The Government contends, howev
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the President and Attorney General
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nuisance. IV Blackstone, Commentari
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The other ‘eroding’ case cited
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11 Jones v. United States, 362 U.S.
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103 S.Ct. 2317 Supreme Court of the
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accompanying remedy. Here, for exam
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northbound on an interstate frequen
Page 51 and 52: inapplicable to the decision to iss
Page 53 and 54: L.Ed. 1879 (1949). Justice BRENNAN
Page 55 and 56: case. As the Court points out, “I
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Page 59 and 60: S.Ct., at 3073-3074. (WHITE, J., di
Page 61 and 62: law-enforcement officers have recog
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Page 65 and 66: advance an important underlying sub
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Page 69 and 70: 3 In Spinelli, police officers obse
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Page 75 and 76: susceptible to the interpretation t
Page 77 and 78: 8 Rugendorf v. United States, 376 U
Page 79 and 80: 104 S.Ct. 1652 Supreme Court of the
Page 81 and 82: will not be betrayed.” United Sta
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Page 91 and 92: 1437, 4 L.Ed.2d 1688 (1960); Henry
Page 93 and 94: 26 See, e.g., Michigan v. Long, 463
Page 95 and 96: Rodriguez, 497 U.S. 177, 181, 110 S
Page 97 and 98: how relatively warm—Kyllo was hea
Page 99 and 100: concurring). To be sure, the homeow
Page 101: homeowner would even care if anybod
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Page 107 and 108: probable cause to stop the car for
Page 109 and 110: and, implicitly, the application of
Page 111 and 112: 3 Kyllo was concerned with whether
Page 113 and 114: (500 grams and an unspecified amoun
Page 115 and 116: authority to allow police inside th
Page 117 and 118: AFFIRMED. We retain jurisdiction an
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Page 121 and 122: field” did not constitute a Fourt
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Page 125 and 126: y the government upon the privacy o
Page 127 and 128: own difficulties. It involves a deg
Page 129 and 130: search unless it is achieved by suc
Page 131 and 132: 88 Or. L. Rev. 829 Oregon Law Revie
Page 133 and 134: hidden in open locations, such as f
Page 135 and 136: While the Place Court’s failure t
Page 137 and 138: location may be important in evalua
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Page 143 and 144: possessions. Without minimizing the
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Page 149 and 150: focused on the routineness of the a
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27 See Robert C. Bird, An Examinati
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323 (Friedrich G. Barth et al. eds.
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pre-Place decisions issued by the U
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97 See Illinois v. Caballes, 543 U.
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121 Id. at 37 n.4 (majority opinion
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147 462 U.S. 696 (1983). 148 See in
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171 Dunaway v. New York, 442 U.S. 2
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199 As Justice Souter explained,
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to school). 219 Cf. Katz & Golembie
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240 See Kyllo v. United States, 533
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263 In 2004, photographs emerged th
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285 Id. at 1362. The story of this
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306 But cf. Fitzgerald v. State, 86
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328 Riley, 488 U.S. at 448 (observi
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1 Search & Seizure § 2.3 (4th ed.)
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establish a right to privacy therei
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were locked and could only be opene
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The Wright rule also should not be
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to investigate. Noting that a metal
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active domestic use. It housed ten
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Ciraolo,191 involving aerial survei
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ackyard of the building was complet
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feet. The viewing from the helicopt
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cases as Ciraolo, Riley and Dow man
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premises were abandoned where all c
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22 Young v. Harrison, 284 F.3d 863
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37.1 McKenney v. Harrison, 635 F.3d
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(1983); State v. Eddy, 519 A.2d 113
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68 Dinkens v. State, 291 So.2d 122
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eceived no answer to knock on front
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870 (1987). In such a case, the fac
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“Second, the agents had a legal r
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131 United States v. Llanes, 398 F.
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167 The reference is to the “open
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however by fact lights were on insi
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properly crossed defendant’s land
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view”); State v. Merrill, 252 Neb
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the area within the ‘curtilage’
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is not to conclude that a search of
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265 Such analysis was challenged by
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