FREE ESSAY ON KYLLO, DANNY V. UNITED STATES

KYLLO, DANNY V. UNITED STATES

KYLLO, DANNY v. UNITED STATES
99-8508
Appealed From: 9th Circuit Court of Appeals (190 F.3d 1041)
Oral Argument: 2000 term (after Jan. 1, 2001)
The main subject in the Kyllo case deals with the advance in modern technology and how it
relates to constitutional law. The overall question in this case is whether or not the
use of thermal imaging technology should be used as a tool for searching the home of a
person. The argument by the appellant, Mr. Kyllo, uses the unreasonable search and
seizure clause of the Fourth Amendment as a defense against the use of thermal imaging
systems without a warrant to search for illegal drug production inside his home. Kyllo v.
U.S. is currently pending before the United States Supreme Court so the objective of this
essay is to explain the procedural history of this case and to predict a final result and
the implications of that prediction. 
The question presented to the court is: Does the 4th Amendment protect against the
warrantless use of a thermal imaging device which monitors heat emissions from a person's
private residence? As with any case, before any court, it is important to understand all
aspects of a case. For example, the facts, procedural history, issues, holding(s), legal
reasoning, sources of law, and values are all relevant to predicting a potential outcome
as the U.S. Supreme Court sees it. 
The facts and procedural history of the case are as follows. On January 16, 1992, at 3:20
a.m., Sergeant Daniel Haas of the Oregon National Guard examined, from his parked car, a
triplex of houses where Kyllo lived. The full nature of the examination involved the use
of an Agema Thermovision 210 thermal imaging device to "look" for heat generated from
inside the home of Kyllo. The purpose of the examination was to possibly locate an
abnormally high heat source coming from inside Kyllo's home, indicating the production of
marijuana. If marijuana is to be grown inside it must have some source of intense
ultraviolet light to aid it. Haas did indeed locate a high heat source in Kyllo's home
with the Agema 210 and noted that Kyllo's home "showed much warmer" than the other two
houses in the triplex (Find Law). This indicated the presence of lights used to grow
marijuana. This information was forwarded to William Elliot, an agent of the United
States Bureau of Land Management. Elliot had already subpoenaed Kyllo's utility records
as Kyllo was already under investigation for the production of marijuana. With the
information gathered by the use of the Agema 210, Elliot "inferred" that the high levels
of heat emission indicated the presence of high intensity lights used to grow marijuana
indoors (Find Law). Elliot presented this information to a judge and was issued a search
warrant. In searching Kyllo's home the Bureau of Land Management found more than one
hundred marijuana plants, weapons and drug paraphernalia. Kyllo was then indicted for
manufacturing marijuana and filed a motion to suppress the evidence on the grounds that
it was obtained illegally in accordance with the 4th Amendment. The district court denied
Kyllo's motion to suppress and he entered into a conditional guilty plea. Kyllo was
sentenced to prison for 63 months. Kyllo appealed the denial of the suppression of
motion, challenging the warrantless scan of his home with a thermal imager. In 1994, the
9th Circuit Court of Appeals reviewed whether the warrant used to search the home of
Kyllo was based on knowingly and recklessly false information in the affidavit for the
warrant (OTDNWU). The court reversed and remanded the decision of the district court and
sent the case back to hold an evidentiary hearing on the capabilities of the Afema 210.
Again the district court denied Kyllo's motion to suppress with the conclusion that
warrantless searches of homes with the Agema are permissible. Kyllo then appealed again
in 1998 to the 9th Circuit. The court of appeals found, in a 2-1 decision, that the use
of thermal imaging systems was unconstitutional. The government petitioned for a
rehearing and the case went back to the 9th Circuit which retired one judge and picked up
another. This time the decision was 2-1, holding that the monitoring of heat emissions by
a thermal imaging system does not intrude upon Kyllo's privacy. Kyllo recently appealed
to the U.S. Supreme Court where the case is currently pending with arguments expecting to
be heard in 2001. 
The main issue is a concern of privacy and how far the government can intrude into the
