to Pet. What is left in the affidavit, then, is the third allegation,2 which is hearsay many times over: Elliott heard it from a detective who heard it from another detective who heard it from an informant who overheard Kyllo's offer to sell drugs.

See Ciraolo, supra, at 215. Cf.

But see Rakas, supra, at 143-144, n. 12. See Oliver v. United States, 466 U. S. 170, 181. We took that to mean that, since the technologically enhanced emanations had to be the basis of inferences before anything inside the house could be known, the use of the emanations could not be a search. Because Kyllo satisfied the two prongs required to entitle him to a Franks hearing, the district court erred in refusing to consider his claim that the affiant recklessly omitted material information about his marital relationship. And, of course, the novel proposition that inference insulates a search is blatantly contrary to United States v. Karo, 468 U. S. 705 (1984), where the police "inferred" from the activation of a beeper that a certain can of ether was in the home.

The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath--a detail that many would consider "intimate"; and a much more sophisticated system might detect nothing more intimate than the fact that someone left a closet light on.

Rep. 807 (K. B.

The affiant's explanation was that he did not know how to read the rap sheet correctly.

), is simply inaccurate.

In other words, an enhancement pursuant to U.S.S.G. Reversing that approach would leave the homeowner at the mercy of advancing technology--including imaging technology that could discern all human activity in the home. App. DANNY LEE KYLLO, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 11, 2001] Justice Scalia delivered the opinion of the Court. As we observed in California v. Ciraolo, 476 U.S. 207, 213 (1986), “[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.”. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.

In particular, the court made no findings on the device's ability to detect the shapes of heat-emitting objects inside a home.

On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search.2, The Government maintains, however, that the thermal imaging must be upheld because it detected "only heat radiating from the external surface of the house," Brief for United States 26.

The interest in concealing the heat escaping from one's house pales in significance to the "the chief evil against which the wording of the Fourth Amendment is directed," the "physical entry of the home," United States v. United States Dist. On these facts, we held that it was not clearly erroneous for the district court to find that the false statements arose from negligence rather than recklessness. The final requirement of the Court's new rule, that the information "could not otherwise have been obtained without physical intrusion into a constitutionally protected area," ante, at 6 (internal quotation marks omitted), also extends too far as the Court applies it.

Second, the Court argues that the permissibility of "through-the-wall surveillance" cannot depend on a distinction between observing "intimate details" such as "the lady of the house [taking] her daily sauna and bath," and noticing only "the nonintimate rug on the vestibule floor" or "objects no smaller than 36 by 36 inches." While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no "significant" compromise of the homeowner's privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward. On remand the District Court found that the Agema 210 "is a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house"; it "did not show any people or activity within the walls of the structure"; "[t]he device used cannot penetrate walls or windows to reveal conversations or human activities"; and "[n]o intimate details of the home were observed." We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably relied" upon the privacy of the telephone booth. See Minnesota v. Carter, 525 U. S. 83, 104 (1998) (Breyer, J., concurring in judgment). (b) While it may be difficult to refine the Katz test in some instances, in the case of the search of a home's interior--the prototypical and hence most commonly litigated area of protected privacy--there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. 530 U. S. 1305 (2000). See United States v. Roberts, 747 F.2d 537, 546 n. 10 (9th Cir.1984). The dissent may not find that information particularly private or important, see post, at 4, 5, 10, but there is no basis for saying it is not information regarding the interior of the home. See United States v. Gillock, 886 F.2d 220, 223 (9th Cir.1989) (possessing gun in close proximity to drugs is sufficient for firearm enhancement).

The people in their houses, as well as the police, deserve more precision.6. Cf. The Court has crafted a rule that purports to deal with direct observations of the inside of the home, but the case before us merely involves indirect deductions from "off-the-wall" surveillance, that is, observations of the exterior of the home. Kyllo claims that the district court erred in refusing to hold a Franks hearing on the issue of whether Special Agent Elliott omitted statements about Kyllo's marital status with reckless disregard for the truth. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.3 The dissent's reliance on the distinction between "off-the-wall" and "through-the-wall" observation is entirely incompatible with the dissent's belief, which we discuss below, that thermal-imaging observations of the intimate details of a home are impermissible. First, the Court suggests that its rule is compelled by our holding in Katz, because in that case, as in this, the surveillance consisted of nothing more than the monitoring of waves emanating from a private area into the public domain. See Dow Chemical Co. v. United States, 476 U. S. 227, 234-235, 239 (1986). The imager converts radiation into images based on relative warmth--black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause–and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced. It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. See id., at 361. ), is simply inaccurate. The illegality in that case was "the monitoring of a beeper in a private residence" to obtain information that "could not have been obtained by observation from outside," id., at 714-715, rather than any thought processes that flowed from such monitoring. The Ninth Circuit ultimately affirmed, upholding the thermal imaging on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home.

In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States, 389 U. S. 347 (1967).

A check with DMV revealed that Danny Kyllo and Luanne Kyllo had a 1972 Datsun ... which was registered at [Danny Kyllo's address]. See id. 173, 188; Carter, supra, at 97 (Scalia, J., concurring). That is the principle implicated here.

1996); Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 S. Ct. Rev. For the first time in its history, the Court assumes that an inference can amount to a Fourth Amendment violation.

The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy. 37 F.3d 526, Docket Number: ", The use of the latter device would be constitutional given Smith v. Maryland, 442 U. S. 735, 741 (1979), which upheld the use of pen registers to record numbers dialed on a phone because, unlike "the listening device employed in Katz ... pen registers do not acquire the contents of communications.".

Appeal from the United States District Court for the District of Oregon.

A bathtub is a less private area when the plumber is present even if his back is turned"). The Government cites our statement in California v. Ciraolo, 476 U.S. 207 (1986), noting apparent agreement with the State of California that aerial surveillance of a house’s curtilage could become “ ‘invasive’ ” if “ ‘modern technology’ ” revealed “ ‘those intimate associations, objects or activities otherwise imperceptible to police or fellow citizens.’ ” Id., at 215, n. 3 (quoting brief of the State of California). Those observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of petitioner's home but did not invade any constitutionally protected interest in privacy.1 Moreover, I believe that the supposedly "bright-line" rule the Court has created in response to its concerns about future technological developments is unnecessary, unwise, and inconsistent with the Fourth Amendment. Kyllo requested that this issue be considered in the district court's Franks hearing, but the court refused. Cf.

The same should hold for the interior heat of the home if only a person present in the home could discern the heat. Daily Op.

As I have explained, however, the process of drawing inferences from data in the public domain should not be characterized as a search.
A Department of the Interior agent, suspicious that Danny Kyllo was growing marijuana, used a thermal-imaging device to scan his triplex. The gain and contrast settings have been increased in order to make the walls and roof of the structure appear hotter than what it actually is. Furthermore, the fact that Elliott relied on information received from another law enforcement officer does not ipso facto mean that Elliott's omissions were not reckless. He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea.

For example, our analysis will be affected by whether, on the one extreme, this device can detect sexual activity in the bedroom, as Kyllo's expert suggests, or, at the other extreme, whether it can only detect hot spots where heat is escaping from a structure.3. This Court has approved warrantless visual surveillance of a home, see California v. Ciraolo, 476 U. S. 207, 213, ruling that visual observation is no "search" at all, see Dow Chemical Co. v. United States, 476 U. S. 227, 234-235, 239.

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