Print Request: Selected Document(s): 18 Time of Request: May 20, 2004 09:31 PM EDT Number of Lines: 756 Job Number: 1861:0:17652610 Client ID/Project Name: Research Information: Note: 18 of 239 DOCUMENTS Copyright (c) 2003 Arkansas Law Review and Bar Association Journal, Inc. Arkansas Law Review 2003 56 Ark. L. Rev. 431 LENGTH: 9065 words CASE NOTE: Kyllo v. United States: Is the Court's Bright-Line Rule on Thermal Imaging Written in Disappearing Ink? Adam W. Brill * The author would like to thank Carlton Bailey, Associate Professor of Law, University of Arkansas School of Law, who provided thought-provoking insight, mentoring, and practitioner insights. The author would also like to thank Michael Heister, J.D. 2002, for providing critical analysis. SUMMARY: ... On June 11, 2001, the United States Supreme Court handed down its first opinion on whether the warrantless use of a thermal imager against the home constitutes a search. ... In district court, Kyllo filed a motion to suppress the evidence obtained by the warrantless use of the thermal imager. ... In a new, two-to-one decision, the Ninth Circuit held that Kyllo had no reasonable expectation of privacy against the use of a thermal imager on his home. ... It should be readily apparent, then, that the expectation of privacy that one has against a search may not apply when sense-enhancing devices are used against the curtilage, regardless of whether they are in the general public use. ... The holding in Kyllo should have been: absent a warrant, the use of a thermal imager constitutes a search wherever an expectation of privacy exists. ... Due to this move away from established precedent, the Court's holding fails to establish a bright-line rule as to whether the warrantless use of a thermal imager constitutes an unreasonable search. ... The irony is that because of the inherent vagueness in the Kyllo holding, there is no certainty as to whether the use of any device that enhances the senses, other than a thermal imager, will constitute a search. ... TEXT: [*431] I. INTRODUCTION* On June 11, 2001, the United States Supreme Court handed down its first opinion on whether the warrantless use of a thermal imager against the home constitutes a search. Contrary to most circuit court decisions and the predictions of experts, the Court disallowed their use in Kyllo v. United States. n1 In an opinion written by Justice Scalia, the Court held that using a sense-enhancing device that is not available for use by the general public constitutes a search. n2 Rather than deciding Kyllo on its particular facts and simply finding that the warrantless use of a thermal imager against the home is unconstitutional, the Court tried to prevent what it perceived as a future threat to the home. n3 However, by hinging the protection the home receives on whether the "sense-enhancing technology" is in "general public use," the Court effectively weakened its own ruling, n4 and ensured that the bright- [*432] line protections created in Kyllo are temporary rather than permanent. n5 This note will examine Kyllo's facts, its drawn-out and controversial procedural history, and the substantive history of search and seizure in the home. With this background, this note will then generally discuss the application of search-and-seizure law to the use of electronic-monitoring devices, sense-enhancing devices, and, finally, thermal imagers. The analysis will center on the holding in Kyllo by discussing the two interpretations applied to this case. Finally, this note will explain that the protection provided by Kyllo's holding - which provides that the government's warrantless use of thermal imagers on a citizen's home violates the Fourth Amendment - may be illusory because it relies on courts to define and re-define sense-enhancing devices and what may constitute general public use. II. STATEMENT OF FACTS In the early 1990s, the United States Bureau of Land Management ("BLM") allowed investigations of large-scale marijuana cultivation to include private homes when there was information that public lands were involved. n6 While investigating a large indoor marijuana growing and distribution operation, BLM Agent William Elliott discovered information that suggested Danny Kyllo was involved with the operation. n7 Elliott also received information from local and state law enforcement officers that possibly linked Kyllo and another suspect to an indoor operation at the same residence. n8 Along with other information, this led Elliott to subpoena Kyllo's utility records. n9 Using [*433] these records, Elliott estimated what Kyllo's average electricity use should have been and concluded that Kyllo's actual electricity use was excessive. n10 Elliott suspected that Kyllo was manufacturing marijuana in his home; a thermal scan would provide the answer. n11 At just after three o'clock in the morning, on January 16, 1992, without first securing a warrant, Elliott enlisted Daniel Haas, a Sergeant in the Oregon National Guard, to perform a thermal scan on Kyllo's home. n12 Haas utilized an Agema Thermovision 210 thermal imaging device n13 ("Agema 210") to examine Kyllo 's home. n14 After using the thermal imager, Haas surmised that there was extensive heat loss emanating from one of the walls and from the roof over the garage. n15 Haas also utilized the Agema 210 against two neighboring homes n16 to establish a baseline that Kyllo's home was "much warmer" than the surrounding homes. n17 Elliott interpreted the scan results to be consistent with the production of marijuana and inferred that the [*434] heat emissions were a likely indication of the presence of halide lamps. n18 Armed with this inference, Elliott presented the thermal scanner information, the electric bills, and an informant's statement in an affidavit to a magistrate. n19 A search warrant for Kyllo's home was executed on January 27, 1992. n20 The officers executing the warrant found live marijuana plants, dried marijuana, and growing equipment in Kyllo's attic. n21 Kyllo was subsequently indicted by a federal grand jury on February 20, 1992, for manufacturing marijuana in his residence. n22 III. PROCEDURAL DEVELOPMENT In district court, Kyllo filed a motion to suppress the evidence obtained by the warrantless use of the thermal imager. n23 The district court denied his motion to suppress, finding that the use of a thermal imager to track heat sources was not an unreasonable search. n24 Based on the district court's ruling, Kyllo entered a conditional guilty plea, reserving his right to appeal. n25 On appeal, the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. n26 On remand, the district court focused on the capabilities [*435] of the Agema 210 and found it to be "non-intrusive." n27 Subsequently, the district court affirmed the validity of thermal imaging to secure the warrant, and reaffirmed its denial of the motion. n28 On the second appeal, the Ninth Circuit reversed the district court, n29 finding that Kyllo had a subjective expectation of privacy against an intrusive search of his home. n30 It also found that thermal imaging revealed intimate activities and that it constituted an unreasonable search in violation of the Fourth Amendment. n31 However, this opinion was withdrawn upon a change in the composition of the court. n32 Over Kyllo's objection, the new panel reheard and affirmed the district court's decision. n33 In a new, two-to-one decision, the Ninth Circuit held that Kyllo had no reasonable expectation of privacy against the use of a thermal imager on his home. n34 Subsequently, the United States Supreme Court granted certiorari on September 26, 2000. n35 IV. SUBSTANTIVE DEVELOPMENT The case law relied upon by Kyllo v. United States n36 spans the historical aspects of privacy within the home, search, search of the home, electronic monitoring of the home, sense-enhancing devices, and, finally, thermal imagers. This section will analyze each of these topics in turn. [*436] A. The Home The notion that a "man's house is his castle," n37 originates from the earliest days of civilization. n38 Indeed, the home was held in such high regard in Babylonian times that one was forbidden to enter a home without permission, and to do so at night was punishable by death. n39 It is this protection from governmental intrusion that led the Founding Fathers to establish the Bill of Rights n40 in an effort to protect private homes from the quartering of troops and unreasonable searches and seizures. n41 The Supreme Court has long recognized that