Monday, November 25, 2002

HIGH KYLLO-WATT LAMPS (originally posted 6/11/01)

It's never a pleasant task for any right-thinking person to have to pick between (1) supporting a loophole-lawyer's effort to loose a criminal, and (2) disagreeing with Justice Scalia. So it is with some trepidation that we have to criticize the Court's holding today in Kyllo v. United States, No. 99-8508, the marijuana-lamps surveillance case. We are somewhat consoled, however, by our confidence that if he had been writing on a blank slate, Justice Scalia would have done the obvious and instructed Mr. Kyllo that he was welcome to sue if he was upset about a Fourth Amendment violation, but that it has no bearing whatsoever on the validity of his criminal prosecution.

Call us crazy, but we don't see how standing outside a house and passively collecting emanations therefrom is a "search" of the house simply because the collected radiation gives rise to an inference of illegal activities in the house. The use of "sense-enhancing technology" may or may not be a legitimate legislative concern, but it does not create a search where there was none before. Yet we learn from the Court that henceforth, "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 general public use." Slip op. at 6-7 (internal quotation marks and citation omitted).

This is nonsensical. Our heart goes out to those convicts wasting away in prisons as a result of nearsighted police officers viewing incriminating evidence through open windows because the policemen were wearing contact lenses before they became sufficiently prevalent to have entered "general public use." As to those scofflaws who were caught by contact-lens wearing officers AFTER they came into public use, on the other hand, well tough luck . . . obviously not a search.

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