Is using a thermal imager to look at private property a constitutional search? That was what the Supreme Court had to ask themselves in 2001 when they took Danny Lee Kyllo, or DLK, into custody for growing marijuana in his Oregon, U.S.A. home after the police used a thermal imager to see where heat was leaving the home. After seeing evidence of a grow room, they obtained a warrant and searched the home. DLK then sued them for using the imager, claiming that it went against his fourth amendment rights. However, a thermal imager is not a search and does not require a warrant because heat is public and should not be expected to be kept private, the device does not have to be on private property to be used, and the imager does not see the interior of the home or any of the activities going on inside of it.
First, heat is ordinary and public, and should not be expected to be kept private. According to Source #1, heat waves are similar to aromas in the way that they will easily spread from one location to another. To suppress an extensive amount of heat from being found suspicious would be unmanageable. DLK might argue that the heat was his own and should have been kept hidden, which is plausible, but attempting to hide the heat of his grow room proved to be a fruitless endeavor. So, because the heat radiates so openly, this suggests no protection from the Constitution.
Next, the device does not have to be on private property to be used. According to Source #2, thermal imagers can be used around buildings, not in them. Also, as seen in Source #3, thermal imagers can be used from afar. Some may argue that since the heat was still on private property at the time of the scan, it should be considered unlawful. However, heat waves are public as soon as they leave the home according to Source #1, and the thermal imager did not cross any lines. Although the imager is being used to look at private property, the imager is similar to a camera, in the sense that the imager does not need to be in the exact place of the location the photographer is trying to capture. Therefore, using the device while not on private property adds to why the scan should not be considered a search.
Finally, the imager does not see the interior of the home or any of the activities going on inside of it. Source #3 shows that using a thermal imager does not see through the exterior surfaces of the home. Also, according to Source #4, the device “does not function to read ‘heat signatures’ of persons and objects within the building.” Although the police had the intention of thoroughly searching the home, they did not do this until they had gotten a warrant by means of revealing evidence they received from the imager. These points prove that the thermal imager does not reveal anything directly inside of DLK’s home. The police got a legal search warrant to know for sure if he was growing.
In conclusion, DLK did not have his Fourth Amendment rights violated by the police. For one thing, the thermal imager did not look inside the home. Furthermore, heat is ordinary and public and it cannot be kept private. And lastly, the imager does not have to be on private property to be used. This case was very important to the legal system in the United States because it will serve as a precedent in future cases. Moving forward, it is easy to see how other people in a similar situation may want to try and gather enough information to get a warrant just in case, in order to avoid the same problems police had to go through.
Source #1: (DLK), Petitioner, v. United States of America, Respondent. No. 99-8508, United States Supreme Court Reply Brief, January 22, 2001.
Source #2: Jonathan Bastian, “Structure Profiles with a Thermal Imager,” Officer.com, October 23, 2007.
Source #4: (DLK), Petitioner, v. United States, 533 U.S. 27 (2001).
Dear Reader,
This is my take on the Kyllo vs. United States case from 2001. Although the respondent was found guilty, I believed that using a thermal imager was not against DLK's privacy rights. This was a school assignment. Thank you!
-nlsstuff
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