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9. Kyllo v. United States (2001)
The Fourth Amendment to the U.S. Constitution declares, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Yet in case after case, the Supreme Court has undermined that protection, leaving the people subject to an increasing variety of government searches, many conducted without a warrant. Occasionally, however, the Court does hold the government accountable under the Fourth Amendment. One memorable example came in the 2001 case of Kyllo v. United States.
At issue was the federal government’s use of warrantless thermal imaging to detect signs of marijuana cultivation inside of a suspect’s house. According to the government, no warrant was needed because the thermal imaging device detected “only heat radiating from the external surface of the house.” In other words, since the telltale heat was basically discernible from outside of the property, the Fourth Amendment didn’t apply.
Writing for an unusual 5-4 majority line-up that included both conservative Justice Clarence Thomas and liberal Justice Ruth Bader Ginsburg, Justice Antonin Scalia rejected the government’s dubious theory. “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,” Scalia wrote, “the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” The Fourth Amendment lived on to fight another day.
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