Kyllo
United States v. Kyllo
Opinion
Lead Opinion
Merhige, J.
Opinion by Judge MERHIGE; Dissent by Judge HAWKINS.
Based on the readings from a thermal imager, the observation of unusually high power usage at Defendant-Appellant Danny Lee Kyllo’s home, information provided by an informant, and other circumstantial evidence, federal law enforcement officers obtained a warrant to search the premises of Danny Lee Kyllo (“Kyllo”). The officers executed the warrant and discovered an indoor marijuana growing operation, weapons, and drug paraphernalia. After being indicted, Kyllo moved to suppress all the evidence obtained in the search of his residence. The district court denied his motion. We vacated that conviction and remanded for further proceedings. On remand, the district court again denied Kyllo’s motion to suppress. This appeal presents an issue of first impression in this circuit, namely whether thermal imaging scanning is a search within the meaning of the Fourth Amendment. We hold that thermal imaging scanning is a search within the meaning of the Fourth Amendment.
I. Factual Background
While investigating a suspected marijuana growing and distribution operation, United States Bureau of Land Management Agent William Elliott…
Dissenting Opinion
Hawkins, J.
dissenting:
My colleagues have made the best case imaginable for the proposition that the use of a thermal imaging device constitutes a search within the meaning of the Fourth Amendment. I am not persuaded.
A search, whether of a home, a car, or a body, is, at bottom, an intrusion; a non-consensual invasion of protected space. Whatever its Star Wars capabilities, the thermal imaging device employed here intruded into nothing. Rather, it measured the heat emanating from and on the outside of a house. Nor did law enforcement randomly choose its choice of targets: the agents employing the device were alerted to Kyllo’s house because of its extraordinary use of electricity, a use consistent with indoor marijuana cultivation.
I would follow the lead of our sister circuits and hold that the use of thermal imaging technology does not constitute a search under contemporary Fourth Amendment standards.