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In 2001, the United States Supreme Court decided that by performing FLIR surveillance of private property without a search warrant, law enforcement violates the Fourth Amendment's protection from unreasonable searches and seizures. Kyllo v. United States, 533 U.S. 27 (2001)

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SUPREME COURT OF THE UNITED STATES
KYLLO v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 99—8508. Argued February 20, 2001–Decided June 11, 2001

Suspicious that marijuana was being grown in petitioner Kyllo’s home in a triplex, agents used a thermal imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. The scan showed that Kyllo’s garage roof and a side wall were relatively hot compared to the rest of his home and substantially warmer than the neighboring units. Based in part on the thermal imaging, a Federal Magistrate Judge issued a warrant to search Kyllo’s home, where the agents found marijuana growing. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Ninth Circuit ultimately affirmed, upholding the thermal imaging on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home. Even if he had, ruled the court, there was no objectively reasonable expectation of privacy because the thermal imager did not expose any intimate details of Kyllo’s life, only amorphous hot spots on his home’s exterior.

Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search,” and is presumptively unreasonable without a warrant. Pp. 3—13.

(a) The question whether a warrantless search of a home is reasonable and hence constitutional must be answered no in most instances, but the antecedent question whether a Fourth Amendment “search” has occurred is not so simple. This Court has approved warrantless visual surveillance of a home, see California v. Ciraolo, 476 U.S. 207, 213, ruling that visual observation is no “search” at all, see Dow Chemical Co. v. United States, 476 U.S. 227, 234—235, 239. In assessing when a search is not a search, the Court has adapted a principle first enunciated in Katz v. United States, 389 U.S. 347, 361: A “search” does not occur–even when its object is a house explicitly protected by the Fourth Amendment–unless the individual manifested a subjective expectation of privacy in the searched object, and society is willing to recognize that expectation as reasonable, see, e.g., California v. Ciraolo, supra, at 211. Pp. 3—5.

(b) While it may be difficult to refine the Katz test in some instances, in the case of the search of a home’s interior–the prototypical and hence most commonly litigated area of protected privacy–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. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. Thus, obtaining by sense-enhancing technology any information regarding the home’s interior that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman v. United States, 365 U.S. 505, 512, constitutes a search–at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. Pp. 6—7.

(c) Based on this criterion, the information obtained by the thermal imager in this case was the product of a search. The Court rejects the Government’s argument that the thermal imaging must be upheld because it detected only heat radiating from the home’s external surface. Such a mechanical interpretation of the Fourth Amendment was rejected in Katz, where the eavesdropping device in question picked up only sound waves that reached the exterior of the phone booth to which it was attached. Reversing that approach would leave the homeowner at the mercy of advancing technology–including imaging technology that could discern all human activity in the home. Also rejected is the Government’s contention that the thermal imaging was constitutional because it did not detect “intimate details.” Such an approach would be wrong in principle because, in the sanctity of the home, all details are intimate details. See e.g., United States v. Karo, 468 U.S. 705; Dow Chemical, supra, at 238, distinguished. It would also be impractical in application, failing to provide a workable accommodation between law enforcement needs and Fourth Amendment interests. See Oliver v. United States, 466 U.S. 170, 181. Pp. 7—12.

(d) Since the imaging in this case was an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant was supported by probable cause–and if not, whether there is any other basis for supporting admission of that evidence. Pp. 12—13.

190 F.3d 1041, reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor and Kennedy, JJ., joined.

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Believe it or not, the structure profile is probably the oldest and most common law enforcement application for a handheld thermal imager. It is also the most challenging application, due to a questionable Supreme Court ruling. However, the general notion is that you can use a thermal imager to help identify the presence of an indoor marijuana grow.

The Indoor Challenge

Growing plants indoors is not new, nor difficult. By bringing the soil inside (in a planter), regularly watering the plant, and allowing natural sunlight into the room, you can grow almost anything inside. The problem with growing marijuana inside, however, is that it's illegal (it's illegal outdoors too, but you get the point). And growers are greedy. Since it is illegal, they cannot grow plants near windows. Since they are greedy, they are not happy with just four or five plants.

Therein lays the pot grower's conundrum. He needs light, but cannot use natural light. Therefore, he has to use artificial light that simulates sunlight. Besides the tremendous amount of electricity this requires, it generates an overwhelming amount of heat. This is problematic for the grower, as marijuana does not grow well in hot environments.

So, the pot grower has to vent this excess heat somewhere outside the pot growing room. The greedier he is, the more plants he grows. The more plants he grows, the more lights he needs. The more lights he needs, the more heat he generates. The more heat he has, the more he has to vent. And, since the thermal imager sees heat...it can be a great tool to locate abnormal heat signatures on and around buildings.

By comparing a suspect structure to similar structures, you might see unusual heat build-up that indicates a grow room. Or, you might see strange heat patterns indicating the location and direction of vents. Either way, it can be another indicator in your investigation that the suspect is indeed growing marijuana.

