The Ninth Circuit U.S. Court of Appeals ruled on Tuesday that the Constitution’s Fourth Amendment protects citizens against the warrantless use of thermal imaging scanning devices to measure heat emissions from residences. The Court rejected contrary case law from the seventh, eighth, and eleventh circuits on grounds that they improperly analogized excess heat from residential interiors to heat emanating from trash.
“This decision affirms the right of individuals to be free in their home from unreasonable searches,” NORML Executive Director R. Keith Stroup, Esq. said. Stroup noted that the conflicting decisions by the circuit courts may persuade the Supreme Court to rule on the issue.
Thermal scanners detect heat from numerous sources inside the home such as bathing, ovens, indoor gardening, and sexual activity. The technology is often used by law enforcement officials to identify possible indoor marijuana-grow operations.
The details unveiled by a thermal imager are sufficiently intimate to give rise to a Fourth Amendment violation, declared Judge Robert Merhige, writing for the court. “While the imager cannot reproduce images or sounds, it strips the sanctuary of the home of the ‘right to be let alone’ from arbitrary and discriminatory monitoring by government officials,” he said. “The use of a thermal imager to observe heat emitted from various objects within the home infringes on an expectation of privacy that society deems reasonable.”
Dissenting Judge Michael Hawkins argued the use of thermal imaging fails to constitute a search “under contemporary Fourth Amendment standards.”
Tanya Kangas, Director of Litigation for The NORML Foundation, praised the majority opinion. “Fortunately, two of the three judges in this case looked to common sense and the privacy expectations of typical reasonable persons to be free in their homes.”
The case is United States v. Danny Lee Kyllo, No. 96-30333 (9th Cir. filed April 7, 1998).
For more information or to notify the NORML Foundation of additional thermal imaging cases, please contact Tanya Kangas @ (202) 483-8751. For more information on thermal imaging and the law, please contact NORML Legal Committee member John Henry Hingson @ (503) 656-0355.