the home is entitled to the greatest protection allowed under the Fourth Amendment. n42 By following the notion that "certain enclaves should be free from government interference," the Court has repeatedly held that warrantless searches of the home are per se unreasonable. n43 In an effort to protect this right of privacy, the Founding Fathers enacted the Fourth Amendment, which provides that "the right of people to be secure in their . . . [*437] houses . . . against unreasonable searches and seizures, shall not be violated." n44 This privacy interest is not found in the fact that the premises are occupied, but in the intimate activities that take place within the home. n45 The right of a person to retreat into the home to be free from unreasonable government intrusion is at the very core of the Fourth Amendment. n46 B. Search n47 Katz v. United States, n48 the seminal case regarding whether a search is constitutional, provides that courts must determine whether a search is unreasonable, and hence unconstitutional, by ascertaining whether the person "exhibited an actual expectation of privacy," and whether that expectation is one which society is willing to recognize as reasonable. n49 Of course, the expectation of privacy must be one that is found or drawn from "the personal and societal values protected by the Fourth Amendment." n50 C. Search and the Home Because the "Fourth Amendment has drawn a firm line at the entrance" of the home, n51 any warrantless search or seizure within the home is presumptively unreasonable absent exigent circumstances. n52 Therefore, any non-consensual search n53 of the [*438] home must be accompanied by either a warrant executed by a "neutral and detached magistrate," n54 or by "exigent circumstances." n55 Prior to Kyllo, the Court had never applied the Katz I holding to the homeowner. Katz I adds to these exceptions by requiring that the homeowner must exhibit an actual expectation of privacy that the public is prepared to recognize. n56 In previous cases, the use of Katz I was limited to situations where privacy expectations were not clearly defined. n57 [*439] D. Search and the Curtilage Traditionally, the same body law governing the protection of the home has also applied to the area outside of the home. The historical significance of the moat surrounding the castle of the Dark Ages carried over to what English barristers eventually referred to as the "curtilage." n58 Early jurisprudence provided protection against trespass and intrusion to the outer ring or surrounding landscape of the home. n59 The Founding Fathers, impressed as to the importance of freedom from governmental intervention, passed this protection on to United States citizens through the Fourth Amendment. n60 In Dow Chemical Co. v. United States, n61 the Supreme Court agreed with the Founding Fathers, and held that the curtilage was also deserving of protection. n62 Nevertheless, Kyllo provides protection to the home in isolation, but discounts the value of the curtilage within the context of search. n63 Therefore, when a search against the home requires [*440] a warrant, a warrant may or may not also be required for a search of the corresponding curtilage. n64 E. Electronic Monitoring and the Home The Court has found electronic monitoring of the home to be an impermissible intrusion. n65 In United States v. Karo, n66 the Court held that the government 's use of a beeper to track the movement of chemicals within a private residence was unconstitutional. n67 This is because the beeper revealed information about the home that would not have been available unless the agent had personally entered the home in secret. n68 Therefore, a [*441] search is unconstitutional if it is conducted without a warrant and it uses a technology that gives or reveals facts about the interior of the home not otherwise available. n69 F. Sense-Enhancing Devices The Court has held that sense-enhancing devices n70 may not be used against the home without a warrant. n71 Sense-enhancing devices may range in technological sophistication from a shot glass held up against a neighbor's wall n72 to a thermal imager capable of seeing movement through walls. n73 The sense-enhanced device spectrum includes: flashlights, n74 binoculars and telescopes, n75 night scopes, n76 canine sniffs, n77 aerial surveillance, n78 X- [*442] ray machines, n79 thermal infrared devices, n80 and gas chromatography/mass spectrometry devices known as "Sentors." n81 Absent exigent circumstances, the warrantless use of technologically advanced devices against the home constitutes a search where these devices provide access to intimate details not otherwise available. n82 [*443] G. Thermal Imagers Prior to Kyllo, the United States Supreme Court had never addressed the constitutionality of the warrantless use of thermal imagers. n83 It would be wrong, however, to infer that this was due to the issue being well-settled or sorted out in the lower courts. The use of thermal imagers has spawned a tremendous amount of litigation. n84 Some courts have found that the warrantless use of thermal imagers constitutes a search. n85 Courts reaching the opposite conclusion have justified the use of thermal imagers against the home by using one of three analogies: waste heat, canine sniff, and the technological approach. n86 The first, waste heat, analogizes the examination of discarded garbage without a warrant n87 to the examination of heat which is "discarded" from the home. n88 The second, canine sniff, argues that since police may use a canine (which is a sense-enhancing device) in an unobtrusive search without a warrant, n89 the use of a thermal imager (also a sense-enhancing device) is similarly an unobtrusive search and therefore is not a search. n90 The final analogy is the technological approach, which courts have used to find that the use of thermal imagers does not constitute [*444] a search because the technology did not reveal any intimate details. n91 Kyllo is one of many cases in which the lower court decided that sense-enhancing devices, and in particular thermal imagers, could be used against the home without a search warrant. n92 The crucial dividing line for the courts turned on whether the court found that the technology revealed intimate details. n93 By 1999, the circuit courts were fractured as to the legality of the warrantless use of thermal imagers; n94 thus, the Supreme Court had to address the issue for the first time. V. ANALYSIS A. The Case Make no mistake about it, Kyllo v. United States n95 is a timely case. n96 The last time the Court visited the issue of the interplay between sense-enhancing devices and the Fourth Amendment was in 1986. n97 In choosing Kyllo, the Supreme Court was to decide an issue which had fractured the circuits. n98 [*445] The Court chose Kyllo carefully; rather than hearing a case where the facts were well-settled by a full bench trial, the Court granted certiorari for a case that was merely an appeal of a denied motion to suppress evidence obtained without a warrant. Under these circumstances, the holding should not be tied to the facts, save for the basic premise that the protection is for the home. B. The Holding In Kyllo, the Supreme Court held that "obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area,' constitutes a search - at least where (as here) the technology in question is not in the general public use." n99 1. The First Interpretation Following the Court's noteworthy decision, the media published the Kyllo holding as: "the use of thermal imagers against the home without a warrant constitutes a search." n100 Indeed, Kyllo was hailed as "a rare instance of an alliance between liberals and libertarians, united here in support of the sanctity of the home." n101 At least one source called it "the most unlikely collaboration of the year." n102 Because most experts were certain [*446] that the Court would find otherwise, n103 predictions were comprehensive and far-reaching. n104 In fact, it was so widely thought that the government would win that the only amicus brief filed with the Court was on behalf of Kyllo. n105 Given the surprising nature of the holding, one would hope that the case would have been reported correctly when it was announced. The reported holding - that the use of thermal imagers against the home without a warrant constitutes a search - is not the actual holding of Kyllo, but is rather a summation of what the media thought the holding meant. The sentence that follows the holding: "We hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause . . ." n106 is an instruction for what the district court must do on remand, and is not Kyllo's holding. Unfortunately, most media sources, even the sources responsible for keeping the legal profession up to date on the law, reported the holding of Kyllo incorrectly. n107 This misinformation is dangerous simply because it is misleading. n108 [*447] 2. The Correct Interpretation The Court did provide protection for the home against the warrantless use of sense-enhancing devices that provide information not otherwise available without physical intrusion. n109 This holding is tempered though by the ambiguities of: (1) what constitutes "general public use," and (2) what devices are "sense-enhancing." Indeed, most sense-enhancing devices previously addressed by the Court are in the general public use. n110 The few exceptions are X-ray devices, thermal infrared devices, and gas chromatography/mass spectrometry devices. n111 Additionally, prudent readers should note that the curtilage is given short shrift in Kyllo. n112 It should be readily apparent, then, that the expectation of privacy that one has against a search may not apply when sense-enhancing devices are used against the curtilage, regardless of whether they are in the general public use. n113 3. What the Holding Should Have Been The holding in Kyllo should have been: absent a warrant, the use of a thermal imager constitutes a search wherever an expectation of privacy exists. n114 While the Court used Katz v. [*448] United States n115 to find that a search occurred, it failed to apply the "expectation of privacy" standard to wherever one may find it, including the home and even the curtilage. n116 The Court redefined "search," as it relates to the home, by providing protection against sense-enhancing devices only as they are used against the interior of the home, and only with respect to information that could not otherwise have been obtained without physical intrusion. n117 Due to this move away from established precedent, the Court's holding fails to establish a bright-line rule as to whether the warrantless use of a thermal imager constitutes an unreasonable search. n118 It does craft a response that can be interpreted to mean that, at the present, using a thermal imager against the home without a warrant is a search, but the ruling fails to actually hold that the use of a thermal imager without a warrant constitutes an unreasonable search. n119 While using a thermal imager to search a home constitutes a search for now, the real question is how much longer this will hold true. Courts are already using the Kyllo holding to permit the use of sense-enhancing devices that were previously thought to be prohibited because the devices are now in the general public [*449] use. n120 Simply stated, the Court should have, at a minimum, delivered an answer similar in simplicity and substance to Silverman v. United States: n121 that absent a warrant, a thermal imager may never be used against the home. n122 C. The Holding's Effect Now Upon the dissemination of the Kyllo decision, several other pending cases were remanded for rehearing. n123 Undoubtedly, Kyllo affects how the government conducts searches now, n124 but the real consequences will only be realized through the lower courts. n125 The way the lower courts determine the protection required for the curtilage, the home, and searches within the home, will eventually set forth the rule applied to one's locality. n126 1. The Holding's Effect on the Curtilage The curtilage, that critical area surrounding the home, was the last bastion of protection against intrusion, but Kyllo's sole mention of the curtilage is to discount it. n127 Any protections [*450] against sense-enhancing devices previously provided for the curtilage are now removed. n128 Before this ruling, the law in "X" jurisdiction may have required a warrant before a government agent could peer into, or use binoculars to look into, a barn within the curtilage. n129 Kyllo stands for the prospect that officers may use whatever sense-enhancing device they choose against the curtilage. Kyllo expressly discounts the notion that a minimum expectation of privacy exists in "areas such as telephone booths, automobiles, or even the curtilage," and insists that only the interior of the home deserves protection against the use of sense-enhancing devices. n130 2. The Effect of Kyllo on the Home Following Kyllo, the home receives better universal protection against the use of thermal imagers than it did prior to the ruling. n131 The question of how long this will remain true will be answered depending upon how Kyllo is interpreted. a. Sense-Enhancing Devices and the Home Sense-enhancing devices are those instruments that amplify those sensory characteristics already present. This should mean [*451] that any use of a device previously discussed in this note n132 should fall under the umbrella of protection talked about in Kyllo. However, because the Court does not address what constitutes a sense-enhancing device, n133 there are questions as to what limits will be applied. n134 The irony is that because of the inherent vagueness in the Kyllo holding, there is no certainty as to whether the use of any device that enhances the senses, other than a thermal imager, will constitute a search. n135 This is because of the second requirement: a search only occurs when the device was not in the general public use. b. What Devices are in the General Public Use? Never before has an expectation of privacy rested on whether the item utilized by the government to conduct a search of the home was in the general public use. n136 In previous Court [*452] decisions, the protection a place or person received hinged on whether there was a reasonable expectation of privacy. n137 In fact, all of the other cases involving the use of sense-enhancing devices have been based on whether the item used provided intimate details or impermissibly infringed upon a person's reasonable expectations. n138 What, then, does this new direction mean for what the Court has previously held? n139 It could mean that any previous holding that provided protection against the use of a sense-enhancing device that is in the public use is now null and void. Devices like binoculars/telescopes, night scopes, n140 and beepers are all devices that should inarguably be found to be in the general public use. n141 Kyllo's holding, then, should also similarly [*453] effect any other sense-enhancing device that is generally in the public use, and should mean that government agents can use them against the home without first obtaining a warrant. n142 D. The Future of Search If this holding is strictly construed, most protections previously available to areas where there was an expectation of privacy no longer exist. n143 However, there is potentially an even greater danger that exists depending on how future courts determine what devices constitute sense-enhancing devices. n144 Courts in large communities like Little Rock, Arkansas could find that thermal imagers are in the general public use, n145 while courts in much smaller communities might not even have a thermal imager within their jurisdiction, and would not find them to be in the general public use. n146 Even giving a device the distinction of being a sense-enhancing device will not alone be enough to ensure that the device cannot be used on the home. This is because courts, given a liberal enough interpretation, could eventually find that the general availability of a device constitutes general public use. n147 Surely, the Court did not intend [*454] Kyllo to provide unequal protection against governmental intrusion based upon the geographical location of the defendant's home. n148 VI. CONCLUSION The Kyllo v. United States n149 decision is noteworthy for many reasons. It was a case of first impression and served to homogenize the split circuit court decisions. However, Kyllo is not the firm or bright-line rule that the Court would have us believe it is. Presently, thermal imagers cannot be used against the home. Unfortunately, Kyllo's progeny will further weaken any chance of the home being safe against governmental intrusion. This is because the Court will inevitably create exceptions to what Kyllo requires. Regardless of how future courts address this issue, technology remains an inherent threat to the sanctity of the home. It is inevitable that "the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available." n150 Although Kyllo has provided temporary protection against governmental intrusion, using open terms for its bright-line protections ensures that the ruling will last about as long as it takes for disappearing ink to dry. Kyllo provides protection today, but will it tomorrow? FOOTNOTES: n1. 