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Eighth Circuit Holds That Thermal Imaging Warrant Requires only Reasonable Suspicion:
Here's a fascinating new decision on how the Fourth Amendment regulates thermal imaging devices: United States v. Kattaria. In this case, the Eighth Circuit (Loken, joined by Wollman and Gibson) rules that the police only need reasonable suspicion to obtain a "warrant" to conduct thermal imaging monitoring of a home. The Court's rationale is based on a policy argument:
If the same probable cause is required to obtain both [warrants to search homes and warrants to use imaging devices], law enforcement will have little incentive to incur the expense of a minimally intrusive thermal imaging search before conducting a highly intrusive physical search. For these reasons, we are inclined to believe that the same Fourth Amendment reasonable suspicion standard that applies to Terry investigative stops should apply to the issuance of a purely investigative warrant to conduct a limited thermal imaging search from well outside the home.
  This is a strong policy argument but a weak legal one. In Kyllo v. United States, the Supreme Court stated:
Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.
  The Kattaria court concludes that a "warrant" as used in Kyllo could be based on the Terry stop reasonable suspicion standard. But I don't think there is much of a reason to think this: The Kyllo Court referred explicitly to a warrant, and the word "warrant" is normally used to mean a probable cause warrant. The Kattaria court notes that there are some kinds of warrants that have been upheld that are not based on probable cause to believe a crime has been committed, such as administrative warrants. That's true, but they are all in the context of "special needs" cases arising outside the context of criminal investigations. This case is not a special needs case, it's a straightforward drug case. I have never heard of a Terry-stop "warrant," and I think the Court is being rather creative in inventing one. I can understand the policy argument for the new rule, but I think it's hard to square with existing precedents.

  As best I can tell, this decision creates a split with the Ninth Circuit but is not itself certworthy; the Kattaria court added an alternative holding that probable cause existed even if it wasn't needed, effectively insulating this particular case from Supreme Court review. But I suspect we'll see this issue in another case, and eventual Supreme Court review seems reasonably likely. Stay tuned. Thanks to Howard for the link.

  UPDATE: This was amended a bit after I realized that one of my arguments misread a line in Kyllo.

  ANOTHER UPDATE: Commenter Gustav points out this very relevant passage from Griffin v. Wisconsin:
JUSTICE BLACKMUN's dissent would retain a judicial warrant requirement, though agreeing with our subsequent conclusion that reasonableness of the search does not require probable cause. This, however, is a combination that neither the text of the Constitution nor any of our prior decisions permits. While it is possible to say that Fourth Amendment reasonableness demands probable cause without a judicial warrant, the reverse runs up against the constitutional provision that "no Warrants shall issue, but upon probable cause." Amdt. 4. The Constitution prescribes, in other words, that where the matter is of such a nature as to require a judicial warrant, it is also of such a nature as to require probable cause. Although we have arguably come to permit an exception to that prescription for administrative search warrants,[fn 4] which may but do not necessarily have to be issued by courts, we have never done so for constitutionally mandated judicial warrants. There it remains true that "[i]f a search warrant be constitutionally required, the requirement cannot be flexibly interpreted to dispense with the rigorous constitutional restrictions for its issue." Frank v. Maryland, 359 U.S. 360, 373 (1959). JUSTICE BLACKMUN neither gives a justification for departure from that principle nor considers its implications for the body of Fourth Amendment law.
Oddly, the Kattaria court does not cite Griffin. Instead, the Eighth Circuit cites its own precedent in United States v. Lucas, No. 05-2165, slip op. at 8-9 (8th Cir. Aug. 23, 2007) (en banc), for the view that "the Court has upheld administrative warrants as reasonable without a showing of probable cause in various contexts." But the Kattaria court ignores the key passage from Griffin in which the Court expressly limits the use of non-pc warrants outside the context of administrative warrants.
MikeC&F (mail):
If the same probable cause is required to obtain both [warrants to search homes and warrants to use imaging devices], law enforcement will have little incentive to incur the expense of a minimally intrusive thermal imaging search before conducting a highly intrusive physical search.

This is terrific doublespeak. The panel is saying: "By giving you less privacy rights in your home, we are giving you greaer privacy rights."
10.5.2007 5:07pm
OrinKerr:
I think they're saying that requiring a warrant for such a minimal search doesn't make sense: it would be more sensible to allow this to be a technique used to get PC rather than to require PC to use it. That seems quite plausible, but I think it was already implicitly addressed in Kyllo.
10.5.2007 5:18pm
PatHMV (mail) (www):
As I said one of the last times we discussed Kyllo, I think Justice Scalia is right on target with his analysis in that opinion. And, regardless of how you feel on the merits, this is an area that Justice Scalia is extraordinarily passionate about.

