CONTACT: MELVIN O. SHAW
100 Old Public Library
Iowa City IA 52242
(319) 384-0010; fax (319) 384-0024
Release: Oct. 12, 2000
Police use of thermal imaging raises Fourth Amendment questions
IOWA CITY, Iowa -- University of Iowa College of Law Criminal Law Professor
James Tomkovicz says the use of thermal imaging devices -- employed in the
government's war on
drugs -- infringes on the public's constitutionally protected Fourth Amendment
right to privacy.
Tomkovicz is writing a friend of the court brief for the National Association
of Criminal Defense Lawyers (NACDL) on behalf of defendant Danny Kyllo in
"Kyllo v. United States." The Supreme Court decided to review the
novel practice of thermal imaging by granting a writ of certiorari on Sept.
26. The Court will decide whether this particular police practice is regulated
at all by the Fourth Amendment guarantee against unreasonable searches and
Kyllo was arrested in 1992 after readings from a thermal imager, aimed at
his home from a police officer's car, showed unusually high heat emissions.
A federal law enforcement agent used the information disclosed by the thermal
imager along with facts furnished by an informant and other circumstantial
evidence to support an application for a warrant to search Kyllo's Oregon
home. A judge issued the search warrant and officers discovered an indoor
marijuana growing operation.
Kyllo moved to suppress all the evidence obtained in the search of his residence,
claiming, among other things, that the use of the thermal imager on his home
was an "unreasonable search." The district court denied this motion,
ruling that a thermal scan of a home is not a search under the Fourth Amendment.
Ultimately, the federal Court of Appeals for the Ninth Circuit affirmed this
ruling, holding that the Fourth Amendment does not govern thermal imaging.
Kyllo's attorney petitioned the Supreme Court for review, claiming that the
lower court had erred because thermal imager scanning should be considered
a search within the meaning of the Fourth Amendment.
"Frequently, thermal imaging devices are aimed at homes from airplanes,
but in Kyllo's case, the officer used it from his car. If a home is emitting
more heat than others nearby, police officers may infer that the excess heat
is being generated by 'grow lights' used in the cultivation of marijuana.
The excess heat emissions are used by the government as part of its showing
of probable cause to search the home for contraband," says Tomkovicz,
who recently wrote the friend of the court brief for the NACDL in "State
of Florida v. J.L." In that case, the Supreme Court ruled unanimously
last March that in the absence of adequate corroboration, stops and frisks
based on anonymous tips are unconstitutional.
For more information about Kyllo v. United States, No. 99-8508, and Tomkovicz's
involvement, contact him at (319) 335-9100.