533 U.S. 27 (2001) [hereinafter Kyllo VII]. While seven Kyllo opinions are referenced in this note, the Supreme Court opinion with the citation 533 U.S. 27 (2001) will be referred to merely as "Kyllo" throughout the text. n2. Id. at 34. n3. See id. at 36. "The rule we adopt must take account of more sophisticated systems that are already in use or in development." Id. Indeed, the nine-year gap between when Kyllo's home was scanned and when the case finally arrived at the Supreme Court must have brought with it antiquated thermal imagers compared to what is currently available. See infra note 73. N4. See Kyllo VII, 533 U.S. at 34. In Dow Chemical Co. v. United States, 476 U.S. 227 (1986), the Court agreed "that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant." Id. at 238. However, it did not rule on whether the use of technology not generally available to the public to search a home or its curtilage would require a warrant. See id. n5. "It seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available." Kyllo VII, 533 U.S. at 47 (Stevens, J., dissenting). n6. Opening Brief for Appellant at 2-4, Kyllo v. United States, 533 U.S. 27 (2001) (No. 99-8508), available at 2000 WL 33127872. n7. United States v. Kyllo, 140 F.3d 1249, 1250 (9th Cir. 1998) [hereinafter Kyllo IV]. n8. United States v. Kyllo, 190 F.3d 1041, 1043 (9th Cir. 1999) [hereinafter Kyllo V]. n9. Kyllo IV, 140 F.3d at 1251. n10. Id. n11. Id. n12. Id. n13. Id. Thermal imagers rely on heat, not light, to create a picture of the outside world. See Kyllo v. United States, 533 U.S. 27, 29-30 (2001) [hereinafter Kyllo VII]. 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 is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. Id. Thermal imagers are "off the shelf" military technology that have been in general use for nearly twenty-five years. Kyllo V, 190 F.3d at 1044. The device is used for search and rescue and is also utilized by many businesses for a variety of purposes including the detection of roof leaks, steam pipe leaks, cracks in high voltage transmission lines, and overloaded transformers. Id. Several companies market thermal imagers, which are readily available for purchase or rental. Id. They range in price from $ 15,000 to $ 35,000. See Petula Dvorak, Fire Chiefs Discuss Equipment Allegation, Wash. Post, Oct. 5, 2001, available at 2001 WL 28362310 (reporting that thermal imagers used by fire departments cost about $ 15,000 each). n14. Kyllo V, 190 F.3d at 1044. n15. Kyllo VII, 533 U.S. at 30. n16. Clearly, the Fourth Amendment is implicated by the search of homes of individuals who are not suspected of criminal activity. See, e.g., Melvin Gutterman, A Formulation of the Value and Means Models of the Fourth Amendment in the Age of Technologically Enhanced Surveillance, 39 Syracuse L. Rev. 647, 707 (1988); Lewis R. Katz, In Search of a Fourth Amendment for the Twenty-First Century, 65 Ind. L.J. 549, 559-60 (1990); James J. Tomkovicz, Beyond Secrecy for Secrecy's Sake: Toward an Expanded Vision of the Fourth Amendment Privacy Province, 36 Hastings L.J. 645, 649 (1985). n17. Kyllo V, 190 F.3d at 1044. n18. Id. Halide lamps are typically used in sports lighting, but also function as a substitute for natural sunlight when used indoors. See Sharon Colley, Neighborly Night Lights: Ball Fields That Don't Spill the Beams, Am. City & County, Apr. 30, 2000; Kim Weststead, Ill-mannered Dog "Rats Out' Victoria Marijuana Grow-Op its Owners Ran, Can. Press, Sept. 20, 2001, available at 2001 WL 27755013. The use of halide lamps allows the growth of marijuana indoors. See Colley, supra note 18; Weststead, supra note 18. n19. Kyllo V, 190 F.3d at 1044. The affidavit, which was later found to be false and misleading as it related to Kyllo's energy consumption, stated that the amount of electricity used at Kyllo's home was typical of indoor marijuana growth and that Kyllo's wife, Luanne, had previously been convicted of possession and distribution of an illegal substance. See United States v. Kyllo, 37 F.3d 526, 528 (9th Cir. 1994) [hereinafter Kyllo II]. The magistrate issued the warrant to search Kyllo's home based upon this affidavit. Kyllo V, 190 F.3d at 1044. n20. Kyllo V, 190 F.3d at 1044. n21. United States v. Kyllo, 809 F. Supp. 787, 789 (D. Or. 1992) [hereinafter Kyllo I]. n22. Id. n23. 533 U.S. 27, 30 (2001) [hereinafter Kyllo VII]. n24. Id. n25. Id. n26. United States v. Kyllo, 37 F.3d 526, 528 (9th Cir. 1994) [hereinafter Kyllo II]. n27. On remand, the district court found the Agema 210 to be 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." United States v. Kyllo, No. 92-51-FR, 1996 WL 125594, at 2 (D. Or. Mar. 15, 1996) [hereinafter Kyllo III]. n28. Id. n29. United States v. Kyllo, 140 F.3d 1249, 1255 (9th Cir. 1998) [hereinafter Kyllo IV]. n30. Id. at 1252. n31. Id. at 1254. n32. United States v. Kyllo, 190 F.3d 1041, 1043 (9th Cir. 1999) [hereinafter Kyllo V]. n33. Id. n34. Id. at 1046. n35. Kyllo v. United States, 530 U.S. 1305 (2000) [hereinafter Kyllo VI]. n36. 533 U.S. 27 (2001) [hereinafter Kyllo VII]. n37. John Bartlett, Familiar Quotations: a Collection of Passages, Phrases, and Proverbs traced to their Sources in Ancient and Modern Literature 152 (Justin Kaplan ed., 16th ed. 1992) (quoting Sir Edward Coke); see Matthew L. Zabel, Comment, A High-Tech Assault on the "Castle": Warrantless Thermal Surveillance of Private Residences and the Fourth Amendment, 90 Nw. U. L. Rev. 267, 268 (1995). n38. At least as early as 533 A.D., the home was considered a safe refuge from invasion. See Bartlett, supra note 37, at 152 n.2; see also Genesis 19:4-11 (explaining that when two strangers visited Lot in the city of Sodom, a mob approached Lot's home and called out to Lot to bring out the strangers that had sought refuge in his home). n39. See Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution, in 55 The Johns Hopkins University Studies in Historical and Political Science No. 2, at 14 n.6 (1937). n40. See id. at 99-105. n41. See id. at 51-78. n42. See Wyman v. James, 400 U.S. 309, 316 (1971) (noting that the Court has consistently been protective of the privacy of the dwelling); Mapp v. Ohio, 367 U.S. 643, 647 (1961) (holding that the Fourth Amendment purposely put the Government under limitations and restraints to ensure the security of the people against all unreasonable searches); Boyd v. United States, 116 U.S. 616, 626-30 (1886) (finding that under the laws of England, all invasions of personal property, no matter how miniscule, were a trespass). For other cases discussing the importance of privacy in the home, see Soldal v. Cook County, 506 U.S. 56, 62-65 (1992) and Payton v. New York, 445 U.S. 573, 585-86 (1980). n43. See, e.g., United States v. Karo, 468 U.S. 705, 717 (1984) (holding that warrantless searches are presumptively unreasonable); Steagald v. United States, 451 U.S. 204, 220 (1981) (holding that the Fourth Amendment was intended to protect against the abuses that had occurred in England); Payton, 445 U.S. at 586 (holding that searches and seizures of the home without warrant are per se unreasonable). n44. U.S. Const. amend. IV. n45. See, e.g., Segura v. United States, 468 U.S. 796, 810 (1984); Payton, 445 U.S. at 615; Burdeau v. McDowell, 256 U.S. 465, 475 (1921). n46. See, e.g., Soldal, 506 U.S. at 64 (holding that the ""principal' object of the [Fourth] Amendment is the protection of privacy") (citing Warden, 387 U.S. at 304); Winston v. Lee, 470 U.S. 753, 758 (1985) (conveying a natural right to be left alone as inherent in humanity); United States v. Martinez-Fuerte, 428 U.S. 543, 561-65 (1976) (stating that private dwellings are afforded the most stringent protections of the Fourth Amendment as compared to automobiles); Silverman v. United States, 365 U.S. 505, 511 (1961) (discussing the right to retreat from government intrusion). n47. When the Fourth Amendment was adopted, "to search" meant "to look over or through for the purpose of finding something; to explore; to examine by inspection; as to search the house for a book; to search the wood for a thief." Kyllo VII, 533 U.S. at 33 n.1 (quoting N. Webster, An American Dictionary of the English Language 66 (1828) (6th ed. 1989) (emphasis added)). n48. 