Dead On Arrival - Kyllo v. United States, 533 U.S. 27 (2001)

Privacy in the Modern World, Kyllo v. U.S. - Dead?

This is actually something I was thinking about in law school, circa 2007 when Kyllo was still fresh. First, the case remains good law, and I am not arguing otherwise. The point of this brief piece is more about the speed of technological advancements.

First, some background. The case, which came from Oregon, involved the use of thermal imaging cameras by law enforcement. Police in Florence used thermal imaging cameras (oddly, not made by Oregon-based FLIR Systems) to locate a pot grow inside a house. The question became, was this an illegal search. The Court said yes, as FLIR-type cameras were not common in 1992 when the search was done. Basically, unless the technology is wide-spread, law enforcement cannot use it to spy, as citizens have a reasonable expectation of privacy. This is a really simplistic summary, but you should get the point, and this piece is not really about the legal aspects of the case.

By Black Hills Thermal Imaging via Wikimedia Commons

Instead of discussing the legal aspects, I want to focus on the application of the holding today. As in, I think Kyllo is dead. In fact, it was dead on arrival.

While thermal imaging was not common in 1992, by 2001 when the case was decided, such cameras had become fairly common. Skip ahead 14 years, and these types of cameras are everywhere from some cars to iPhones.

So, even under the Court's holding, a court would be hard pressed to retain a prohibition of the use of thermal cameras by law enforcement. Thus, if there was a similar case, it would now be a legal search as the technology is now everywhere, and there is no expectation of privacy from thermal cameras.