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121 S.Ct. 2038 Supreme Court of the United States Danny Lee KYLLO, Petitioner, v. UNITED STATES. No. 99–8508. | Argued Feb. 20, 2001. | Decided June 11, 2001. Opinion Justice SCALIA delivered the opinion of the Court. This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public street to **2041 detect relative amounts of heat within the home constitutes a “search” within the meaning of the Fourth Amendment. I In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires high-intensity lamps. In order to determine whether an amount of heat was emanating from petitioner’s home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmth—black *30 is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. The scan of Kyllo’s home took only a few minutes and was performed from the passenger seat of Agent Elliott’s vehicle across the street from the front of the house and also from the street in back of the house. The scan showed that the roof over the garage and a side wall of petitioner’s home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex. Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house, which indeed he was. Based on tips from 94 informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner’s home, and the agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. On remand the District Court found that the Agema 210 “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”; it “did not show any people or activity within the walls of the structure”; “[t]he device used cannot penetrate walls or windows to reveal conversations or human activities”; and “[n]o intimate details of the home were observed.” Supp.App. to Pet. for Cert. 39–40. Based on these findings, the District Court upheld the validity of the warrant that relied in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially reversed, 140 F.3d 1249 (1998), but that *31 opinion was withdrawn and the panel (after a change in composition) affirmed, 190 F.3d 1041 (1999), with Judge Noonan dissenting. The court held that petitioner had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, id., at 1046, and even if he had, there was no objectively reasonable expectation of privacy because the imager “did not expose any intimate details of Kyllo’s life,” only “amorphous ‘hot spots’ on the roof and exterior wall,” id., at 1047. We granted certiorari. 530 U.S. 1305, 121 S.Ct. 29, 147 L.Ed.2d 1052 (2000). II [1] The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” “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.” **2042 Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no. See Illinois v.
Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). On the other hand, the antecedent question whether or not a Fourth Amendment “search” has occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance of a home used to be clear because, well into the 20th century, our Fourth Amendment jurisprudence was tied to common-law trespass. See, e.g., Goldman v. United States, 316 U.S. 129, 134–136, 62 S.Ct. 993, 86 L.Ed. 1322 (1942); Olmstead v. United States, 277 U.S. 438, 464–466, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Cf. Silverman v. United States, supra, at 510–512, 81 S.Ct. 679 (technical trespass not necessary for Fourth Amendment violation; it suffices if there is “actual intrusion into a constitutionally protected area”). Visual surveillance was unquestionably lawful because “ ‘the *32 eye cannot by the laws of England be guilty of a trespass.’ ” Boyd v. United States, 116 U.S. 616, 628, 6 S.Ct. 524, 29 L.Ed. 746 (1886) (quoting Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K.B.1765)). We have since decoupled violation of a person’s Fourth Amendment rights from trespassory violation of his property, see Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), but the lawfulness of warrantless visual surveillance of a home has still been preserved. As we observed in California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), “[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.” One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a “search”1 despite the absence of trespass, is not an “unreasonable” one under the Fourth Amendment. See Minnesota v. Carter, 525 U.S. 83, 104, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (BREYER, J., concurring in judgment). But in fact we have held that visual observation is no “search” at all—perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional. See Dow Chemical Co. v. United States, 476 U.S. 227, 234–235, 239, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986). In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth—a location not within the catalog (“persons, houses, papers, and effects”) that the Fourth 95 Amendment protects against unreasonable searches. We held that the *33 Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he “justifiably relied” upon the privacy of the telephone booth. Id., at 353, 88 S.Ct. 507. As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. See id., at 361, 88 S.Ct. 507. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur—even when the explicitly protected location of a house is concerned— unless “the individual manifested a subjective expectation of privacy **2043 in the object of the challenged search,” and “society [is] willing to recognize that expectation as reasonable.” Ciraolo, supra, at 211, 106 S.Ct. 1809. We have applied this test in holding that it is not a search for the police to use a pen register at the phone company to determine what numbers were dialed in a private home, Smith v. Maryland, 442 U.S. 735, 743–744, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and we have applied the test on two different occasions in holding that aerial surveillance of private homes and surrounding areas does not constitute a search, Ciraolo, supra; Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989). The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found “it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened,” 476 U.S., at 237, n. 4, 106 S.Ct. 1819 (emphasis in original). III It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been *34 entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private. See Ciraolo, supra, at 215, 106 S.Ct. 1809. The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.
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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
Page 43 and 44: 11 Jones v. United States, 362 U.S.
Page 45 and 46: 103 S.Ct. 2317 Supreme Court of the
Page 47 and 48: accompanying remedy. Here, for exam
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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
Page 57 and 58: forcefully suggest that the exclusi
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
Page 67 and 68: Americans must be that the Court gi
Page 69 and 70: 3 In Spinelli, police officers obse
Page 71 and 72: The only reference to Hereford’s
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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
Page 83 and 84: *126 In sum, the federal agents did
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Page 93: 26 See, e.g., Michigan v. Long, 463
Page 97 and 98: how relatively warm—Kyllo was hea
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Page 101 and 102: homeowner would even care if anybod
Page 103 and 104: 4 This view comports with that of a
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Page 111 and 112: 3 Kyllo was concerned with whether
Page 113 and 114: (500 grams and an unspecified amoun
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Page 117 and 118: AFFIRMED. We retain jurisdiction an
Page 119 and 120: that “[t]he right of the people t
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
Page 139 and 140: III Framing the Canine Home-Sniff D
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Page 143 and 144: possessions. Without minimizing the
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4. Even Surreptitious Canine Sniffs
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the sniff--to the satisfaction of a
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focused on the routineness of the a
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6 See People v. Dunn, 564 N.E.2d 10
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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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