389 U.S. 347 (1967) [hereinafter Katz I]. n49. Id. at 361 (Harlan, J., concurring). n50. Oliver v. United States, 466 U.S. 170, 182-83 (1983). n51. Payton, 445 U.S. at 590. n52. As a general rule, law enforcement may only intrude on private property by obtaining a search warrant issued by a neutral magistrate based on probable cause. See Maryland v. Buie, 494 U.S. 325, 329 (1990); Karo, 468 U.S. at 717; Welsh v. Wisconsin, 466 U.S. 740, 748-49 (1984); Steagald, 451 U.S. at 211-12; Payton, 445 U.S. at 586; Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971). n53. A consensual search is one of the specifically established exceptions to the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (holding that individual consent could only be ascertained by analyzing all of the circumstances, and need not necessarily comply with the standard definition of voluntariness, meaning that the accused had a right to know of his right to refuse consent to a search). Voluntary consent may be given by the individual whose property is searched, or by a third party who possesses common authority over the premises being searched. See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). Illegal coercion is not established from the failure to inform the arrestee that he could withhold consent. See United States v. Watson, 423 U.S. 411, 425 (1976). If consent is given, the police may search property without a warrant. See United States v. Matlock, 415 U.S. 164, 171 (1974). The voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid against the co-occupant, permitting evidence discovered in the search to be used against him at a criminal trial. See id. at 171 n.7. n54. The purpose of the neutral and detached magistrate requirement is to avoid having the inferences required to find probable cause "judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14 (1948). "The history of the use, and not infrequent abuse, of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause would leave law-abiding citizens at the mercy of the officers' whim or caprice." Wong Sun v. United States, 371 U.S. 471, 479 (1963) (internal citations omitted). n55. Payton, 445 U.S. at 586-87. Exigent circumstances exist (and thus the warrant requirement is extinguished) when there "is reason to believe that [delaying for a warrant] will allow an escape or increase unreasonably the physical risk to the police or to innocent persons" or will increase the likelihood that evidence will be destroyed. Id. at 577 n.7 (quoting People v. Floyd, 260 N.E.2d 815, 816 (N.Y. 1970)); see also Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298 (1967) (holding that neither the entry of the inmate's home, nor the search for him, without a warrant was invalid due to the exigencies of the situation). n56. Katz I required "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable.'" 389 U.S. at 361 (Harlan, J., concurring). n57. See Minnesota v. Olson, 495 U.S. 91, 96-97 (1990) (holding that overnight guests have a legitimate expectation of privacy). But see Minnesota v. Carter, 525 U.S. 83, 88 (1998) (finding that guests have no right to standing unless they had a reasonable expectation of privacy); Rakas v. Illinois, 439 U.S. 128, 141-48 (1978) (holding that the capacity to claim an expectation depends upon whether the person has a legitimate expectation of privacy). n58. "Curtilage" is defined as "the land or yard adjoining a house, usually within an enclosure." Black's Law Dictionary 389 (7th ed. 1999). "Under the Fourth Amendment, the curtilage is an area usually protected from warrantless searches." Id. n59. Blackstone wrote that "no distant barn, warehouse, or the like are under the same privileges, nor looked upon as a man's castle of defence." William Blackstone, 4 Commentaries on the Laws of England (1765-1769) 225 (Univ. of Chicago Press 1979). Blackstone observed, however, that "if the barn, stable, or warehouse, be parcel of the mansion-house, and within the same common fence, though not under the same roof or contiguous, a burglary may be committed therein; for the capital house protects and privileges all its branches and appurtenances, if within the curtilage or homestall." Id. n60. Both a home and the home's curtilage - i.e., "the area outside the home itself but so close to and intimately connected with the home and the activities that normally go on there that it can reasonably be considered part of the home" - are within the scope of the Fourth Amendment's protection. United States v. Shanks, 97 F.3d 977, 979 (7th Cir. 1996) (quoting United States v. Pace, 898 F.2d 1218, 1228 (7th Cir. 1990)). n61. 476 U.S. 227 (1986). n62. Id. at 227; see also Shanks, 97 F.3d at 979. n63. In its discussion of the curtilage, the Court groups several areas together that are entitled to less protection than the interior of the home. While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes . . . there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. Kyllo VII, 533 U.S at 34. The preceding statement expressly discounts the curtilage, by comparing one's expectation of privacy within the curtilage to their expectation of privacy within an automobile - one of the least protected areas. Prior to the Kyllo holding, the protection that the curtilage received was based on the expectation of privacy that existed there. In Florida v. Riley, 488 U.S. 445 (1989), a search of the curtilage was found when flight over the curtilage was "sufficiently rare" to lend credibility to assertions that there is a reasonable expectation of privacy against observation, that there is interference with the use or enjoyment of the curtilage, or that intimate details were observed. Id. at 451-52. n64. See, e.g., United States v. Kyllo, 190 F.3d 1041, 1046 (9th Cir. 1999) [hereinafter Kyllo V] (holding that the defendant did not have a subjective expectation of privacy in the waste heat emitted from his house because he made no attempt to conceal the heat emissions from the lamps needed to grow the marijuana); United States v. Myers, 46 F.3d 668, 669 (7th Cir. 1995) (holding that the defendant displayed no subjective expectation of privacy in the heat emitted from his home because he took no steps to contain the heat emissions; in fact, he released the heat through vents on the roof); United States v. Ford, 34 F.3d 992, 995 (11th Cir. 1994) (holding that the defendant's actions proved that he did not exhibit a subjective expectation of privacy in the heat emitted from his mobile home). But see United States v. Cusumano, 67 F.3d 1497, 1506 (10th Cir. 1995) (holding that the use of a thermal imager constituted an unconstitutional warrantless search). Each determination of whether a certain property comes with the curtilage of a home, so as to come within the protection of the Fourth Amendment, is distinctive and stands or falls on its own unique set of facts. See Daughenbaugh v. City of Tiffin, 150 F.3d 594 (6th Cir. 1998). But a property owner may have a reasonable expectation of privacy even in areas and outbuildings that are some distance from the principal dwelling. See United States v. Reilly, 76 F.3d 1271, 1273-74 (2d Cir. 1996) (holding that a cottage 375 feet from a defendant's main residence was within the curtilage). However, some outbuildings may not be within the curtilage and may instead be grouped in the open field category. See United States v. Van Damme, 48 F.3d 461, 464-65 (9th Cir. 1995) (holding a greenhouse to be in an open field); see also United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1993) (holding a barn to be in an open field). n65. Karo, 468 U.S. at 717 (rejecting the use of a beeper to track the movement of objects within the home). But see United States v. Knotts, 460 U.S. 276, 284-85 (1983) (holding that the use of a beeper to monitor the movement of objects outside of the home is not violative of the Fourth Amendment). n66. 