Restrictions

Up until 2001, police officers could use a thermal imager to scan any home, farm, office, shed or other structure at their whim. Obviously, good police work dictates building sufficient probable cause to get an arrest or search warrant. Not only is it unethical, but it would also be a waste of time and effort to scan homes and buildings at random, just hoping to find odd heat patterns. As an investigator, you need to put in the time and effort to do things the proper way. The TI is not a shortcut to a good investigation; it's just a tool to help generate another piece of evidence.

That said, 2001 changed the thermal imaging landscape in the US. Erroneously stating that thermal imaging was a technology not available to the general public, and concerned that some unknown future technology might make it possible to see the intimate details of private life within the confines of a home's four walls, the Supreme Court banned a current technology that does not reveal the intimate details within a home.

Catch that? Yep, worried about something that does not yet exist that could see into a home, the justices decided to restrict a technology that does exist but does not see into a home. So, courtesy of Kyllo v. U.S., police officers must now obtain a search warrant prior to performing a thermal scan of a private dwelling. Notice, the Kyllo decision applies only to private dwellings, where the expectation of privacy is highest.

Now, some jurisdictions have required thermal search warrants for years. Some may now stretch the Kyllo decision to include businesses, outbuildings and the like. But as far as the U.S. Supreme Court cares, the warrant restriction applies only to scans of dwellings.

Ethical Use on Structures

As mentioned above, randomly scanning buildings to find a suspicious heat signature is wrong and a waste of resources. But once you have initiated a proper investigation into a suspect building, the TI can be part of the evidence you collect to prove your case.

Prior to scanning the suspect building, be sure you have your local prosecutors on board. Show them the technology; have them give their interpretation of the Kyllo decision. Demonstrate how the TI can help you gain additional evidence against the suspect without ever intruding into his personal space, or even stepping foot on his property.

Before you take the TI to the street on your first investigation, get formal training. One online article cannot even come close to giving you all the fundamentals necessary to legally and ethically perform a thermal scan of a structure. The Law Enforcement Thermographers' Association is the primary law enforcement trainer for TI use. Yes, I instruct for them. Yes, it's a plug. But, the reality is that if you plan to build indoor grow cases with a thermal imager, you need to be prepared for court. The LETA training is the only way I know to be certified and be ready.

Like every other thermal imaging application, the TI is not the silver bullet or ultimate tool. It is just one more tool in the toolbox that can help officers build a better case. Properly used, the TI can generate additional evidence to help secure the final search warrant, allowing you to go in and seize a lot of marijuana...and put a pot grower out of business.

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Prisoner#1 said:
it works the same as areal searches, if they spot marijuana
growing from the air they have to find a reason to come to your
property and view it from the ground before they can file for a
warrant.

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It means that they can't use thermal imaging to obtain a search warrant.

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Spotting pot from the air is indeed sufficient to get a warrant.

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Chemy said:

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Spotting pot from the air is indeed sufficient to get a warrant.

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Not if its in your backyard where you have an expectation of privacy.

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Syllabus(b) On the record here, respondent's expectation of privacy from all observations of his backyard was unreasonable. That the backyard and its crop were within the "curtilage" of respondent's home did not itself bar all police observation. The mere fact that an individual has taken measures to restrict some views of his activities does not preclude an officer's observation from a public vantage point where he has a right to be and which renders the activities clearly visible. The police observations here took place within public navigable airspace, in a physically nonintrusive manner. The police were able to observe the plants [p208] readily discernible to the naked eye as marijuana, and it was irrelevant that the observation from the airplane was directed at identifying the plants and that the officers were trained to recognize marijuana. Any member of the public flying in this airspace who cared to glance down could have seen everything that the officers observed. The Fourth Amendment simply does not require police traveling in the public airways at 1,000 feet to obtain a warrant in order to observe what is visible to the naked eye. Pp. 212-215.

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What remedy are you allowed under the law for this violation? What mechanism provides for the enforcement of your constitutional rights in this situation?

I'm imagining a situation where you find FLIR being used locally and file a FOIA request for the video from the FLIR and end up seeing that they are indeed looking into (searching) people's homes with this device. What could you do?

I'm also not sure that I'm understanding you right. FLIR searches are illegal, illegally obtained evidence cannot be used to obtain a warrant right? There is no good faith exception since it's already been clearly decided and so the cops know that it's illegal.

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Seuss, all this says is that infrared photography/video directed to a residence isn't legal without a warrant. As a result, it is able to be suppressed if their isn't some other exception applicable, which I can't imagine there ever would be.

The reasoning is that infrared photography can tell you more information about the contents of a residence than a reasonable person would understand to be transmitting to the street or air; i.e. location of people in the house, layout, what devices are inside, et cet...

SO while someone walking by their window and beinf viewed in the visible spectrum doesn't have a letimitamte expection that someone won't look in the windo, someone on the other side of a wall has a legimitimate expectation that someone won't be watching them w/ other parts of the spectrum.

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Thank you.

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johnm214 said:

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Chemy said:

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Spotting pot from the air is indeed sufficient to get a warrant.

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Not if its in your backyard where you have an expectation of privacy.

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Yeah, but that's just it, you don't have an expectation of privacy in your backyard.

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not even in my back yard?