[F]rom the perspective of a criminal defendant, a Supreme Court filled with justices like Antonin Scalia would not always be so bad because Justice Scalia's constitutional vision sometimes leads him to liberal results: consider Justice Scalia's work in Blakely, where he boldly asserts that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment," and Justice Scalia's work in Sullivan, where he argues that judges in some cases should not be permitted to affirm convictions by declaring certain constitutional violations harmless.
I would add Kyllo v. United States to that list: a case that really bothers me, since I can't tell any difference between the passive detection of heat from a home and the passive detection of drug odors from luggage or vehicles, which the Court has expressly upheld in Illinois v. Caballes (a case that really bothers Ken).
6 comments:
Perhaps because reasonable search and seizure includes in the analysis not only how an investigative technique does what it does, but what the finished product is?
They may both be detecting emanations, but only one of the two types of emanations has the potential to allow remarkably good photography through the walls of a home of people having sex.
uxNope. It doesn't work. Dogs can, and are, trained to detect many other emanations - legal and not legal: powder, gasoline, people, etc. They are also less accurate than the thermal device and can react to cats, food, unconcious signals from the trainer, etc.
Thermal imaging can see through walls? I doubt that.
As far as I know, heat imaging is just radiated infrared light, which is a lot like visible light and is blocked by most of the same kinds of materials that block visible light.
A heat image will show you which parts of the outside of a house are warmer than others. An occupied room might be warmer because of the heat given off by human beings, and some of that warmth may leak to the outside walls, but you won't get an image, you'll just get a heat bloom on the outside wall.
Apparently, a very strong heat bloom is often assumed to be gro-lights for marijuana. I hope police need more than that to get a warrant, otherwise they must be busting a lot of people with saunas, pottery kilns, terrariums for tropical animals, etc.
Now, if you point a thermal imager into a dark bedroom through a window, you might be able to see the occupants doing things they thought were hidden by darkness. Also, some partially transparent materials, like gauze curtains, or frosted glass, might be more transparent to far infrared light than to visible light.
Yes, police need more than simply the results of a thermal imagining device. In Kyllo, this was only one part of the overall probable cause police presented in order to obtain a search warrant for the house. I think they had other evidence as well, but since the Court found the thermal imaging unreasonable, the whole search warrant was tainted.
You are correct, however, that the imaging certainly is not a photograph and could not show anyone having sex or taking a bath; the heat thrown off by grow lamps is quantitatively different than those innocent activities.
I don't hold out much hope that Chief Justice Roberts will offer much to criminal defendants. His admittedly not extensive judicial record seems to greatly favor the executive and law enforcement. That said, I'm always open to being pleasantly surprised.
I have trouble understanding how people find them not distinguishable. Caballes was about dogs. Anyone who has ever lived with a dog can make short shrift of some of the claims about them made in the opinion ("In United States v. Place, we treated a canine sniff by a well-trained narcotics-detection dog as "sui generis" because it "discloses only the presence or absence of narcotics, a contraband item. ") (cites omitted).
To strike a different sort of comparison, confusing the nature of a machine that detects heat with a dog is similar to confusing an answering machine with a personal assistant. The answering machine is deterministic in behaviour. A personal assistant is not. Arguing that dogs are as deterministic as an answering machine (or a heat sensor), frankly, doesn't pass the sniff test.
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