468 U.S. 705. n67. Id. at 705. n68. See id. at 715. n69. Id. at 715-16. n70. Sense-enhancing devices include items such as: electronic tracking devices ("beepers"), aerial searches, thermal infrared imaging, and drug-sniffing canines. See Peter Joseph Bober, The "Chemical Signature" of the Fourth Amendment: Gas Chromatography/Mass Spectrometry and the War on Drugs, 8 Seton Hall Const. L.J. 75, 90-100 (1997). n71. See Dow Chem., 476 U.S. at 237 n.4. n72. There is no reasonable expectation of privacy regarding motel room conversations that are overheard with unaided ears in the motel room next door. See United States v. Jackson, 588 F.2d 1046, 1051-53 (5th Cir. 1979) (holding that there was no difference between using non-electronic devices to eavesdrop and simply maintaining surveillance of the activities). Use of hearing enhancement devices may "raise very different and far more serious questions" than visual enhancement devices when determining the reasonable expectation of privacy of defendants and, consequently, whether a warrant is required. Dow Chem., 476 U.S. at 238-39. n73. Contrary to government testimony, thermal imagers are capable of "through-the-wall infrared imaging which, when aimed at a wall, can plot details of all the objects behind it. In hostage situations, the police could detect the location of hostages, their captors, weapons and placement of walls, doors, etc. " Mohammed Ahmedullah, No Hiding Place with New Security System, White House Weekly, Sept. 18, 2001, Defense Week Special Edition (internal citations omitted), available at http://www.kingpublishing.com/publications/whw/. n74. See Marshall v. United States, 422 F.2d 185, 189 (5th Cir. 1970) (holding that the use of a flashlight may constitute a search). But see United States v. Booker, 461 F.2d 990, 992 (6th Cir. 1972) (holding that no search occurs when a flashlight is used from the lawful vantage point of the front porch). n75. The binocular/telescope rule is based on the theory that the sense-enhancing capability of the devices merely provides information that could have been otherwise obtained. See State v. Young, 867 P.2d 593, 598 n.1 (Wash. 1994). But see United States v. Taborda, 635 F.2d 131, 139 (2d Cir. 1980) (holding that the police use of a telescope to identify objects or activities, without which they would not have been able to identify, is a search). Consequently, the rule does not permit enhanced observations that enable an officer to observe objects or activities that could not be observed by the naked eye. In these circumstances, the defendant may have a legitimate expectation of privacy in the objects or activities. See, e.g., United States v. Kim, 415 F. Supp. 1252, 1256 (D. Haw. 1976) (holding that a search occurred when FBI agents used an 800 millimeter telescope to observe activities in the defendant's apartment one-quarter mile away); State v. Kender, 588 P.2d 447, 450-51 (Haw. 1978) (holding that a search occurred when the officer climbed up the fence on the neighboring defendant's backyard to observe activities that otherwise would have been concealed by a fence and heavy foliage). n76. Night scopes are essentially a combination of artificial lighting and magnification. See generally United States v. Ward, 546 F. Supp. 300, 310 (W.D. Ark. 1982) (holding that there was no Fourth Amendment violation in the mere employment of a telescopic night scope before obtaining warrant); United States v. Hensel, 509 F. Supp. 1376, 1384 n.9 (D. Me. 1981); Newberry v. State, 421 So. 2d 546, 547 (Fla. Dist. Ct. App. 1982); State v. Denton, 387 So. 2d 578, 583-84 (La. 1980). n77. A canine sniff is usually understood to be the use of a canine's superior sense of tracking odors and scents in a search. See United States v. Place, 462 U.S. 696, 707 (1983) (holding that canine sniffs may be used against luggage in a public place). But see United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir. 1985) (holding that a search by a canine at the door of an apartment constituted a search). n78. Aerial surveillance is not considered an enhancement that gives rise to a search violating the Fourth Amendment so long as the search occurs from public, navigable airspace and is not conducted in a physically intrusive fashion. See California v. Ciraolo, 476 U.S. 207, 213-15 (1986) (holding that a warrantless aerial observation of the curtilage of a home was not unreasonable under the Fourth Amendment); State v. Myrick, 688 P.2d 151, 155 (Wash. 1984) (holding that aerial surveillance of open fields at 1500 feet, without the use of visual enhancement, was not unreasonably intrusive). But see Riley, 488 U.S. at 451 (suggesting that aerial surveillance might violate the Fourth Amendment if it revealed "intimate details" or caused "excessive noise or other disturbances"); Dow Chem., 476 U.S. at 238-39 (upholding high altitude aerial photographic surveillance by EPA on open fields, but once again suggesting that homes may not be subject to this type of search). n79. See, e.g., Brent v. Ashley, 247 F.3d 1294, 1302-03 (11th Cir. 2001) (holding that strip search and pelvic X-ray examination was a violation of citizen's Fourth Amendment rights); United States v. Allen, 337 F. Supp. 1041, 1043 (E.D. Pa. 1972) (holding that using an X-ray machine against a suspect requires a warrant). n80. See supra note 13. n81. These devices, commercially known as Sentors, are used by federal law enforcement agencies in drug enforcement operations. See Bober, supra note 70, at 76 n.13. The Sentor is a super vacuum that uses a molecular filter to determine the amount of cocaine, heroin, or methamphetamine present in a given area. Id. at 76-77. It is strong enough to detect a particle of cocaine as small as one part per one hundred trillion. Id. at 77. Ratio-wise this is like "finding a specific grain of sand on a mile-long beach." Id. at 77 n.18. n82. See Riley, 488 U.S. at 451; Dow Chem., 476 U.S. at 239; Karo, 468 U.S. at 712; Brent, 247 F.3d at 1302-03; Thomas, 757 F.2d at 1367; Taborda, 635 F.2d at 135; Marshall, 422 F.2d at 189; Kim, 415 F. Supp. at 1256; Allen, 337 F. Supp. at 1043; Kender, 588 P.2d at 450-51. n83. Kyllo VII, 533 U.S. at 29. n84. See, e.g., United States v. Myers, 46 F.3d 668 (7th Cir. 1995); United States v. Robertson, 39 F.3d 891 (8th Cir. 1994); United States v. Ford, 34 F.3d 992 (11th Cir. 1994); United States v. Pinson, 24 F.3d 1056 (8th Cir. 1994); United States v. Olson, 21 F.3d 847 (8th Cir. 1994); United States v. Deaner, 1 F.3d 192 (3d Cir. 1993); United States v. Feeney, 984 F.2d 1053 (9th Cir. 1993); United States v. Field, 855 F. Supp. 1518 (W.D. Wis. 1994); United States v. Domitrovich, 852 F. Supp. 1460 (E.D. Wash. 1994); United States v. Porco, 842 F. Supp. 1393 (D. Wyo. 1994); United States v. Penny-Feeney, 773 F. Supp. 220 (D. Haw. 1991); Young, 867 P.2d at 593. n85. See United States v. Cusumano, 67 F.3d 1497, 1510 (10th Cir. 1995); United States v. Elkins, 95 F. Supp. 2d 796, 811 (W.D. Tenn. 2000); Field, 855 F. Supp. at 1533; United States v. Ishmael, 843 F. Supp. 205, 213 (E.D. Tex. 1994); Commonwealth v. Gindlesperger, 743 A.2d 898, 905 (Pa. 1999); State v. Siegal, 934 P.2d 176, 180 (Mont. 1997); Young, 867 P.2d at 594. n86. See, e.g., Robinson, 62 F.3d at 1330; Ishmael, 48 F.3d at 850; Myers, 46 F.3d at 668; Pinson, 24 F.3d at 1056. n87. See California v. Greenwood, 486 U.S. 35, 37 (1988). n88. See, e.g., Myers, 46 F.3d at 670; Ford, 34 F.3d at 997; Pinson, 24 F.3d at 1058; Domitrovich, 852 F. Supp. at 1474; Porco, 842 F. Supp. at 1397; Penny-Feeney, 773 F. Supp. at 226; State v. McKee, 510 N.W.2d 807, 810 (Wis. Ct. App. 1993). n89. Place, 462 U.S. at 707. n90. See, e.g., Robinson, 62 F.3d at 1330; Pinson, 24 F.3d at 1058; Penny-Feeney, 773 F. Supp. at 226-27; McKee, 510 N.W.2d at 810. n91. These were generally known as the technology cases. See Kyllo V, 190 F.3d at 1043; Ford, 34 F.3d at 996; Pinson, 24 F.3d at 1059. n92. See, e.g., Robinson, 62 F.3d at 1330; Ishmael, 48 F.3d at 850; Myers, 46 F.3d at 668; Pinson, 24 F.3d at 1056. n93. Ishmael, 48 F.3d at 855 (quoting Dow Chem., 476 U.S. at 238). n94. See supra notes 85-86, 88, 90-91. n95. 