Kyllo v. United States – Oral Argument – February 20, 2001

Media for Kyllo v. United States

Audio Transcription for Opinion Announcement – June 11, 2001 in Kyllo v. United States

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William H. Rehnquist:

We’ll hear argument now on number 99-8508, Danny Lee Kyllo versus the United States.

Mr. Lerner.

Kenneth Lerner:

Mr. Chief Justice, may it please the Court, this case is about thermal imaging of a home without a warrant, and whether that constitutes an impermissible search under the Fourth Amendment.

Our home is the basic refuge for all citizens.

It’s where we have our greatest expectations of privacy, where we are free to let down our guard, and where we should have our greatest feeling that we are free from government spying.

Unreasonable and unwarranted searching of the home is the chief evil that the Fourth Amendment protects us against, and it has a specific… the home itself has a specific mention in the Constitution, and as a bedrock principle, the home is a place where we have our most heightened expectations of privacy.

Sandra Day O’Connor:

Mr. Lerner, I thought the district court here made some findings in that regard.

Kenneth Lerner:

Yes.

Sandra Day O’Connor:

To the effect that the thermal imaging device cannot and did not show any people or activity within the walls of the structure, and the device cannot penetrate walls or windows to reveal conversations or human activities.

It recorded only the heat being emitted from the home.

Now, I guess you accept those findings, do you not?

Kenneth Lerner:

Well, I accept the finding, Your Honor, that the thermal imager is capturing emissions as they are coming from the wall.

Sandra Day O’Connor:

Well, let me ask you this.

Do we, reviewing the judgment here, have to accept those findings as correct?

Kenneth Lerner:

Well, I think some of those findings are mixed questions of fact and law, such as what is activity and what activity does the Constitution protect.

I don’t think those are findings that the Court has to accept, but I am perfectly comfortable with the finding that the thermal imager was capturing the information on the outside of the home.

However, I think that is an incomplete view of thermal imaging because there would be no image at all if it weren’t for the thermodynamic process.

There must be a constant heat source to heat up the wall so that you will see it.

Therefore there is something behind the wall that provides and radiates heat to the wall, the wall reradiates it out, but if it’s not constant, if it’s not a dynamic process, you will not see anything, and therefore it is the purpose of the thermal imager and the function of the thermal imager is to detect what is beneath the surface by scanning that surface.

David H. Souter:

Well, don’t we have at least a lodging here that indicates that the thermal imager will, in fact, or can, in fact, produce images of what is happening of objects and what is happening to those objects inside the walls?

Kenneth Lerner:

Yes.

David H. Souter:

All right.

What’s the status of the lodging, what are we supposed to make of it?

Kenneth Lerner:

Well, I think the Court should look at, first of all, the videotape that’s been lodged, and a few things you should know about the videotape.

First of all, it is not an original exhibit.

The original exhibit has been misplaced or lost in some way, but you have a third generation copy of the original thermal image that was taken at the time in front of Mr. Kyllo’s house.

David H. Souter:

Was the original of that introduced in evidence?

Kenneth Lerner:

Yes, the original was introduced in evidence.

So I don’t know exactly–

David H. Souter:

How could the judge make the finding that he made if he accepted the original item of evidence, assuming that it is substantially identical to what we have lodged with us, because one of the sights that appears from the videotape is the sight of individuals moving inside a house, I believe with the shades drawn.

Kenneth Lerner:

–Well, that is one of the exhibits that we have lodged, Exhibit 107 and 108, do show an individual inside behind glass, but there is nothing with the shades drawn.

That was… if that was ever mentioned–

David H. Souter:

Was it supposedly taken in darkness?

Kenneth Lerner:

–The thermal imaging?

David H. Souter:

Well, tell me, was the… I looked at the lodged videotape, and it showed individuals moving, or an individual moving inside the building, inside an apartment.

Was that image made solely with the infrared process?

Kenneth Lerner:

That’s right.

David H. Souter:

So that in total darkness of visible light–

Kenneth Lerner:

That’s right.

David H. Souter:

–that image could have been made by the thermal imaging device?

Kenneth Lerner:

That’s correct.

That is correct.

And that was a demonstration that our expert provided to the court.

William H. Rehnquist:

The district court had that before it when it made these findings?

Kenneth Lerner:

Yes, it did.

William H. Rehnquist:

So presumably to the extent the findings are inconsistent with that exhibit, the district court did not give full accord to it?

Kenneth Lerner:

That’s correct, Your Honor, and I would like to say that I think Judge Frey at the district court level, was trying to determine what this thermal imager would do and what it did in this case, and she did not–

Ruth Bader Ginsburg:

Mr. Lerner, would you qualify–

William H. Rehnquist:

–I think he is answering my question.

Ruth Bader Ginsburg:

I’m sorry.

Kenneth Lerner:

–And so there is… apparently that’s what the limit of her factual holding is that in this particular case, it did not show any person or activity, but she did not say that it’s not capable of showing what our expert did show, that it can show people inside of windows.

Ruth Bader Ginsburg:

Now may I qualify that what you’re talking about now, the one that shows people, was not the one that was involved in this very case?

Kenneth Lerner:

That’s right.

Ruth Bader Ginsburg:

It was a different one?

Kenneth Lerner:

That’s right.

Ruth Bader Ginsburg:

So I think there is some confusion on that point.

The one in this case didn’t show any people or didn’t show any–

Kenneth Lerner:

That’s right.

What you’ll see on Government’s Exhibit Number 2, which is lodged with this Court, is a very slanted image, almost as if Picasso was taking a video, and it’s an indistinct image of the home, but you can clearly see the home, and what I would like the Court to look for is towards the end of the videotape, as it shows the back view of the home, you can see three distinct circles of light along the very top of the roof, which is the heat from heat lamps coming out of the roof, and that is what the thermal imager was capturing in this particular case.

William H. Rehnquist:

–Well, Mr. Lerner, you say that in this particular situation the thermal imaging did only so much, but we shouldn’t just look at that we should look at what it’s capable of.

Kenneth Lerner:

Absolutely.

William H. Rehnquist:

I don’t think you’re correct in that.

I think in a Fourth Amendment case we decide what was actually done, not what something was capable of doing.

Kenneth Lerner:

Well, you know, you’re the Supreme Court, so you will do what I assume you will do, but I think that you will probably have then a series of cases every time a thermal imager is used on a different wall or on a window or the newest version of the technology comes up, and I think it really makes sense, unless the Court wants to revisit this every few years, to look at what the capability of the science is.

Antonin Scalia:

Well, what about the proposition that so long as it is not showing anything that couldn’t have been discovered without the visual imager, in this case when you’re talking about how warm the roof is, I assume that if the police had waited for a good snowfall, they could have found out exactly what they found out through this thermal imaging.

