Posted by Orin Kerr:
Eighth Circuit Holds That Thermal Imaging Warrant Requires only Reasonable
Suspicion:
http://volokh.com/archives/archive_2007_09_30-2007_10_06.shtml#1191613043
Here's a fascinating new decision on how the Fourth Amendment
regulates thermal imaging devices: [1]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 [2]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 Kyllo Court then remanded to the lower courts "to determine
whether, without the evidence it provided, the search warrant issued
in this case was supported by probable cause" or some other exception
to the warrant requirement applied.
The Kattaria court appears to ignore the Kyllo remand instruction
and concludes that a "warrant" as used in Kyllo could be based on the
Terry stop reasonable suspicion standard. But there's no basis to
think this: The Kyllo Court referred explicitly to a warrant, and the
word "warrant" is normally used to mean a probable cause warrant (as
the remand instruction suggests). 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 [3]Howard for the link.
References
1. http://www.ca8.uscourts.gov/opndir/07/10/063903P.pdf
2. http://www.law.cornell.edu/supct/html/99-8508.ZS.html
3. http://howappealing.law.com/100507.html#028695
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