533 U.S. 27 (2001) [hereinafter Kyllo VII]. n96. See John P. Elwood, What Were They Thinking, 4 Green Bag 2d 365, 370-71 (2001). n97. See Dow Chem. Co. v. United States, 476 U.S. 227, 227 (1986). This is not to say that the Court has historically refused to intervene when devices were used against the home. As early as 1942, the Court had this to say about searches and the Fourth Amendment: The search of one's home or office no longer requires physical entry for science has brought forth far more effective devices for the invasion of a person's privacy than the direct and obvious methods of oppression which were detested by our forbears and which inspired the Fourth Amendment . . . . Whether the search of private quarters is accomplished by placing on the outer walls of the sanctum a detectaphone that transmits to the outside listener the intimate details of a private conversation, or by new methods of photography that penetrate walls or overcome distances, the privacy of the citizen is equally invaded by the Government and intimate personal matters are laid bare to view. California v. Ciraolo, 476 U.S. 207, 218 n.3 (1986) (citing Goldman v. United States, 316 U.S. 129, 139 (1942) (Murphy, J., dissenting)). n98. See generally supra notes 88, 90-91 (citing cases regarding waste heat, canine sniff, and technology). n99. Kyllo VII, 533 U.S. at 34. The Court explained that this holding would provide the same protection that the home had against government intrusion as when the Fourth Amendment was "adopted." Id. n100. This is the Kyllo holding as reported by nearly every major news agency. See, e.g., Court Reins in High-Tech Surveillance Justices Rule that Police Must Have a Warrant Before Using Detection Devices, Star Trib., June 12, 2001, at 01A, available at 2001 WL 9629297; Linda Greenhouse, Court Curbs High-Tech Invasions of Home Privacy Justices Also Back After-Hours, San Diego Union & Trib., June 12, 2001, at A1, available at 2001 WL 6466142; David G. Savage, Court Says No to Home Snooping Law: U.S. Justices Restrict the Use of Heat Sensors and Other High-Tech Spy Devices by Police, L.A. Times, June 12, 2001, at A1, available at 2001 WL 2494823. n101. David Cole, Scalia's Kind of Privacy, The Nation, July 23, 2001, at 6, available at 2001 WL 2132778, at 2. n102. Id. Justice Scalia, the civil-libertarian Justice, joined with ultra-conservative Justice Thomas, and was then joined by three liberal Justices Souter, Ginsberg, and Breyer. Id. The dissent is actually written by the most liberal justice, Justice Stevens. Id. Historically, Chief Justice Renquist and Justices Scalia, Thomas, O'Connor, and Kennedy have voted together in the area of criminal law and procedure. See Oneill, infra note 107. n103. See supra notes 86, 88, 90-91; see also Alan M. Dershowitz, A Court Term Defined at Its Beginning, Seattle Post-Intelligencer, July 8, 2001, at D9, available at 2001 WL 3562567. n104. See Christopher Bannerman, Note, Forward Looking Infrared Radar and the Fourth Amendment, 16 QLR 419, 428-43 (1997). n105. Brief of Amici Curiae of the Liberty Project at 1, Kyllo v. United States, 533 U.S. 27 (2001) (No. 99-8508) available at 2001 WL 1706770. n106. Kyllo VII, 533 U.S. at 40. n107. Marcia Coyle, As High Court Cases Go, These Were the Sexy Ones, 23 Nat 'l L.J. No. 50, Aug. 6, 2001, at C5; Marcia Coyle, Taking Charge: An Activist Court Rules on Speech, Immigration, and One Big Election, 23 Nat'l L.J. No. 50, Aug. 6, 2001, at C1; 2000-2001 Term: Supreme Court Review, 23 Nat'l L.J. No. 50, Aug. 6, 2001, at C1; Timothy P. Oneill, "Crime Control Five': They Vote Together, Win Together, 147 Chi. Daily L. Bull. No. 201, Oct. 12, 2001, at 5; NBC Nightly News: New See-Through Technology Helps Law Enforcement, but Privacy Concerns Arise, (NBC television broadcast, June 21, 2001) available at 2001 WL 24023270. n108. This case is misleading in the same sense that most defendants have been misled to believe that their Miranda rights provide unlimited protection. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). The Miranda rights require that "prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. Of course, there are many exceptions to this rule. See generally New York v. Quarles, 467 U.S. 649, 655-56 (1984) (holding that circumstances fall within public safety exception to general requirement, pursuant to or as aid in enforcement of the Federal Constitution's Fifth Amendment privilege against self-incrimination, to give Miranda warnings before conducting custodial interrogation); Harris v. New York, 401 U.S. 222, 226 (1971) (holding that otherwise inadmissible statement, taken in violation of the Miranda Rule, may be used to impeach inconsistent testimony); United States v. Delago, 397 F. Supp. 708, 712 (D.C.N.Y. 1974) (holding that Miranda was not required when, as a condition of his probation, the defendant was required to promptly and truthfully answer all inquiries directed to him by the probation officer). n109. The Federal Bureau of Investigations had this to say about the Kyllo decision: "As a practical matter, the Kyllo case will severely restrict the use of thermal imagers to scan private homes or other premises where there is an expectation of privacy. Such scans now require a search warrant, absent exceptions such as consent or emergency." Supreme Court cases: 2000-2001 term, 1/1/02 FBI L. Enforcement Bull. 22, available at 2002 WL 15329837, at 8. n110. See Bober, supra note 70, at 90-100; see also supra notes 75-78. n111. See supra notes 79-81. n112. The Court again states in Kyllo that the Fourth Amendment draws "a firm line at the entrance to the house," and thereby discounts any area "which does not share the Fourth Amendment sanctity of the home." 533 U.S. at 40. But see supra notes 58-60. n113. Newspapers were quick to point out that thermal imaging could be used against structures not protected by the Fourth Amendment. See Larry Wilson & Warren Spencer, The Impact of Kyllo: Don't Discard those Thermal Imaging Devices, 68 Police Chief, Sept. 1, 2001, at 1012, available at 2001 WL 15375038. n114. This line of thought comports with the Court's previous decisions in United States v. Karo, 468 U.S. 705 (1984) and United States v. Jacobsen, 466 U.S. 109 (1984), in which the Court found that a search occurs when the government infringes on an area in which an expectation of privacy exists. Karo, 468 U.S. at 712; Jacobsen, 466 U.S. at 113. This could also provide the protections that the Fourth Amendment envisioned because curtilage and other areas where a person has an expectation of privacy receive protection. See generally supra note 60. n115. 389 U.S. 347 (1967) [hereinafter Katz I]. Katz I held that courts must determine whether a search is unconstitutional by ascertaining whether the person "exhibited an actual (subjective) expectation of privacy," and whether that expectation is one which society is willing to recognize as reasonable. Id. at 361 (Harlan, J., concurring). n116. However, this application of Katz I has previously been used by the Court in Riley, Karo, and Dow Chemical. See supra notes 60-65, 78, 97. n117. Kyllo VII, 533 U.S. at 34 (citing Silverman v. United States, 365 U.S. 505, 512 (1961)). n118. The question presented was: Does the use of a thermal imager against the home without a warrant constitute a search? The answer: "Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area,' . . . constitutes a search - at least where (as here) the technology in question is not in the general public use." Id. n119. While the holding seems strong now, it is far from the absolute prohibition that was provided against electronic monitoring in Karo. See 468 U.S. at 717. n120. See People v. Katz, 2001 WL 1012114, at 2 n.4 (Mich. App. Sep 4, 2001) [hereinafter Katz II] (holding that the police officer's use of night-vision binoculars to obtain visual images does not constitute a search, as the binoculars might well be in the general public use); State v. Mordowanec, 788 A.2d 48, 54-55 (Conn. 2002) (holding that commercial property does not receive protection from search by thermal imagers). n121. 365 U.S. 505. n122. Id. at 505 (holding that eavesdropping accomplished by means of an electronic device that penetrated the premises occupied by petitioner was a violation of the Fourth Amendment). n123. See, e.g., Acker v. United States, 533 U.S. 913, 913 (2001); United States v. Depew, 17 Fed. Appx. 563, 564 (9th Cir. 2001); United States v. Real Property Located at 15324 Co. Highway E., No. 99-3190, 2001 WL 1021587, at 1 (7th Cir. Sep. 4, 2001). n124. See supra note 105. n125. See Depew, 17 Fed. Appx. at 564-65 (holding that under Kyllo, a thermal scan is a search). n126. Given the full life cycle of Kyllo, Americans will no longer have an expectation of privacy against any sense-enhancing device previously discussed. The Kyllo dissent best argues that the rule's general public use "criteria is somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available." 