Kenneth Lerner:

Well, I–

Antonin Scalia:

I mean, the snow would have melted on other roofs, it would not have melted… I mean, it would have melted in these portions, it wouldn’t have melted elsewhere.

Kenneth Lerner:

–Well, two things I would like to say about that Justice Scalia.

First of all, there was no snow on Mr. Kyllo’s roof, and we don’t dispute that.

If there had been snow and it had been melting, they could have seen that, but there was no snow, and it does not snow very frequently in Lawrence, Oregon, because it’s on the Oregon coast, and it’s not something that normally would be expected, and so you would not be able to see anything from a normal vantage point that the public would maintain on a regular basis.

Sandra Day O’Connor:

Well, have we upheld, for example, the use of night vision glasses by law enforcement personnel to see things that they couldn’t see with natural vision–

Kenneth Lerner:

No, you have not.

Sandra Day O’Connor:

–We’ve not?

Kenneth Lerner:

No.

Sandra Day O’Connor:

Other courts have?

Kenneth Lerner:

Some courts have, Your Honor, yes.

Anthony M. Kennedy:

But if we did, if we had such a case under your view, we’d have to ask what potentially they could see, and getting back to the Chief Justice’s question, I just don’t know if there’s authority for that.

Suppose we had a case and we stipulate that it’s lawful for the police to listen with an electronic, enhanced listening device to a conversation that takes place on the street, let’s assume that’s lawful.

We would judge that under its own terms.

We wouldn’t say, oh, well, now, this could potentially have been… had its listening power turned up so it could hear what was going on inside.

We don’t decide cases that way, do we?

Kenneth Lerner:

Well, I don’t know if you do or you don’t.

It seems like you would want to look exactly at what happened in this case and what the technology does and can do because this is a new technology and it supersedes the human senses.

Anthony M. Kennedy:

Well, on that point, it seems to me you take somewhat inconsistent positions.

On the one hand you said this could pinpoint with great accuracy what happens, and then in the next couple pages you say, well, now, these images can be manipulated by the police.

I mean, which is it?

Is this thing accurate or not accurate?

Those seem to me like inconsistent–

Kenneth Lerner:

Well, that’s not the question that’s before this Court, but in the lower court we did claim that it was not accurate and should not be used in search warrants.

It’s not accurate because it can be manipulated, and there was no showing that it was a reliable device.

Anthony M. Kennedy:

–But my point is, you do make this argument to us.

You say, number one, it’s an unacceptable invasion of privacy because it’s so accurate.

Then number two you say, well this is very dangerous because it can be manipulated, it’s so vague.

It seems to me those are inconsistent.

Kenneth Lerner:

This particular machine is very subject to manipulation, but thermal imaging itself is not.

It’s based upon the thermodynamic process, and on scientific principles.

We were concerned about this particular machine and the image that it produces, and that was our complaint.

But it still does what all thermal imagers do, which is pinpoint the heat at a particular place coming from the inside of a house, from a private place.

Antonin Scalia:

It didn’t matter it came from a particular place.

I mean, what was the significant information that the police derived was that there was an extraordinary amount of heat being generated in this house, right?

Kenneth Lerner:

Well, it wasn’t extraordinary amount of heat in the house.

It was the extraordinary amount of heat in very particular locations of the house.

Antonin Scalia:

Well, would it have mattered whether it was in the cellar or in the roof?

I mean–

Kenneth Lerner:

It may or may not have.

Antonin Scalia:

–Well, it seems to me, would it have been a violation for the police… I think they did use in the search warrant here the fact that the utility bills for this home were much higher than surrounding homes.

Is that a violation of the privacy of the home, the police finding out that these people are using an extraordinary amount of electricity?

Kenneth Lerner:

We haven’t raised that as an issue, Your Honor, and I think this Court’s holdings in Miller and Smith versus Maryland seem to say that if someone has records that are being held by a third party, they don’t have an expectation of privacy that those records might not be searched, so the fact that they were able to subpoena and obtain Mr. Kyllo’s energy records I don’t think is a matter that we’ve raised as–

John Paul Stevens:

May I ask you if you think the… that that information in those records would have been adequate probable cause to get a warrant to use the device in this case?

Kenneth Lerner:

–We don’t believe that it would, Your Honor, no.

John Paul Stevens:

So that really the question before us is not just procedural, but whether or not they can use these devices at all?

Kenneth Lerner:

That’s right.

Well, whether they can use the devices without a warrant on the home.

Ruth Bader Ginsburg:

And would the–

John Paul Stevens:

–And if they had enough probable cause to use the device, they probably wouldn’t need the device?

Kenneth Lerner:

Well, that’s absolutely true, and I think that’s the same argument that was used in Karo, that if we need probable cause to use this to monitor the beeper, then we’ll effectively use this.

Antonin Scalia:

Let’s go in the house and look.

Kenneth Lerner:

So the court said that’s not a good enough reason.

Stephen G. Breyer:

Well, could it vary?

How fixed is that in the precedents?

Stephen G. Breyer:

I mean, could you have enough cause to warrant a beeper… warrant a thermal imager, which is far less intrusive than going into the house?

Or do you think it’s absolutely fixed that you either have probable cause to rummage through the bedroom or you can’t do anything?

Kenneth Lerner:

I think anytime that the Government is seeking to capture information from a private place like the home, and they cannot do it with their own unaided human senses, then they may not use technology to do the same thing.

Stephen G. Breyer:

Suppose your choice was exactly that, that you… when faced with that dilemma, the court holds that you can use it without any warrant, and how would you prefer as a fallback, you need at least a warrant but less cause than to rummage in the home itself or is that so fixed in the law there is really just the absolute dichotomy?

Kenneth Lerner:

Well, I think the Court has repeated so many times that to enter the home or to search the home that you need a warrant–

Stephen G. Breyer:

Well, I know that, and what you’d have to say is it’s probable cause not to enter the home.

It’s probable cause to get an imager.

Kenneth Lerner:

–Well, I think that’s a very dangerous road to go when we start talking about imagers and technology because what it’s capturing really is molecular information that migrates through our walls and therefore if we are now saying that we can capture that kind of information without a warrant, we can reduce our whole world to that type of wave and molecule, and our walls mean nothing because our walls cannot contain that kind of information.

Ruth Bader Ginsburg:

Mr. Lerner, could you just explain to me what this thermal imaging revealed that was not revealed by the utility records which you say under our precedent it was permissible for the police to obtain?

Kenneth Lerner:

Well, utility records give you generalized information about someone’s electrical use, and we actually did have quite a complete hearing about those records and heard from utility industry people, and people’s energy bills vary quite dramatically depending, frankly, on how many women live in the home versus men, how many times you do laundry, who is taking showers, things that you plug in.