Kyllo was one of those rare cases with Scalia and Thomas siding with the "liberal" members of the Court, with a dissent by Stevens, joined by Rehnquist, O'Connor, and Kennedy. Taking up this or a similar case would certainly give us some insight into where Roberts and Alito stand on 4th Amendment issues, an area where Scalia is particularly strong and passionate. I would accept Scalia's passion for the issue to lead to cert. being granted (in a similar case; I'll defer to Orin on his reading of the other factors involved which would tend against this case getting cert), and I would expect Scalia to deliver a strong slap-down, saying, strongly, that Kyllo means what Kyllo said.
10.5.2007 5:18pm
OrinKerr:
PatHMV, I'm curious: Why do you conclude that Justice Scalia feels "extraordinarily passionate about" this area?
10.5.2007 5:21pm
Shelby (mail):
I would expect Scalia to deliver a strong slap-down

I'm sure you're right (because it's Scalia rather than, say, Posner) -- but the question is, would Scalia write the opinion or the dissent?
10.5.2007 5:21pm
jpe (mail):
"[the agent]'s supporting affidavit included thermal imaging results...and additional facts from [his] ongoing investigation. This...provides important corrobaration that criminal activity is likely being conducted in a home before the homeowner is subjected to a full physical search." (emphasis in original)

The judge makes it sound like the agent is doing the suspect a favor; as if, but for the thermal imaging, they'd concoct evidence and bust the door down.

On preview, what MikeC&F said.
10.5.2007 5:21pm
Chris 24601 (mail):
Eh? 4A: "[N]o Warrants shall issue, but upon probable cause." It's one thing to say that a search might not need probable cause, or that a search might not need a warrant, but warrants need probable cause, don't they?
10.5.2007 5:23pm
Christopher M (mail):
It also seems questionable as a policy matter. I don't know a whole lot about how the "probable cause" standard plays out in practice, but as a legal matter it doesn't even require a greater-than-50% likelihood: under Illinois v. Gates (1983), it just requires a "substantial chance" or "fair probability" (that evidence of a crime will be found). Is it really likely that there are many situations where the police have an amount of evidence that they're confident shows reasonable suspicion, but not confident shows probable cause?
10.5.2007 5:27pm
OrinKerr:
Christopher M,

Yes, all the time; as a practical matter there is a pretty huge gap between reas. susp. and probable cause.
10.5.2007 5:30pm
MikeC&F (mail):
I think they're saying that requiring a warrant for such a minimal search doesn't make sense: it would be more sensible to allow this to be a technique used to get PC rather than to require PC to use it.

I get the argument. But you assume good faith. I do not. For one simple reason.

Here, the panel is giving the government more power to intrude into an individual's privacy. Before the ruling, such thermal searches would require probable cause. Henceforth, reasonable suspicion is good enough. In light of this, the panel's argument seems like doublespeak to me.
10.5.2007 5:32pm
gustav (mail):
I think Scalia already has slapped this idea down. See Griffin v. Wisconsin, 483 U.S. 868, 877-78 (1987) ("The Constitution prescribes, in other words, that where the matter is of such a nature as to require a judicial warrant, it is also of such a nature as to require probable cause. Although we have arguably come to permit an exception to that prescription for administrative search warrants, which may but do not necessarily have to be issued by courts, we have never done so for constitutionally mandated judicial warrants. There it remains true that 'if a search warrant be constitutionally required, the requirement cannot be flexibly interpreted to dispense with the rigorous constitutional restrictions for its issue.' Frank v. Maryland, 359 U.S. 360, 373 (1959).").
10.5.2007 5:34pm
MikeC&F (mail):
"[N]o Warrants shall issue, but upon probable cause." It's one thing to say that a search might not need probable cause, or that a search might not need a warrant, but warrants need probable cause, don't they?

Yep. The logic chain is not hard for men and women of good faith to follow:

1. You need a warrant to conduct a search of a home. Fourth Amendment.
2. A thermal imaging is a search of a home. Kyllo.
3. Therefore....[ ]

Is there a freshman logic student in the country who could not fill in the blacks? Nope. Not one. (Well, maybe the "F" students.)

Yet, on "policy" grounds, three federal judges reached a contrary result. Judicial activism, anyone?

Here is how the law is applied in the War on Drugs.
Step 1. Does logic allow us to affirm law enforcement action? If yet, use logic. If no, proceed to step 2.
Step 2. Is there a policy reason to support the search? [The answer to this question is always, "Yes."]

Granted, there are exceptions. Sometimes courts actually do apply the Constitution. But it's pretty rare. And when it's done, it's usually called "judicial activism."