lives of citizens. With technology developing so rapidly it is difficult to rely on the
interpretations of the 4th Amendment and statutes that do not incorporate the newest
technologies. The question being asked to the Supreme Court is: Does the 4th Amendment
protect against warrantless use of a thermal imaging device which monitors heat emissions
from a person's private residence? 
The current holding of the U.S. District Court in Oregon and affirmed by the 9th Circuit
Court of Appeals would suggest that the Supreme Court would further affirm that decision.
However, the 9th Circuit Court holds only three judges and that court had already
reversed and remanded the decision made by the District Court. In order to predict what
the Supreme Court will decide it is important to investigate the legal reasoning behind
the previous decisions made in the lower courts. 
Investigating the case further requires that we investigate the reasons for the decisions
already made. In the opinion of the court, Circuit Judge Hawkins gives reasons for the
initial findings of the District Court of Oregon. The opinion states, "the district court
found that it (Agema 210) was 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"
(Find Law). Hawkins goes on further in the opinion to say that "The Agema 210 scan simply
indicated that seemingly anomalous waste heat was radiating from the outside surface of
the home, much like a trained police dog would be used to indicate that an object was
emitting the odor of illicit drugs"(Find Law). This analogy is difficult to parallel to
the use of thermal imaging devices because drug dogs have no specific targets. In this
case, Kyllo's home was targeted. 
Circuit Court Judge Noonan also used an analogy in his dissent. "The closest analogy is
use of a telescope that, unknown to the homeowner, is able from a distance to see into
his or her house and report what he or she is reading or writing. Such and enhancement of
normal vision by technology, permitting the government to discern what is going on in the
home, violates the Fourth Amendment"(OTDNWU). Noonan, an advocate of privacy goes on to
say, "Such activities can cause the emission of heat from the home which the Agema 210
can detect. The activity will be reported as well as where it is taking place"(Find Law).
Noonan is suggesting that the decision of the court creates precedent and would protect
the government from spying on people in their homes. However, previous cases that have
already set precedent were also investigated.
In the opinion of the court Hawkins mentions two specific sources of law. Hawkins writes,
"While a heightened privacy expectation in the home has been recognized for purposes of
Fourth Amendment analysis (Dow Chemical Co. v. U.S.), activities within a residence are
not protected from outside, non-intrusive, government observation, simply because they
are within the home or its curtilage (Florida v. Riley) (Find Law)". These two sources of
law give Hawkins' opinion good justification but the dissent also finds legal precedent.

In Montana v. Bullock and Peterson, 901 P.2d 61 (1995), the Supreme Court of Montana
ruled: "individuals have reasonable expectations of privacy" (Find Law). In this case
"reasonable expectations of privacy" can be interpreted differently by different
jurisdictions. This case challenged the legality of police to search property that they
don't own. 
The only problem with the sources of law is that there is no specific case that deals
directly with modern technology and its use as a search and seizure tool. There are
however contextual factors that exist here. For instance, many Americans, including Judge
Noonan, feel that there is a moral factor involved in deciding this type of case. If the
District Court Judgement is affirmed it is possible that other technological advances
such as satellite photography and video will invade the privacy of Americans.
If the Supreme Court holds with the trend of the United States District Court of Oregon
and the 9th Circuit Court of Appeals then the ultimate interpretation of the 4th
Amendment will be precedent for future search and seizure cases involving technological
monitoring. For this reason I believe that the U.S. Supreme Court will overturn the
Circuit Courts affirmation. The consequences for a reversal of the Circuit Courts
decision are few. The 4th Amendment would still protect the rights of citizens. The
negative aspect is that some drug dealers will go unnoticed. This is only a slight
inconvenience given that thermal imaging may still be used if a warrant is obtained.