It doesn’t necessarily mean that you’re using heat lamps or that you’re growing marijuana.

So it’s too generalized type of information to really persuade a magistrate that that means there’s marijuana growing.

Antonin Scalia:

Mr. Lerner–

Kenneth Lerner:

In this case–

Antonin Scalia:

–you say that you can’t use… look into the home with anything other than the unaided senses.

Is it unconstitutional to use binoculars to look into a window that’s left unclosed without a curtain?

Is that what our case law says?

I don’t think it does–

Kenneth Lerner:

–The Court hasn’t really addressed that point yet, so that’s going to be a very difficult question when it comes up.

David H. Souter:

–But you’re saying we ought to address it right now because that ought to be our standard of what is reasonable expectation.

Wasn’t that your argument?

Kenneth Lerner:

My standard is if it is unavailable to the unaided eye, simply because there is a window and you can see deep inside that window that no one else in the normal course could have seen with some high powered technology–

Antonin Scalia:

But eyeglasses are okay?

Kenneth Lerner:

–Eyeglasses are fine.

Antonin Scalia:

Okay.

But not binoculars?

Kenneth Lerner:

Well, eyeglasses give you normal vision, and they are an accepted way of repairing disabled vision–

Antonin Scalia:

Why should–

Kenneth Lerner:

–but when you start to use technology, that takes us beyond the human senses, now the Court has said–

Sandra Day O’Connor:

–How about–

Antonin Scalia:

–Why is that relevant?

David H. Souter:

I mean, you’re saying some things that take us beyond the human senses are okay, eyeglasses, binoculars, maybe not.

But things that are sort of abnormal in use cross the line.

Why should the line be drawn there?

What’s the… what’s your reasoning behind that?

Kenneth Lerner:

–Well, the line is drawn there because the privacy is predicated upon what someone can knowingly or unknowingly expose, and once we’re in the level of technology, people have no way of knowing when they are voluntarily exposing something.

Yes, we could all live in rooms that totally close the windows off–

David H. Souter:

So you’re saying that reasonable expectation is in part based on fact, what do you, in fact, expect, and that informs, should inform the standard of reasonable expectation, is that the nub of what you’re saying?

Kenneth Lerner:

–Yes.

It is partly what we all expect.

Sandra Day O’Connor:

What about a dog sniff, how about a dog sniff?

Kenneth Lerner:

How about a dog sniff?

Sandra Day O’Connor:

Yeah, we’ve used dog sniffs to detect something that the human nose doesn’t detect, haven’t we?

So under your test that’s out, too, but we’ve upheld some of those.

Kenneth Lerner:

Right.

The Court… well, I’m not going as far as the Court did in Place because Place was limited to narcotics and sensing only, very specifically contraband in a very public place and a very transitory place, and I think that the Court has been careful to limit Place to that circumstance.

We’re not saying that you can’t use technology out in the world, but we’re saying that the home has such a heightened expectation of privacy, to use technology to pry into our homes is a very, very different point, and the Court has not addressed whether we can just have police dogs running around people’s homes yet.

Antonin Scalia:

How about a policeman with 10/10 vision, is that okay?

Kenneth Lerner:

With 10/10 vision?

Antonin Scalia:

Yeah, I guess that’s better than 20/20, I don’t know.

I’m not–

Ruth Bader Ginsburg:

–Mr. Lerner, you were explaining to me, and I haven’t quite grasped it, why the utility records wouldn’t tell you the same thing.

Will the thermal imaging tell you that it’s not women taking showers?

Kenneth Lerner:

The thermal imaging will give you a more specific impression such as here it showed three distinct, evenly spaced circles of light at the peak of the roof from which they could conclude that this is very similar to other marijuana growing that they have seen.

They did not have any other information about Mr. Kyllo, no one had been inside his home, there was no tip that he was growing marijuana, so sometimes the utility records are enough when you have a specific tip about what someone might be doing in their home, but when you lack that type of specificity, the normal heat and electrical records don’t really tell you whether the high electricity is because they’re growing marijuana or if it’s because they take a lot of showers and do a lot of laundry, have a lot of appliances or an inefficient heating system or anything, taking saunas or anything else.

Ruth Bader Ginsburg:

And the imaging will tell you that?

Kenneth Lerner:

The imaging will give you specific heat impressions from various places in the home, coming through the wall, telling you what’s on the other side of the wall.

John Paul Stevens:

May I ask to what extent your theory depends on the sophisticated nature of the equipment?

Supposing the police had rented the house next door, and they leaned out the second story window with a long pole with a thermometer on it, they could kind of track the wall and find out what part was hot and what wasn’t, would that violate the Fourth Amendment?

Kenneth Lerner:

Well, that would be a different question than the use of technology.

John Paul Stevens:

Why would that be different?

Kenneth Lerner:

Because they would be intruding on the curtilage, where they physically invading and touching the wall, I’m not sure that they’re–

John Paul Stevens:

Well, say the houses were only six feet apart and they could stay on their side of the boundary line.

Kenneth Lerner:

–I’d say then that is something that would be permissible because it’s something that is akin to our normal human senses, that they could determine how hot the wall was by feeling it.

John Paul Stevens:

No, not feeling it.

They had to use a thermometer, and they had to reach out parallel to the walls of the houses to do it.

They’re using some kind of a magnifying equipment.

Kenneth Lerner:

Well, obviously I don’t think that we would prohibit things like thermometers or watches or things that we typically use in our daily lives.

Stephen G. Breyer:

But a drug sniffing dog you couldn’t?

I mean, if you brought the drug sniffing dog up to the window and it has a fit?

Kenneth Lerner:

Right.

I think that–

Stephen G. Breyer:

In your view, you couldn’t do that?

Kenneth Lerner:

–that would be a really different question, yes.

Antonin Scalia:

Why don’t your reasonable expectations of privacy include technology?

Why don’t your reasonable expectations include the fact that you know there are such things as binoculars, so that even if your house is a long distance away from where anybody else can stand, you pull your curtains if you want privacy because you know people have binoculars?

Kenneth Lerner:

Right.

Antonin Scalia:

And so also you know there are things such as thermal image, and so if you’re really concerned about that degree of privacy, I’m sure there are means of preventing the heat escape from the house, and therefore preventing that technology from being used.

Why do we have to assume that we live in a world without technology?

Kenneth Lerner:

We don’t have to assume that we do, Your Honor, but technology has the ability to penetrate into our private lives, and that’s the problem.

Antonin Scalia:

Yes, it does and we have the ability to protect our private lives as well if we really have expectations of privacy.

Kenneth Lerner:

So that what I’m… I guess our position is that the burden really is improperly placed on the citizen to anticipate what type of technology the Government may come up with, and perhaps you’re correct that if it’s sufficiently sophisticated rather than something that’s very common and ordinary, then it shouldn’t be the burden of the citizen to anticipate what they can’t particularly know or may not know, and then take safeguarding measures.