533 U.S. at 47 (Stevens, J., dissenting). n127. The curtilage is compared to telephone booths and automobiles in order to find strength for the interior of the home. While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes . . . there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. Kyllo VII, 533 U.S. at 34. n128. While it is true that curtilage was not squarely addressed by Kyllo, it is also true that the protections provided by Kyllo against the use of sense-enhancing devices only apply to the interior of the home - expressly excluding any protection to those areas outside of that zone. Id. n129. See Siebert v. Severino, 256 F.3d 648, 654 (7th Cir. 2001) (holding that there is an expectation of privacy in a barn); United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1993) (holding that there was a legitimate expectation of privacy inside a barn); State v. Cada, 923 P.2d 469, 477 (Idaho Ct. App. 1996) (holding that open view is limited when applied to the curtilage). n130. This is because the holding only provides protection against sense-enhancing devices for the "interior of the home." Kyllo VII, 533 U.S. at 34. But see State v. Schumacher, 37 P.3d 6, 11 (Idaho Ct. App. 2001) (holding that the thermal imaging of a barn was an unlawful search). n131. One must take into account the fact that, prior to the Kyllo ruling, using a thermal imager against the home was not considered a search in most jurisdictions. Only then does it actually seem as though the Court provided some real protection for the home against the use of sense-enhancing devices and, indeed, the thermal imager. See supra note 86. n132. This list should include binoculars, night scopes, aerial surveillance, thermal imagers, and Sentors. See supra notes 13, 75-76, 78, 81. n133. The description given is that "sense-enhancing technology [are used to gather] information regarding interior of home that could not otherwise have been obtained without physical "intrusion into constitutionally protected area.' " Kyllo VII, 533 U.S. at 34. A recent slip opinion follows the Kyllo opinion analysis that the sense-enhancing "dog sniff" is a search despite the fact that canines are in the general public use. United States v. Richard, 2001 WL 1033421, at 6 n.4 (W.D. La. Aug. 29, 2001). n134. Conversely, perhaps the Court had technological advancements in mind when constructing this opinion. Footnote four of the opinion expressly deals with the possibilities of what the National Law Enforcement and Corrections Technology Center intends to develop: "The ability to "see' through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development." Kyllo VII, 533 U.S. at 37 n.4. The Court mentions, by name, some of the devices that the "rule we adopt must take account of," including "Radar-Based Through-the-Wall Surveillance System, Handheld Ultrasound Through the Wall Surveillance, and a Radar Flashlight that will enable law officers to detect individuals through interior building walls." Id. at 37 n.4 (internal citations and quotations omitted). n135. It should be noted that the Court could, in the future, rule that devices like the Sentor or the X-ray are beyond what could be categorized as sense-enhancing, thereby making the Kyllo ruling inapplicable to them. n136. Perhaps some guidance as to what constitutes general public use is available. Prior Court opinions seem to hinge what constitutes general public use on both availability, see Dow Chem., 476 U.S. at 243 n.4 (Powell, J., dissenting) (finding that a camera used to photograph an industrial complex was a common usage despite the fact that it "cost in excess of $ 22,000.00 and is described by the company as the "finest precision aerial camera available'"), and on use, see Riley, 488 U.S. at 451 (holding that when flights over the curtilage are sufficiently rare, then they may not be reasonably anticipated); Ciraolo, 476 U.S. at 215 (holding no expectation of privacy exists in the curtilage when the defendant knowingly exposed his backyard "in an age where private and commercial flight in the public airways [are] routine"). Following Kyllo, lower courts have followed the availability guidelines. See Katz II, 2001 WL 1012114, at 2 n.4 (holding that the police officer's use of "night vision binoculars" to obtain visual images "may very well be in "general public use' such that their use" does not constitute an illegal search). Using the search terms "search /s general public use" on WestLaw, the phrase "general public use" results in only one opinion - Kyllo VII, 533 U.S. at 27. n137. The right to a reasonable expectation of privacy in the home is long standing. See Minnesota v. Carter, 525 U.S. 83, 101 (1998) (Kennedy, J., concurring); Illinois v. Rodriguez, 497 U.S. 177, 190 (1990) (Marshall, J., dissenting); Minnesota v. Olson, 495 U.S. 91, 96 n.5 (1990); Florida v. Riley, 488 U.S. 445, 451 (1989); California v. Greenwood, 486 U.S. 35, 41 (1988); Dow Chem., 476 U.S. at 238-39 n.5; Ciraolo, 476 U.S. at 211; Karo, 468 U.S. at 722 (O'Connor, J., concurring); Katz I, 389 U.S. at 360 (Harlan, J., concurring). n138. Previously, cases that have considered the Fourth Amendment propriety of using enhancements when conducting a search have done so while also considering the petitioner's reasonable expectation of privacy. See generally Riley, 488 U.S. at 451; Greenwood, 486 U.S. at 41; Dow Chem., 476 U.S. at 238-39 n.5; Ciraolo, 476 U.S. at 211; Karo, 468 U.S. at 722 (O'Connor, J., concurring); Katz I, 389 U.S. at 360 (Harlan, J., concurring). n139. Will the Court say that Kyllo and its progeny are to form the future of searches aided by sense-enhancing devices, much like Miranda and its progeny have come to be synonymous with a suspect's right not to be coerced while in custody? If this line of thought is followed with Kyllo, as it was with Miranda, Kyllo, like Miranda, will be weakened to such a point that there is nearly an exception for everything it was initially designed to prevent. n140. Because night scopes (night vision binoculars) can be purchased at most hunting and survival stores, courts have found them to be in the general public use and, in light of Kyllo, have held that their use against the home does not constitute a search. See Katz II, 2001 WL 1012114, at 2. n141. This is because the Court directly stated that the rule is designed to protect against sense-enhancing devices that are far more sophisticated than these objects. See Kyllo VII, 533 U.S. at 37 n.4; see also supra note 134. n142. See Katz II, 2001 WL 1012114, at 2 n.4 (holding that the police officer 's use of "night vision binoculars" to obtain visual images "may very well be "in general public use' such that their use" does not constitute an illegal search). n143. "The contours of its new rule are uncertain because its protection apparently dissipates as soon as the relevant technology is "in general public use.'" Kyllo VII, 533 U.S. at 47 (Stevens, J., dissenting). n144. Once again, perhaps the Kyllo holding is elastic enough for future inventions to be included within the definition of a sense-enhancing device. See supra note 134. n145. Perhaps the most far-reaching question is how long will it be until thermal imagers are considered to be in the general public use, when over thirty-five percent of law enforcement agencies already use thermal imagers, and institutes like the National Law Enforcement and Corrections Technology Center further develop technology and ensure distribution. See supra note 73. n146. This should suggest to most readers that having such loose guidelines is likely to result in the same plethora of differing opinions that were present prior to Kyllo. See supra note 136. In Katz II, the court found that because the petitioner did not raise the issue of whether or not the use of a thermal imager constituted a search, the issue could not be raised on appeal. 2001 WL 1012114, at 2. In that jurisdiction, the use of a thermal imager did not constitute a search, so the defendant did not even know that its use could be challenged in the initial trial, despite the fact that Kyllo was decided between the initial decision and Katz's appeal. Id. n147. In Dow Chemical, the Court gave weight to the fact that the photographs at issue were similar to those taken when engaged in the activity of mapmaking, and that anyone "with an airplane and an aerial camera could readily duplicate them." 476 U.S at 231. One must wonder though, whether an expectation of privacy may hinge on the exception to the rule, rather than his or her likely expectation that their acts constitute knowing exposure and therefore receive no constitutional protection. n148. "To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment." Kyllo VII, 533 U.S. at 34. "The people in their houses, as well as the police, deserve more precision." Id. at 39. "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 . . . . We can quite confidently say that thermal imaging is not "routine.'" Id. at 39-40 n.6 (internal citations omitted). n149. 533 U.S. 27 (2001) [hereinafter Kyllo VII]. n150. Id. at 47 (Stevens, J., dissenting).