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Old January 24, 2013, 12:17 AM   #13
Aguila Blanca
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Join Date: September 25, 2008
Location: CONUS
Posts: 6,486
Link to Kyllo: http://supreme.justia.com/cases/fede...3/27/case.html

Kyllo was about a search of a home, but the core of the ruling was about where one might have a reasonable expectation of privacy. And it would appear (to me), based on the language from the Kyllo decision, that one's pocket (or underwear) is likely to be as protected against warrantless search as one's living room.

Quote:
Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search,” and is presumptively unreasonable without a warrant. Pp. 31–41.

...

(b) While it may be difficult to refine the Katz test in some instances, in the case of the search of a home’s interior—the prototypical and hence most commonly litigated area of protected privacy—there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. Thus, obtaining by sense-enhancing technology any information regarding the home’s interior that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman v. United States, 365 U. S. 505, 512, constitutes a search—at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. Pp. 33–35.

(c) Based on this criterion, the information obtained by the thermal imager in this case was the product of a search. The Court rejects the Government’s argument that the thermal imaging must be upheld because it detected only heat radiating from the home’s external surface. Such a mechanical interpretation of the Fourth Amendment was rejected in Katz, where the eavesdropping device in question picked up only sound waves that reached the exterior of the phone booth to which it was attached. Reversing that approach would leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home. Also rejected is the Government’s contention that the thermal imaging was constitutional because it did not detect “intimate details.” Such an approach would be wrong in principle because, in the sanctity of the home, all details are intimate details. See, e. g., United States v. Karo, 468 U. S. 705; Dow Chemical, supra, at 238, distinguished. It would also be impractical in application, failing to provide a workable accommodation between law enforcement needs and Fourth Amendment interests. See Oliver v. United States, 466 U. S. 170, 181. Pp. 35–40.
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