David H. Souter:

Well, are you saying, in effect that if thermal imaging becomes very common and every school kid has a $5 thermal imager, that at that point it really would be unreasonable not to expect that the Government was going to use to it figure out what’s going on in the house?

Kenneth Lerner:

I’m not saying that because I think once we–

David H. Souter:

What’s the effect of sophistication?

Kenneth Lerner:

–Well, at this point the effect of sophistication is that it is not commonly used by normal people in their every day life.

David H. Souter:

Yeah, but in my example, the school kids have all got thermal imagers.

Does that change the Fourth Amendment analysis on your theory?

Kenneth Lerner:

I would hope not, Your Honor.

Stephen G. Breyer:

Why not?

Stephen G. Breyer:

I mean, people would at that world, which is an odd world, all the time be expecting everybody under the sun to know whether they are taking baths or not.

Well, if you expect everybody under the sun to do it, you don’t have an expectation of privacy, just as is the case with binoculars.

So why doesn’t that make the difference?

Kenneth Lerner:

Well, we can now… we have the ability to wiretap everybody’s telephone.

Stephen G. Breyer:

Yeah, yeah, but you don’t expect–

Kenneth Lerner:

But we don’t do that.

Stephen G. Breyer:

–your phone to be wiretapped.

Kenneth Lerner:

That’s right.

That’s because the Court has said that.

Stephen G. Breyer:

But you do expect people to walk around with binoculars.

Kenneth Lerner:

Right.

Stephen G. Breyer:

So why doesn’t that make the difference?

Kenneth Lerner:

Well, the only difference between the wiretap issue is because this Court has said you can’t do that.

We have privacy in our conversations.

Stephen G. Breyer:

Well, isn’t there another difference other than what the Court said?

We don’t expect everybody in the sun to be… under the sun… to be tapping our phones.

Kenneth Lerner:

And I agree with that.

Stephen G. Breyer:

We do expect quite often people to walk around with binoculars.

Kenneth Lerner:

We may expect people may walk around with binoculars, but that does depend on the vantage point and where a person is located as well.

But we don’t expect them to walk around with thermal imagers.

When they become so prevalent as Justice Souter has suggested, then it may present the issue of wiretapping, where the Court needs to say, we don’t expect or even if we do expect we do not want people to be intruding into our homes and finding out things that heat can reveal about our private activities.

David H. Souter:

Okay, then if that’s the case, then the criterion of sophistication is not sufficient because if that’s the case, then when thermal images are no longer regarded as sophisticated, when every kid has one, you are saying we still may, in fact, find that there is a Fourth Amendment value that is offended by admitting this stuff into evidence.

So I think–

Kenneth Lerner:

That’s right.

David H. Souter:

–you’re getting… I think you’re dropping your sophistication point as being determinative.

It may be helpful here, but if pushed you’re saying, no, that is not really what it turns on.

Kenneth Lerner:

That is not the value, that’s correct, and unfortunately we do have already technology that the Court has already approved, such as field glasses and flashlights and illumination devices and things of that nature without analyzing it under Katz or the vantage point or the normalcy of people using it, and that’s what Justice Breyer’s bringing up.

I do think that each of those situations would require the Court to evaluate.

William H. Rehnquist:

Well, do you think a flashlight comes under the head of something that’s totally unexpected?

Supposing the police shine a flashlight into some people who were hiding in a dark corner, is that a search because they had a right to keep the corner dark?

Kenneth Lerner:

A dark corner of someone’s home, Your Honor?

William H. Rehnquist:

No, suppose outside someone’s home.

Kenneth Lerner:

We’re not saying that they would have any expectation of privacy outside, in hiding.

William H. Rehnquist:

Well, how would a flashlight… you mentioned the term flashlight.

How does that fit into your argument?

Kenneth Lerner:

Well, it is a technological device that provides illumination that aids the human senses.

The Court has said there can be some aids to the human senses such as that.

William H. Rehnquist:

Well, there is a Brandeis opinion from the ’20s that says you can use a bright light, I think.

Kenneth Lerner:

Yes, there is the Lee case, Your Honor, in ’27 did say that flashlight, search lights, actually it was on a boat, and it provided illumination of boats already out in the public view.

This Court said in Texas versus Brown you can use a flashlight to inspect a car, which is also in public view and there’s a lesser expectation of–

Antonin Scalia:

But you can’t shine it into the window of a house?

Kenneth Lerner:

–The Court hasn’t said that you can shine it into the window of a house.

Antonin Scalia:

And you think you can’t?

Kenneth Lerner:

I think that it would depend on the vantage point and what the person has knowingly exposed and things of that nature.

Antonin Scalia:

Well, no… what do you mean, it would depend on the vantage… a policeman sees an open window, he suspects that this house has contraband in it, the window is left uncurtained, he shines a flashlight inside and sees stolen goods.

Kenneth Lerner:

Well, I don’t think that an officer can just walk up to anyone’s home and start shining a flashlight into their home without a warrant.

The Court hasn’t answered that question.

David H. Souter:

Does it have anything to do with the range of normal and expected uses of the device?

What I’m thinking of is flashlights are used for innocent purposes all the time.

Thermal imagers I’m not so sure of.

We saw in the lodging that thermal images may be used for the totally benign purpose of deciding how well insulated a house should be so that people can go around and plug up leaks, but I suppose outside of the specialized use of thermal engineering in building construction and design, I don’t know that thermal imaging does have much benign use, does it?

Is it… in other words, is its real attraction the fact that it can, in effect, allow for an inference about what is going on in a very private place with the exception of the sort of the heat loss surveys?

Kenneth Lerner:

Yes.

David H. Souter:

That is its only principal use outside of heat loss surveys, the penetration of privacy?

Kenneth Lerner:

It is used in a number of industrial processes, Your Honor.

For instance, where electrical circuits may be burning too hot and indicate there might be a short circuit behind metal, they would use a thermal imager.

David H. Souter:

But outside of that kind of use–

Kenneth Lerner:

Yes.

David H. Souter:

–are there other sort of benign uses that are neutral so far as law enforcement might be concerned?

Kenneth Lerner:

Well, our expert said that the number of uses are probably unlimited.

Kenneth Lerner:

It just depends on the human imagination of what you can use… gather from heat.

But I think that they are mostly in law enforcement use to penetrate the home.

David H. Souter:

In any case, that’s not a criterion for distinguishing between thermal imaging and flashlights.

Kenneth Lerner:

If I’m… I’d like to reserve the rest of my time unless there’s another question.

William H. Rehnquist:

Very well, Mr. Lerner.

