RIP Justice Scalia

0. Introduction

I was saddened to hear that US Supreme Court Justice Scalia died today. Supreme Court Justices are some of the most powerful people in the US and I am constantly amazed at how well they do their job, even though they have little checks on their power and lifetime appointments. Reading court cases is a little hobby of mine that began about ten years ago and it has really made me respect the legal process in a way I don’t think would be possible otherwise. It has also made me grumpy about how terrible our legislators are that they leave such large gaps in the brickwork which must be filled with grout by our court system.

If you have never read an opinion of a high court, I can only say you really don’t know what you’re missing. They are very readable and I can say with absolute certainty that any prior opinions you had would likely be tempered by reading the cases and the dissents (if any).

For the record, I am not a fan of Justice Scalia, but I have always found him to be an extremely reasonable person (insofar as his opinions can reveal) and reasonable people can disagree. The world seems perpetually in dire need of reasonable people much more than it is in need of people that agree with me. I, for one, will miss his presence on the bench for this reason.

I thought I would take some time to go over a court case whose opinion was written by Scalia in his honor. This case, I think, shows Scalia’s commitment to the Constitution, while at the same time underscoring the fact that the man was aware of the kinds of conflicts present in society. That case is Kyllo v United States.

1. What Happened?

A federal agent was suspicious that marijuana was being grown in Kyllo’s residence. Reasoning that grow lamps would be needed to produce marijuana indoors, and that these would use significant electricity and emit significant heat, the agent used thermal imaging equipment to scan Kyllo’s residence. The agent found that there were high-heat areas near the garage and sidewall of the place, and concluded that his suspicions were correct. In combination with utility bills and informant testimony, a search warrant was issued.

Kyllo was, in fact, growing marijuana, but argued that the evidence obtained by the warrant should be thrown out because the search was unconstitutional. The defense argued that the search was unconstitutional because the thermal imaging done of the place was itself already a warrantless search and barred by the Fourth Amendment, that without it the warrant would not have been issued. This was rejected, and Kyllo entered a conditional guilty plea.

Subsequent courts seemed to have some confusion during the appeal process, first overturning the decision to throw out the search, but then retracting and upholding. The case was granted a hearing by the Supreme Court.

2. Scalia’s Opinion

Justice Scalia delivered the opinion of the court. He outlined the various edges of the ill-defined Fourth Amendment, taking pains to point out how creeping technology was viewed by the courts. At its core, he emphasizes, the question of whether a warrantless search is reasonable should be answered “no” with very few exceptions. He recognizes that whether or not a search is unreasonable is not entirely clear based on precedent. Until recently, he notes, permissibility of a search was based on something being considered common law trespass. It is only with the rise of better cameras, flight, and so on, that technology has enabled the government to see what before would have required such a trespass to see.

The matter was somewhat complicated by a prior ruling involving a listening device on a phone booth in Katz v. United States. In that ruling it was argued that the expectation of privacy that a person had in a phone booth was of the same kind as they would expect in their home. Ultimately it was noted that there was a subjective expectation of privacy and that society would consider this expectation reasonable. Specifically, Scalia quotes California v. Ciraolo in saying, “the individual manifested a subjective expectation of privacy in the object of the challenged search,” which may have been taken quite literally by the District Court’s opinion in this case when they ruled in part that because Kyllo took no pains to conceal the heat emissions of his home this showed he had no subjective expectation of privacy in these details.

So Justice Scalia gets to the heart of it and states simply, “The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.” But it is not so simple even here, because the question is not simply how do we cripple the use of technology in some legal sense, but also how to we create a rule so that law enforcement officers can determine in advance of a judge whether what they are doing is lawful. Perhaps you will agree with me: it is manifestly unfair to expect law enforcement officers to constantly make personal judgment calls about whether or not a judge will think, for instance, that a person has some subjective expectation of privacy and that “society” will agree; it’s bad enough that the legislature abdicates its duty to the courts, but for the courts to then abdicate their duty to the police is essentially the end of a lawful society. So Justice Scalia states plainly,

We think that 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,” Silverman, 365 U. S., at 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 intrusion that existed when the Fourth Amendment was adopted.

Simply, we should interpret technology in such a way that is consistent with the original period in which the Amendment was passed. Though the framers would not have known about thermal imaging equipment, they would have known what most people could reasonably determine about you without being trespassers and this should guide us. And so, the thermal imaging scan constituted a search and was therefore thrown out as unconstitutional.

3. Dissent and Rebuttal

3.1 Dissent

This was not a simple case for the court. The dissent argued that there was sufficient precedence to decide the case, and that would render the thermal imagining scan to not be a search in terms of the Fourth Amendment. First, it was argued, the Fourth Amendment clearly has some measure of locality to it, namely, being secure in your home etc., and that heat emissions might as well be smoke wafting down the street from an opium den. (And by implication smelling them while passing by is not a search.)

Furthermore, it was argued, the thermal imaging equipment was not robust enough to constitute a search in that it didn’t even reveal enough detail; that is, for something to be a remote search (so to speak) it would need to be information the officers would have to be present to obtain in such a way that their presence would constitute a search. So you don’t get to be three houses away with a listening device on someone’s window, because it isn’t that you’re three houses away that matters, it’s that absent this use of technology you’d have to be in the room with them to hear their hushed voices. But, the dissent argues, that isn’t the case here: the scan didn’t reveal so much. For instance, after a rain a warm portion of a home would dry quicker than another; or on a cold day, excessive heat could be seen in how it distorts the air (and hence light) like what happens with shimmering seen on a roadway. Thus in principle the scan was just like plain view. Additionally, the dissent points out that this kind of knowledge could in principle have been obtained differently; for example, by a search of the trash finding grow lamps (see California v. Greenwood—no really, read it, it’s good and the dissent is an amazing read).