Anywho, on an unrelated note, I would not be surprised if the Roberts Court ultimately agrees with the Eighth Circuit. If so, we will be told, that in reaching this conclusion, the Court was not overruling precedent.
10.5.2007 5:43pm
OrinKerr:
Nice catch, Gustav -- I've added an update.
10.5.2007 5:49pm
Guest 202:
Prof Kerr,

Can you explain a bit more why you think the court's legal reasoning is weak? As a general matter, all that the 4th requires is that a search be reasonable. Terry and its progeny dictate that w/r/t reasonableness, there is a direct relationship betw. the level of suspicion needed to justify the search and the seriousness of the privacy interest that is invaded. A warrant is not necessary for a search to be reasonable, but its existence (or lack thereof) does go to the reasonableness of the search.

The purpose of the warrant requirement is to have a neutral magistrate review the officer's determination that enough facts exist to rise to the level of suspicion appropriate to justify the intrusion of the particular privacy interest. But whether or not a warrant is required really says nothing about the level of suspicion that is necessary; the scope of the intrusion dictates the level of sucpicion necessary, while the practical realities of the situation dictate whether or not a warrant is required.

The intrusion in this case is certainly quite low; indeed, in Kyllo four of the justices agreed that the invasion was so minimal that it didn't even rise to the level of a protected privacy interest. Thus, a lower level of suspicion should be required for such a search. However, b/c warrants are preferable, and it is easy in such situations to get a warrant, a warrant should be required as well.
10.5.2007 6:13pm
OrinKerr:
Guest 202, see the passage from Griffin v. Wisconsin in the update.
10.5.2007 6:14pm
RL:
ITA with MikeC&F. "Reasonable suspicion" under Terry has, for all practical purposes, become a code word for officer instinct. And officer instinct encompasses all the personal biases and prejudices of the officer exercising it.
10.5.2007 6:19pm
eck:
Curiously, in footnote 5 of Karo (1984) the Court expressly reserved this question on a very similar Fourth Amendment issue (monitoring of radio beacon installed in personal property to determine its presence within private space):

The United States insists that if beeper monitoring is deemed a search, a showing of reasonable suspicion rather than probable cause should suffice for its execution. That issue, however, is not before us. The initial warrant was not invalidated for want of probable cause, which plainly existed, but for misleading statements in the affidavit. The Government did not appeal the invalidation of the warrant and as the case has turned out, the Government prevails without a warrant authorizing installation. It will be time enough to resolve the probable cause-reasonable suspicion issue in a case that requires it.
10.5.2007 6:34pm
Chris 24601 (mail):
Mike C&F: "You need a warrant to conduct a search of a home. Fourth Amendment."

But it doesn't actually say that. It requires reasonableness, not a warrant.
10.5.2007 6:41pm
Edward Lunny (mail):
To take a bit of a different perspective, related more to the method of evidence aquisition than to the opinion. I'll state up front that I'm neither a legal student, nor practitioner, and this position may have been skewered before.. If one were to find evidence lying about the front yard, or say the driveway, in view of any passerby, would such evidence be admisable ? If such evidence were outside of the residence, but ,required enhancement of ones vision to see, would that be admisable ? My point is that the thermal imager doesn't need to see into the residence or structure, it needs only see thermal energy, of an abnormal level, emanating into the public space. I would compare this to unusual odors emanting into a public space that might rouse suspicsions.
10.5.2007 6:57pm
PatHMV (mail) (www):
Orin, I can't point to any particular study, just my general sense. Of course, Justice Scalia writes with a great deal of passion in almost all of his opinions. Nevertheless, my sense is simply that he has a particular reverence for the 4th and 6th Amendments, and has a fairly absolutist interpretation of both of them.
10.5.2007 6:59pm
PatHMV (mail) (www):
Edward, we discussed that issue in the earlier thread I linked to in my first comment above. It's a very good question, and there are, I think, strong arguments to be made on both sides. Justice Scalia's position in Kyllo is that the imaging enhancement provides the officer with information about the interior of the house, in a very different way than, say, odors do. With certain kinds of thermal imaging, we can actually see where people are standing, how close they are standing to each other, etc., inside the house, all based only on thermal emanations. The police shouldn't be able to spy in our house just because somebody invents x-ray goggles.
10.5.2007 7:03pm
Edward Lunny (mail):
"PatHMV"....Point taken. I should have participated in the earlier discussion. And, no , the police shouldn't be able to spy into our homes just because technology affords them the ability to do so. That being said, it isn't neccessary to look into the house, the energy is "visible" outside. Exteriour "odors" can be collected and chemically anaylized to determine the source substance .Damn, sorry that I missed the earlier discussion.
10.5.2007 7:22pm
JunkYardLawDog (mail):
Orin, any chance Kyllo will be overruled or distinguished away. I laways felt it was wrong because thermal imaging is more akin to picking up a cbband broadcast eminating from the moe in which there would be no reasonable expectation of privacy.