Mr. Dreeben, we will hear from you.

Michael R. Dreeben:

Mr. Chief Justice, and may it please the Court, thermal imaging senses heat gradients on the exterior of a surface, in this case the structure was a house.

It does not penetrate the walls of the house, it does not reveal particular objects or activities inside of a house, and the record in this case and the findings that the district court made indicate that it is not capable of doing so through walls of a house.

The question in this case is whether individuals have a reasonable and justifiable expectation of privacy in the heat that’s on the exterior surface of their walls.

We believe that they do not.

Heat loss is an inevitable feature of heat in a structure.

If a structure is generating heat, it will lose that heat, and everyone knows that.

That’s why there is an insulation industry.

In addition, heat loss is frequently observable without the aid of technology, as, for example, when snow melts on a roof.

David H. Souter:

But, you know, all of that could have been said but for a change of senses about Katz.

What the bug in Katz was measuring was the effective sound on the exterior wall of the phone booth.

When people talk in phone booths, frequently people can stand outside and hear what’s going on inside, and it seems to me that what we’ve got in this case is a situation in which we are either going to say Katz is going to be the paradigm on which we decide this or Place is going to be the paradigm, the dog sniffing.

Isn’t that our choice?

Because isn’t everything you’re saying something that you could have said but for a change of the sense organ in Katz?

Michael R. Dreeben:

Justice Souter, I think that Katz is fundamentally different in the respect that what the bug picked up in Katz was sound waves, which is what we hear with, and it amplified them and exactly reproduced what Mr. Katz was saying inside the booth.

David H. Souter:

Yeah, but it was the wave after it got through the phone booth, just as what infrared is picking up is the wave after it gets through the roof or the window.

Michael R. Dreeben:

No, I think what the infrared imager is picking up, and the record in this case again corroborates this, is heat leaving the house.

Now, there are a number of sources–

David H. Souter:

What’s the difference between heat leaving the house and the sound wave leaving the phone booth?

Michael R. Dreeben:

–Well, there are a number of sources for the heat that will leave the exterior of the house.

There is the heat that it has absorbed during the day.

There is heat that–

David H. Souter:

But so what?

The phone booth will, I suppose, reverberate back the noise of a truck going by.

Michael R. Dreeben:

–No, but what is picked up and what is discerned is the exact reproduction of the words that the person is speaking, and that is the invasion of privacy that Katz was concerned with.

Michael R. Dreeben:

The whole point of Katz was not to look at it as a technological invasion or to focus on whether the police actually went inside the phone booth in order to acquire that information.

The point was that the information that was acquired was from within the booth, whereas here that’s not the case at all.

What is acquired–

David H. Souter:

No, but the reason they’re doing the thermal imaging is not to determine whether there is any heat being left by the sun’s radiation that is reflected back in the nighttime.

The whole point of the imaging is to determine by a high probability analysis what the heat coming from the building shows about its source within the building, and in that respect its use is exactly the same use, albeit rather less sophisticated, than the use that is being made of the sound waves that penetrate through the phone booth in Katz.

Michael R. Dreeben:

–Well, Justice Souter, I think that it’s not only considerably less sophisticated, but it is also picking up something that is very different in character from the words that people speak within a particular place.

That is unquestionably a private and protected activity, and that’s what the Court was focused on in Katz.

Here we are talking about heat loss, and I think as some of the earlier questions have developed, the heat that is lost is heat that’s generated inside a structure by virtue of the use of power.

Here the police already had utility records that indicated that an abnormal amount of power was going into the house, which logically supports the inference that an abnormal amount of power may well be coming out of the house.

David H. Souter:

Okay, but if somebody wants to spend his time in a house lying under high electricity using sun lamps, isn’t that just as much the person’s own business as what he speaks in the phone booth?

Michael R. Dreeben:

But the critical point here, Justice Souter is the thermal imager doesn’t tell you that he’s lying in the house under sun–

David H. Souter:

It doesn’t tell you that because it at this point is not sophisticated enough to do it, but it takes you one step in the way.

It says, for example in this case, yeah, this abnormal electricity usage which is showing up on the phone bill is apparently accounted for by certain uses, I forget whether they were in the attic or someplace like that, so it’s getting you one step in the way of figuring out exactly what, in fact, the use is that’s causing the electric bill to go up.

It just doesn’t get you 100 percent of the way the way the bug does in Katz.

Michael R. Dreeben:

–It doesn’t get you in that way in the same mechanism that Katz does, which is by exactly reproducing it.

Here you–

David H. Souter:

Right.

You have to go through a process of inference, which is necessary.

Michael R. Dreeben:

–Exactly.

And this Court has made clear that law–

David H. Souter:

But the object is the same, and the datum that is being used is the same.

Michael R. Dreeben:

–But there’s nothing wrong with the police attempting to use techniques from outside the house that will allow them to draw inferences about the inside of the house.

David H. Souter:

Yeah, well, that’s the question.

We said in very narrow circumstances in Place that is true, and we said in Katz where the inferential process is simpler, all you really have to do is listen, that it’s not so, and I think what your argument boils down to is if there are more interim steps to figure out what’s really happening inside than was necessary in Katz, it’s okay, it’s not an invasion of privacy, and it doesn’t violate reasonable expectation, but if there are fewer steps, then maybe it does.

Is that the nub of your argument?

Michael R. Dreeben:

I think that the argument that I’m trying to present, Justice Souter, is more complicated than that because it’s really focusing on the core question of whether there are reasonable expectations of privacy in heat loss, and in order to assess that–

Stephen G. Breyer:

It’s not in heat loss.

It’s in what is going on in the house, and I suppose it’s a question of what’s going on in the house, and do you have a reasonable expectation of privacy, do you have a reasonable expectation that the kind of thing you’re doing in the house will not be picked up by somebody out of the house, not a law enforcement officer, but just ordinary people.

Where you’re walking in front of a window, the answer is no.

Where you’re walking in front of the window and people pick it up with binoculars, every bird watcher has a binocular.

Stephen G. Breyer:

Where they’re picking it up with flashlights, every Boy Scout has a flashlight.

Who has a heat thermal device?

Nobody, except a few.

So there’s no… there is a reasonable… that’s the argument, I think that there is a reasonable expectation of privacy that what you’re doing in your bathroom is not going to be picked up when you take a bath by somebody with one of these not very well working machines.

Michael R. Dreeben:

–And what you’re doing in your bathroom is not picked up by the thermal imager.

I think it’s very–

Stephen G. Breyer:

It couldn’t tell, for example… I thought the thermal imager could tell if I go into the bathroom… I happen to like a sauna, and I turn on every shower, and I have… it really is hot and steamy, and there we are.

You’re saying it can’t pick that up?

