Scalia Hits a Clinker
The Supremes take away a tool in the drug war.

Mr. Dunphy* is an officer of the Los Angeles Police Department
June 22, 2001 8:40 a.m.

unphy is feeling his oats today. So much so, in fact, that I dare to pick a fight with none other than Antonin Scalia. Yes, I can already hear the howls out there in NRO Land. "Dunphy," you say, "you must be mad! Scalia is one of our most luminous intellectual lights, perhaps the most brilliant justice since John Marshall. And you, after all, are just some dumb cop."

Well, maybe so. I have nothing but the very highest regard for Justice Scalia and his brand of jurisprudence. I would much prefer to live with his decisions than those of his brethren who subscribe to that pernicious-yet-advancing notion that the Constitution is a "living document," one that changes to conform to evolving — or devolving — mores. But even one of such staggering intellectual gifts as Justice Scalia can hit a clinker once in a while, and I submit that his opinion in Kyllo v.United States is just such a clinker. One need only note that Justices Ginsburg and Souter joined the opinion to know something is amiss.

Danny Kyllo was convicted of growing more than 100 marijuana plants inside his Florence, Oregon home. (Note to libertarians and dope fiends: Dunphy is a drug warrior of the first stripe. Read on if you must, but spare me the sic semper tyrannis e-mail.) Acting on an informant's tip, a federal agent parked his car on the street outside Kyllo's home and used a thermal-imaging device to scan the heat signature emanating from the triplex. The scan revealed that portions of Kyllo's unit were substantially warmer than others in the same building, indicating the possible use of the heat-generating halide lamps common to "indoor grows." Armed with this information and other investigative data, the agent obtained a warrant authorizing the search of Kyllo's home.

Writing for the majority in the 5-4 decision to reverse the conviction, Scalia ruled that use of the thermal-imaging device constituted a "search" within the meaning of the Fourth Amendment and should therefore have been authorized by a warrant. Thermal imagers, Scalia wrote, reveal "information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area…" He even goes on to say that such devices might disclose to police officers "at what hour each night the lady of the house takes her daily sauna and bath, a detail that many would consider intimate…"

And that is where I — and the dissenters — disagree. Thermal-imaging devices cannot look through walls; they reveal nothing about the interior of a home. Rather, they indicate which portions of the home's exterior are warmer or cooler than others, from which information a police officer must draw inferences. If for some reason I wished to determine the hour at which the lady of the house took her daily sauna and bath, I could stand on the sidewalk, listen for the sound of running water, and look for steam coming from the bathroom window, an exercise in which a thermal-imaging device would offer little advantage and which the Fourth Amendment would not prohibit.

It is settled law that there is no reasonable expectation of privacy in that which is exposed to public view. Aerial reconnaissance of marijuana being grown on private property is not illegal as long as the aircraft is not flown at an unreasonably low altitude. It is also settled law that a trained and experienced police officer may draw inferences from facts that might not arouse suspicion in the ordinary citizen. Many police departments operate helicopters equipped with thermal-imaging devices, the primary function of which is to aid in the search for fleeing suspects. But suppose for a moment that a fleeing bank robber chooses to hide in the backyard of the local marijuana grower or methamphetamine manufacturer. If in the course of searching for the bank robber the helicopter-borne officer uses a thermal-imaging device to scan the neighborhood and recognizes, in addition to the image of the bank robber hiding in the bushes, a heat pattern indicative of illegal drug manufacturing, should that officer then ignore what he has detected because he has inadvertently conducted a "search" of the drug dealer's home?

Justice Scalia also noted that thermal-imaging devices are not in general public use and that their use must therefore be construed as a "search." But in this assertion he ignores the precedent of United States v Place, cited by Justice Stevens in his dissent. In Place, the Court ruled that the use of a trained narcotics-detection dog to sniff luggage is not a "search" if the luggage has not been unreasonably seized. Certainly such dogs are also not in common use, no more so than thermal imagers, and like thermal imagers these dogs detect only that which emanates from the exterior of the items being examined.

The Kyllo decision denies police officers a valuable tool in the fight against drugs, a fight worth continuing.

And with that I must be off: I hear my neighbor's shower running.

(*Jack Dunphy is the author's nom de cyber. The opinions expressed are his own and almost certainly do not reflect those of the LAPD management .)