Says the "Dog"
10.5.2007 9:01pm
JunkYardLawDog (mail):
Something is wrong today with how firefox is displaying the enter comments window. I can't even read what I'm typing till it posts. Should be always felt and eminating from the home above.

Says the "Dog"
10.5.2007 9:04pm
chuckc (mail):
I'm betting on a reversal per curiam. Any takers?
10.5.2007 9:53pm
Owen Hutchins (mail):
By the logic of this ruling, a "sneak and peek" search would be only minimally intrusive, as the homeowner wouldn't know about it or be inconvenienced.
10.5.2007 11:28pm
MikeC&F (mail):
By the logic of this ruling, a "sneak and peek" search would be only minimally intrusive, as the homeowner wouldn't know about it or be inconvenienced.

Good point.
10.5.2007 11:39pm
Toby:
I've always felt that a penumbra of the 4th amendmanet is privacy, in the snese that "If no one can tell you are doing it, it cab't be of concern to society."

In that vein, extending the reach of what people can and cannot tell is going on beyond the reach of normal human senses is suspicious.
10.6.2007 12:12am
Warmongering Lunatic:
Guest 202 --

Kyllo says thermal imaging without a warrant is presumed unreasonable.

These judges, trying to get around the Kyllo requirement for a warrant, are trying to apply the standard for warrantless investigative stops to the issuance of a warrant for thermal imagine.

The problem is, the standard to issue a warrant is for probable cause. Period. Reasonable suspicion is not permitted as grounds for issuing a warrant.

Absent Kyllo, one could argue that thermal imaging upon reasonable suspicion is not an unreasonable search, and so permissible under the Fourth Amendment. However, Kyllo requires a warrant, which means Kyllo requires a finding of probable cause.
10.6.2007 9:03am
SenatorX (mail):
Why do I have the vision of a bunch of officers watching my wife and I having sex on infrared? Call me crazy but I can't say that would make me very happy. If law enforcement thinks I'm doing something illegal (and has reason to think so) I would rather be assured privacy in my home until they came knocking on my door.
10.6.2007 9:42am
Norman Yarvin (www):
Thermal imagery can't even see through closed windows; although window glass is transparent to ordinary light, it blocks thermal infrared. Under anything even vaguely resembling ordinary circumstances, it won't tell you even where in a room someone is, let alone what their private parts are doing.
10.6.2007 12:25pm
jdh (mail) (www):
I like the language of the opinion - although the opinion itself is crap. The opinion creates a picture of an officer finding a suspicious house and doing a stop-and-frisk with a thermal imaging unit. Funny visual.
10.6.2007 12:25pm
R. Richard Schweitzer (mail):
Has any distinction been found by judicial determination betweenf surveilance (without entry), perhaps using "night vision" equipment, and the same using thermal imaging?
10.6.2007 12:48pm
OrinKerr:
PatHMV writes:
Orin, I can't point to any particular study, just my general sense. Of course, Justice Scalia writes with a great deal of passion in almost all of his opinions. Nevertheless, my sense is simply that he has a particular reverence for the 4th and 6th Amendments, and has a fairly absolutist interpretation of both of them.
I see. I disagree, though; in the 4th Amendment context, at least, Justice Scalia is one of the most pro-government Justices. There are exceptions, but I think not enough to conclude that Scalia has a "particular reverence" for the 4th or takes an "absolutist" view towards it.
10.6.2007 2:45pm
mix (mail):
I am puzzled by the 8th circuits reference to Terry stops. Has the standard changed and I missed it and now police are allowed to initiate Terry Stop searchs for more than weeapons? I am willing to accept that if police had reasonable cause to believe that a nuclear weapon were an immediate threat to the vicinity a warrentless thermal imaging scan of a residence would be justified under Terry, but that doesn't seem to be the case here. Terry distingushed between the rationals for permitting the seizure/stop without a warrent and the search/frisk without a warrent, and the rational for allowing the search was based upon immediate danger which certainly doesn't applly if police can apply for and secure a "reasonable cause" warrent.
10.6.2007 5:23pm
theobromophile (www):

Here, the panel is giving the government more power to intrude into an individual's privacy. Before the ruling, such thermal searches would require probable cause. Henceforth, reasonable suspicion is good enough. In light of this, the panel's argument seems like doublespeak to me.

Add to that: a person probably has a much better chance of knowing what officers know when there is an actual warrant, rather than surveillance.

The Court seems as if it trying to force new technologies into an 18th century paradigm, and failing badly. There is no reason for them to parse "through the wall" or "outside of the wall" distinctions.

As for the idea of odour being akin to thermal imaging... not really. If the house were so hot that heat and steam came off the walls, the police would have probable cause to search (or call the fire department) - that is like the odour of pot seeping out from an automobile. That is far different from using technology to detect otherwise imperceptible temperature gradients.
10.6.2007 5:36pm