Michael R. Dreeben:

–If you fog up the windows, you could probably actually see that from the street.

Stephen G. Breyer:

No, no, I don’t have any windows.

They’re just these very modern Finnish wood.

Now, do you tell me they can’t–

Michael R. Dreeben:

I guess a modern Finnish thermal imager–

Stephen G. Breyer:

–Can it pick it up or not?

Michael R. Dreeben:

–I think that what the record in this case shows you is that it might be able to pick up exterior heat on the outside of the house, and it will not tell you what’s going on inside the house.

Stephen G. Breyer:

It’ll just tell you it’s hot in there, which happens to be just the thing they want to know.

They want to know if it’s hot or if it’s cold.

And I suppose that there are instances where I would prefer people not know that.

I usually spend three or four hours a day in my Finnish sauna.

People think I’m working.

I don’t want them to find out what’s going on.

So do you see the point?

Michael R. Dreeben:

I do but I think what it overlooks is that the record in this case, the video in this case is particularly instructive.

It is lodged with the Court, and it represents what is alleged to be a search here.

It shows nothing of the kind.

Contrary to petitioner’s suggestion that it showed three evenly spaced heat spots that could only be the signature of a heat lamp, it doesn’t show that, and nobody testified that that was the inference that was drawn.

All that was drawn was an inference that there is an anomalous heat loss from this house compared to the structures nearby, and from that piece of information you could learn absolutely nothing about what is going on inside the house.

David H. Souter:

Okay.

But in that case you wouldn’t want to bother to use the thermal imager because you can tell that from the public utilities records.

Presumably the heat is not staying in the house, it’s not a million degrees in there.

David H. Souter:

The heat is escaping.

Michael R. Dreeben:

Well, the thermal–

David H. Souter:

The whole point of using the device is to tell you something more than you can get from the utility records.

Michael R. Dreeben:

–The whole point of using the device to try to cross corroborate various pieces of information so that you can better establish probable cause for the search warrant that was ultimately obtained.

Antonin Scalia:

Well, the utility records wouldn’t tell you what the electricity was being used for, as somebody suggested earlier.

He could have been doing laundry or listening to rock records at that high volume or a million other things other than making heat.

Michael R. Dreeben:

Most of those activities probably will make heat, Justice Scalia, but the thermal imager–

Antonin Scalia:

You missed my point.

My point is that all of those activities consume electricity, so the electricity bills do not establish that an unusual amount of heat is being generated in this house.

Michael R. Dreeben:

–Well, I actually think–

Antonin Scalia:

Which is what is needed to grow marijuana, I gather.

Michael R. Dreeben:

–I realize that… the point that you’re making but I actually think that the physics of it are that if you use more electricity, probably a lot of it will end up as heat, but the point that the thermal imager gives you is real time information, that there actually is what appears to be anomalous heat that is coming out of this house compared to its neighbors.

Neither the imager nor the utility bills will tell you there is probably a marijuana growing operation inside this house.

It will not tell you that there’s a sauna, it will not tell you that there’s a bath or a dehumidifier or anything else.

John Paul Stevens:

May I ask this question about… would you agree that Katz would apply if the imager would tell you whether it was a marijuana operation, a hot shower or a sun lamp?

Michael R. Dreeben:

I would, Justice Stevens, if what it is doing is, in effect, revealing the activities that are inside the house, yes.

John Paul Stevens:

So your distinction is that Katz would have been decided differently… or there would have been no search in Katz if they just revealed the decibels of noise as opposed to the specific conversations, and you’re saying here they’re revealing the quantity of heat without really telling you what the source of the heat is?

Michael R. Dreeben:

Well, I think Katz may well have come out differently if what was being learned was nothing more than you could actually see through the booth, which is that somebody was using the booth.

John Paul Stevens:

But your distinction is based on the particularity of what is learned rather than the sophistication of the equipment?

Michael R. Dreeben:

That’s right, and I want to–

David H. Souter:

Then I’m… I’m sorry.

Go ahead.

Michael R. Dreeben:

–We’re very clear about this for Justice Souter and Justice Breyer’s questions, if the thermal imager functioned like an x ray machine or if it functioned to be able to reach inside the house and pull out the sounds and listen to what was going on, then we don’t dispute that it would be a search.

Under Katz it clearly would be a search if what it does is reveal the activities that are going on inside the house or things that are inside the house.

David H. Souter:

But don’t you also have to agree that even on your theory, you are one step removed from the distinction that you want to draw because you’re saying if the only thing that Katz revealed was the decibel level, that would have involved no Fourth Amendment interest, but here something more than what you want to characterize as the amount of heat or the amount of heat loss is being revealed because the image is revealing a pattern, it is revealing something about the physical locations in which the volume of heat loss is occurring in a measurable way, so we’re learning something more than just the equivalent of decibel levels.

Michael R. Dreeben:

But what we’re not learning is what activities are going on or where they are going on in the house.

David H. Souter:

Right.

Antonin Scalia:

It depends on how you define activities.

You certainly learn that the generation of heat is going on in the house.

Michael R. Dreeben:

You do learn that.

Antonin Scalia:

There is a lot of heat generating going on in that house.

Now, if I, you know, if I happen to be quite a private person and I don’t want people knowing how much heat I’m generating, I suppose that that activity has, indeed, been disclosed to the world.

Michael R. Dreeben:

At that level of generality, coupled with inferences because you don’t learn that directly from the imager at all, you don’t learn directly from the imager at all that unusual amounts of heat are being generated.

You have to couple that with inferences about what other houses next door might be doing, and you probably don’t know what’s going on inside of those houses, and you have to couple it with inferences that it hasn’t been unduly heated up by the sun or that there’s not a local microclimate that is causing the imager to pick up additional radiated heat at that location.

You have to factor in all of those things, which reduces the specificity and directness, the linearality of any inference that you draw.

There isn’t a one to one correspondence between heat on the exterior of the structure and heat on the interior of the structure.

David H. Souter:

But you are saying, then, that the expectation of privacy depends on whether there is this one to one correlation between what is picked up and the ultimate conclusion drawn for it.

You’re saying, I think, that if there is a process of inferential reasoning in which what is picked up is only one among other datum… data that are used for the reasoning there is no reasonable expectation of privacy.

It’s the inference that breaks the expectation… the reasonableness of the expectation of privacy.

Michael R. Dreeben:

I think it’s several factors, Justice Souter.

That is one of the factors.

The factor that you’re relying on inferences to conclude that there probably is a heat generating source inside the house that is greater than average.

Another factor is that heat loss is not that private a fact, as it corresponds roughly to consumption of energy, which is not private.

And a third factor is that the imager is not picking up, again, activities that are inside the house directly.

It is picking up the exterior surface of the walls.

