- The Washington Times - Wednesday, June 13, 2001

An interesting alliance of liberals and conservatives on the Supreme Court took a stand on Monday against the encroachment of technology upon Fourth Amendment guarantees — handing down a 5-4 decision that law-enforcement officers must obtain a proper search warrant before using devices such as infrared heat detectors to "scan" a private residence.
The case at issue involved the arrest and subsequent conviction of an Oregon man who was found to be growing marijuana in his home. What made the case unusual was the use by police of thermal imaging equipment to effectively "see" what was going on in the house without physically searching it. The thermal imaging equipment was able to detect the heat signature of the high-intensity grow lamps used by Danny Lee Kyllo to nurture his illegal crop of marijuana plants. Police subsequently raided the Kyllo home and arrested him for having some 100 pot plants on the premises.
The conviction was appealed on Fourth Amendment grounds specifically, that the use of the thermal imaging equipment amounted to a search without a warrant that was therefore unconstitutional. The majority opinion of the Supreme Court agreed with this view. Writing for the majority, Associate Justice Antonin Scalia explained that "Where, as here, the government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search and is presumptively unreasonable without a warrant." He added that the use of such technology by law-enforcement officers without a warrant would "shrink the realm of guaranteed privacy" and would "leave the homeowner at the mercy of advancing technology including imaging technology that could discern all human activity in the home."
Its a good thing the majority saw the danger presented by the unlimited use of intrusive technology to observe, monitor and record our activities. The idea that the authorities might be allowed to lawfully trundle down neighborhood streets, pointing their latest electronic gear at any, perhaps all, the homes they passed, just to see is a creepy one indeed. Nabbing a few suburban pot farmers is not worth the price of our right to be secure in our own homes against the prying eyes of government.
Free governments do not randomly watch or search the citizenry. Unfree governments do. Free governments trust the people; unfree ones do not. No authoritarian society has a Fourth Amendment. We do and its a legacy worth protecting, even if it means a little more paperwork for the police.

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