Legal Digest

Kyllo v.United States

Technology Versus Individual Privacy
By THOMAS D. COLBRIDGE, J.D.

Few issues evoke as much passionate debate as police use of new technologies to combat crime. As noted in a previous article regarding thermal imaging, 1 the introduction of any advanced crime-fighting device into law enforcement’s arsenal of weapons raises public concern about the erosion of constitutional rights. The specter of “Big Brother” looms large in the public mind. The debate is an honest one, raising basic issues regarding the proper balance between the personal privacy of individuals and the government’s obligation to enforce the law and ensure public safety. Recently, the U.S. Supreme Court decided another skirmish in this ongoing philosophical battle in the case of Kyllo v. United States,2 involving police use of thermal imaging.

This article discusses the Court’s holding in the Kyllo case and its restrictions on police use of thermal-imaging devices.3 The article also explores major themes developed by federal courts when assessing the impact of new police technologies on traditional Fourth Amendment search law.

FOURTH AMENDMENT SEARCH
The Fourth Amendment to the Constitution of the United States prohibits unreasonable searches.4 The drafters of the Constitution never defined the concepts of “unreasonable” and “search” as used in the Fourth Amendment. The Supreme Court struggled with these constitutional definitions for many years. Finally, in 1967 in the famous case of Katz v. United States,5 the Supreme Court formulated the modern definition of a search for purposes of the Constitution. The Court said that a Fourth
Amendment search occurs whenever the government intrudes into an individual’s reasonable expectation of privacy.6 Supreme Court Justice Harlan, in a concurring opinion, established a useful twoprong test to determine if a reasonable expectation of privacy exists: 1) Do individuals have an actual (subjective) expectation that their activities will remain private? and 2) Is their subjective expectation of