David H. Souter:

But it is picking it up in a way, as Justice Breyer pointed out earlier that clearly reveals a fact about what is going on inside, and that fact was not known from utility records.

Michael R. Dreeben:

It complements the utility records.

I do think that if the Government–

David H. Souter:

Well, it’s doing something more than just confirming that there is energy use going on.

It is… what it is showing is that the energy use is generating heat, and that the heat is being concentrated in certain places in the house.

That’s new information.

Michael R. Dreeben:

–It’s not showing that Justice Souter, because we don’t know the composition of the insulation within the house, we don’t know the configuration–

David H. Souter:

Oh, we can’t draw a conclusion with absolute certainty, but if we make the assumption that the house has not been whimsically insulated so that on the east end of the roof there’s lots of insulation but when they got to the west end, they had run out or said, what the heck, let’s let the heat escape.

If we don’t make assumptions of whimsy, we are, in fact, going to be in a position to draw a probability inference, and that probability inference goes beyond anything that a utility record could show.

Michael R. Dreeben:

–The ultimate inference that we would like to draw, of course, does but the question is whether the data that we are collecting from which we draw that inference constitutes a search.

The steps of inference that we use once we have acquired the data cannot make a description–

David H. Souter:

All right, then you’re saying there is no search when an electronic device fails to reveal the ultimate conclusion that is being used as evidence.

Michael R. Dreeben:

–I would hesitate to say categorically that that is so, but I think–

David H. Souter:

I would, too, but I think that’s your argument.

Michael R. Dreeben:

–I think that my argument in this case depends on the nature of heat, what the imager actually detects, and the fact that we need to draw a series of inferences.

Anthony M. Kennedy:

This is certainly not what the prosecuting attorney told the magistrate.

He didn’t say, now, we can’t draw any inferences from this.

That’s the whole point of getting the warrant.

Let me ask you this.

There’s an element of circularity necessarily in our opinions as a reasonable expectation of privacy because the courts say so, and in Katz there was a reasonable expectation of privacy because this Court made the assumption, the finding, the inference, the conclusion that we don’t want our private conversations intercepted when we are in a space which we think is private.

What is different about the conversation, the contents of discussions on one hand and heat generating activities on the other?

Michael R. Dreeben:

Well, I think there are several critical differences, Justice Kennedy.

The first is that heat loss is inevitable from a structure.

Everybody knows that.

That’s why there’s an insulation industry in the first place.

Anthony M. Kennedy:

Well, most people talk, too, so–

Michael R. Dreeben:

Most people talk, and when they talk within the four walls of their house, unless they have the windows open and they’re screaming out the window, will make an assumption that they cannot be heard by people who are standing on the street.

Anthony M. Kennedy:

–I think that’s somewhat of an issue.

What other reasons?

Michael R. Dreeben:

Well, in addition, the fact that heat is generated in a structure is largely a product of the power that’s going into the structure, the electrical and other utilities that are brought into the structure, and there’s no secret about that information because it comes from the utility company.

Third factor is that heat loss itself is observable in a variety of circumstances without the aid of any technology whatsoever.

In the examples of when snow is melting on a house or when, for example, smoke is going up a chimney.

Anthony M. Kennedy:

Same for conversation.

If I happen to be going by a window that’s open, I can hear the conversation.

If I… so that’s also, it seems to me, neutral.

Michael R. Dreeben:

Well, I don’t think that it’s neutral.

I think that–

Anthony M. Kennedy:

I mean… or neutral as a way of distinguishing the two cases.

Michael R. Dreeben:

–Well, there’s a fairly significant difference between cases where the Court has said somebody has publicly exposed their activities to view and therefore doesn’t have any reasonable expectation of privacy, and the very question of whether heat loss is a private enough fact in the first place.

Sandra Day O’Connor:

Mr. Dreeben, the Ninth Circuit seemed to rely on a theory of it’s like garbage thrown out, that when the homeowner has waste heat, it’s somehow discarded, and there’s no privacy interest left in it.

Do you support that analogy?

I thought–

Michael R. Dreeben:

I don’t think that’s–

Sandra Day O’Connor:

–that was a little hard to understand.

Michael R. Dreeben:

–Well, I don’t think it’s the strongest analogy, although there are cases where I think the analogy would fit.

Michael R. Dreeben:

The theory of the garbage cases is that by voluntarily abandoning–

Sandra Day O’Connor:

Abandonment.

Michael R. Dreeben:

–Correct.

Sandra Day O’Connor:

It’s hard to say the homeowner had abandoned this heat information.

Michael R. Dreeben:

Well, I think that there are cases in which the analogy would fit better; for example, where there is a very active ventilation system that is specifically attempting to draw the heat out of the house in order to provide a suitable climate for growing the plants that are inside, but the primary rationale that the Ninth Circuit used which is similar to the rationale that I’m articulating here is that the thermal imager doesn’t pick up any intimate details or particularly private details about what is going on inside of the house.

Antonin Scalia:

Mr. Dreeben, what about a more general proposition, that there is no unconstitutional invasion of privacy when the police deduce from what goes on outside the house what is going on inside the house, intimate or not.

I suppose the police can certainly surveil a house over a long period and see people carrying in hot dogs every day, and they can deduce that the eating of hot dogs is going on in that house.

And that is surely no violation of the Constitution, is it?

Michael R. Dreeben:

Absolutely correct, and I do think that that illustrates–

John Paul Stevens:

If you accept that rationale, it seems to me you would decide Katz differently if instead of having the device on the roof of the phone booth they had it six feet away.

Michael R. Dreeben:

–No, I don’t think so.

I think the whole point of Katz, Justice Stevens, was that that physical intrusion is irrelevant.

What matters is what information you were acquiring, and in Katz, and in the hypothetical of removing the bug from six feet, the information that you are acquiring is direct information from inside the house.

In the thermal imager it’s not.

It’s a fusion of heat from a variety of sources.

It’s a very weak correlation between what’s going on outside the house and what’s going on inside the house.

It’s not like seeing a visual heat impression of a particular object that’s outlined as if it were in silhouette on the outside of the house.

Nothing of the kind occurs.

David H. Souter:

Okay, but that gets back to I think to the point, that it’s the process of inference necessary to reach the ultimate conclusion you want, e.g. marijuana in the house, that makes the difference between a search and a nonsearch and I guess makes the difference between reasonable expectation and nonreasonable expectation.

Michael R. Dreeben:

Certainly if what you are acquiring is information that is not itself the product of a search, as in Justice Scalia’s hypothetical, the fact that you can draw inferences, including very detailed and intimate inferences about the inside of a the house doesn’t convert the original observation into a search.

David H. Souter:

Absolutely right.

But the question here is whether part of that… whether that information is acquired as a result of a search so that you can’t use that rationale to answer the question in front of us.