The dissent takes exception to the opinion of the court looking to establish some kind of sweeping view of encroaching technology. It argues that such creeping technology is concerning, but this is not such a case and therefore this judgment should not be used that way. (Yes, conservatives being against “judicial activism” is just a meme, most judges do not enjoy “making law” as it were.)

3.2 Rebuttal

Justice Scalia addresses the concerns of the dissent in the opinion. On the main point, Scalia is not persuaded by the thought that the scope of this case is so small. He is unconvinced that there is some meaningful distinction between “off-the-wall” and “through-the-wall” surveillance. As he suggests, taking such a mechanical view of the Fourth Amendment would constantly erode privacy expectations, and in any case the surveillance used in Katz was of the “off-the-wall” sort, since it collected sound waves emanated by the glass. Furthermore, the fact that the quality of the imaging was poor was not a sufficient barrier: the mere fact that something requires interpretation and inference does not insulate law enforcement activity from being labeled an intrusion. After all, a chemical sensor making a beep requires interpretation of the beep, but placing such a sensor in a home doesn’t guard the government against unreasonable search. The government doesn’t get to play six degrees of separation in deciding whether something is or isn’t a search. (United States v. Karo; imagine: “I didn’t conduct a search, your honor, I just heard a beep and interpreted it.”)

Justice Scalia is also unpersuaded that the details of the image were so poor, because “quality of an image” is not an obvious standard that the government could use to determine in advance whether some activity is lawful. For all we know, though this case’s image were poor, at that instant law enforcement officers somewhere else had access to something just a bit better. Not only that, it was unclear that this image didn’t in fact reveal intimate details. For instance, he suggests that thermal imaging would reveal at which hour someone takes a bath—a detail that is surely intimate—while something much more sophisticated used at some other time might only reveal that someone left a light on. That is, Scalia asserts that if the ruling were not to throw this out, law enforcement would be in a situation where they couldn’t even know in advance of using the technology whether they would learn something “intimate” until they’d already used it.

Scalia, finally, is unimpressed with the dissent’s position that this is some kind of information that could in principle be obtained without trespass as this in itself is insufficient to guide law enforcement. His own position is, in fact, similar to that, but he finds the dissent to be at odds with its own logic and reiterates that the dissent offers no useful standard. He says, clearly enough that it would be a waste to summarize,

The dissent concludes that Katz was such a case, but then inexplicably asserts that if the same listening device only revealed the volume of the conversation, the surveillance would be permissible…. Yet if, without technology, the police could not discern volume without being actually present in the phone booth, JUSTICE STEVENS should conclude a search has occurred…. The same should hold for the interior heat of the home if only a person present in the home could discern the heat. Thus the driving force of the dissent, despite its recitation of the above standard… appears to be a distinction among different types of information—whether the “homeowner would even care if anybody noticed”…. The dissent offers no practical guidance for the application of this standard, and for reasons already discussed, we believe there can be none.

4. Creeping Technology

What this case brings to light is not just the role creeping technology plays in the lives of Americans, but where Scalia found guidance for moving forward and where that guidance indicated to him a measure of constraint. Though the judgment of the court was somewhat activist in the eyes of the dissenting Justices, the holding does contain actual limits on law enforcement’s use of technology and the holding also contains room for things to change. The key portion of the holding to note is a bit that the dissent doesn’t seem too interested in, that being the notion that this represented a kind of technology not in common use. If everyone carried thermal imaging goggles, then Scalia would easily hold that this did not constitute a search under the Fourth Amendment.

The situation is wholly analogous to the situation at the time of adoption. It is not the court’s opinion that technology necessarily constitutes an intrusion, but rather that the technology represents what is normally available. People normally have eyes, so you can’t ask them to not see something if they are walking by your home. Thus, this case is on the side of technology in the sense that technological creep can skirt the Constitution when that technology is of relatively common use or understanding. That is, when people would find it unreasonable to “not look.” But this is just a reiteration of the point that the Fourth Amendment protects people’s subjective expectations of privacy against intrusion, and technology may change those expectations (in which case such inspection would not be a “search”) but it can’t change the Fourth Amendment.

5. Some Final Questions

Much umbrage has been directed at the so-called conservative justices on the bench; that the Constitution is a living document and that some kind of originalism is nonsense. Having read this summary (and hopefully the case, after I’ve piqued your interest), if you thought that before, do you still think that now? Or do you see how someone can use this sensibly as a guiding principle without having to read the minds of people long dead?

Even though the dissent thinks the court has overreached a bit in this ruling, I don’t think the situation is yet wholly clear. In a sense, it simply shifts the burden of what constitutes a subjective expectation of privacy to what counts as technology. Lest you doubt this, ask yourself whether this court case indicates that the use of drug sniffing dogs or bomb sniffing dogs constitutes a “search” under the Fourth Amendment. If you’re interested in the resolution to this, look up Illinois v. Caballes (2004).

In a sense, this case shows that originalism is not some inflexible morass of psychic skills and prescriptivism. It shows that it though it doesn’t leave so much room for the Constitution to breathe, it does allow us to breathe. Furthermore, it leaves room for the legislature to do their job and clarify laws. Would that they did.

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