Michael R. Dreeben:

Well, I think that the opposite is actually what holds true.

You cannot use the fact that inferences can be drawn from the observations to categorize the observations as a search.

Stephen G. Breyer:

That’s right.

That’s exactly right.

But Justice Scalia had an inference, had a situation where you use your eyes and your brain.

Nothing against that.

Here they are using a machine.

You keep telling me that what’s inside the house isn’t that important, it’s very vague and general.

Stephen G. Breyer:

What is the nature of the information to do with it?

I would have thought nothing.

If somebody’s inside the house singing Maresy Dotes, Doesy Dotes, who cares what he’s singing?

The fact is where he was singing it, and he was singing it inside his house.

So you’re taking information from inside the house.

Maybe our problem is my seventh grade science class.

I mean, I used to think, perhaps wrongly, that sound went to a wall, then the electrons start to vibrate in the wall, and pretty soon the wave goes outside, and here it seems to me heat goes to the wall, heats up the wall, and then the heat goes outside, so I just find it difficult to distinguish between sound and heat, but I find it easy to distinguish in terms of whether a person inside the house has a reasonable expectation that a lot of people outside the house are going to be using this machine.

Michael R. Dreeben:

Well, but my seventh grade science classes don’t help me very much with this, either, and I think what the Court’s cases indicate is that it’s not essentially a science question.

It’s a question about, as the latter part of your comment indicated, the reasonable expectations that people have, and I think people have different expectations about what is outside of their house from what is inside of their house, and there are a variety of ways–

Stephen G. Breyer:

Right, good, that’s exactly it.

What is it that would lead me reasonably to expect a lot of these machines around picking up the heat?

Michael R. Dreeben:

–Probably very little, although so far there has been some commercialization of thermal imaging in cars that will help it detect animals in the road and so forth, and there probably will be other uses in the future.

I don’t think that this case turns on whether thermal imaging is so prevalently in use that everybody would expect it would be used on their house.

I think the core question is whether the heat loss on the outside of their house is sufficiently revealing of what’s inside of the house to be considered a search.

Anthony M. Kennedy:

But, you see, that distinguishes it from the garbage case, Greenwood, and as I recall, the word abandonment was not used in Greenwood.

I looked at it just quickly.

Abandonment was a theory the Court stayed way away from.

The Court said there’s no objective expectation of privacy because we all put our garbage out and we all take this risk.

But that just doesn’t fit with what we have before us today based on the conversation and the exchange you were just having with Justice Breyer.

We just don’t know about these things.

Most people don’t know that their heat’s going to escape and be measured.

Michael R. Dreeben:

No, but the California versus Greenwood analysis is not the only analysis that could be used for expectations of privacy.

The Court was clear in that case that the people could expect that their garbage would be rummaged through once they put it outside and therefore couldn’t expect that the police would not do that, but that doesn’t mean that people do intrinsically have an expectation of privacy that their houses are losing heat.

Most people do not go around thinking about that as something that they view as a particularly private fact.

They ventilate heat, they try to put insulation in to keep it from leaving the house, and they buy electricity and other sources of power that are going to generate it.

What they do expect is that they will not be able to be viewed engaging in their personal activities or listened to in the house.

Ruth Bader Ginsburg:

But if the device became more sophisticated and the police could say, well, it’s not just heat in general, we can tell that it’s a lamp or a shower, would that be a different case?

Michael R. Dreeben:

I think it would be a very different case, Justice Ginsburg, because then it would begin to approach an x ray device or some other device that could actually penetrate the barriers of the walls, and there the expectations that would be intruded upon would not be simply heat leaving the house but would be the very detailed activities that go on inside of the house.

John Paul Stevens:

Let me ask you a question.

Does the record tell us how extraordinary the amount of heat produced by these lamps and so forth is as compared to normal use?

John Paul Stevens:

Is it five or six times the amount or just slightly more?

Michael R. Dreeben:

I think there’s information in the search warrant that tends to show that they produce… that they consume an inordinate amount of electricity, and there is testimony that the halide lights that are used for growing marijuana generate a high amount of heat.

John Paul Stevens:

But they don’t tell us what… they don’t quantify that, say it’s ten times as much the normal use or anything like that?

Michael R. Dreeben:

I don’t recall whether there’s a direct–

John Paul Stevens:

Because it does seem to me that the expectation of privacy, say with sound if you had a rock band in the attic, you’d have lesser expectation of privacy that someone can hear it than if you had a soloist or something, and here if you had heat that, you know, really was a tremendous amount of heat you might say well you really didn’t expect that to be private, but we don’t measure it that way.

Michael R. Dreeben:

–The thermal imager doesn’t really measure it that way, either.

All it detects is relative amounts of heat.

It doesn’t detect absolute amounts of heat, and accordingly, officers tried to use a reference structure.

Now, they’re going to have to draw a lot of inferences by comparing one structure to another because it’s not a perfect control.

They don’t really know what’s going on inside the house next door, and even the inference that there’s an anomalous amount of heat that’s going on in 878 Rhododendron Drive, which is what the thermal imager produced in this case, is an inference that depends on things that the officers don’t really know, that what is going on in the house next door that makes it look cooler compared to the house that they’re actually surveying, and all of those factors contribute to make the data that is obtained in this case qualitatively different than the data that would be obtained in a wiretap case or in a case where an x ray type device actually penetrated the house.

Now, if this Court were to hold that thermal imaging is a search, it could have a very chilling effect on uses of the thermal imager other than the kind of use that it was put to in this case.

Thermal imagers are often used in fugitive apprehension, in perimeter surveillance for law enforcement, and for search and rescue operations in which they pick up an enormous amount of data, including houses that may be nearby to where a fugitive or a missing person is located.

And if the Court concludes that… thank you.

William H. Rehnquist:

Thank you, Mr. Dreeben.

Mr. Lerner, you have two minutes remaining.

Kenneth Lerner:

Thank you, Your Honor.

First of all, the Government’s position that they were just seeing generalized heat loss is not correct.

I disagree with that.

If you look at the video taken, you will see that it’s very specifically showing three glowing areas, evenly spaced.

That’s very specific private information that it’s obtaining about the inside of the house.

It’s not generalized heat loss, and it is information that they could not have determined any other way.

Only by the use of the thermal imager.

I also think that the Government’s test is really going to lead down a difficult road for this Court.

When will information become private enough that it’s protected or when is it going to be specific enough that it should be protected?

These are very vague concepts that every case is going to turn on the specifics of the facts which I think is going to be very troubling for courts and for the police in the future, and really don’t set any guidance for how to use this machine.

I think that’s a very problematic area that the Court’s going to have to grapple with.

If there are any other questions–

William H. Rehnquist:

Thank you, Mr. Lerner.

The case is submitted.