Appunti Criminal Procedures and New Technologies

THERMOGRAPHY

Kyllo v US case

It is interesting because it gives us the idea of how decisions set some rules that over time must be applied to

evolving technology.

This decision was taken in a time where thermal images were quite rough devices and provided for images that

were not very detailed.

Nowadays thermal images are available, cheap, easy to use, and more sophisticated. They gave more details.

What is a thermal imager?

The device is pointed towards an object and it gives us in different colors the different levels of heat on things.

It measures the temperature of the surface.

The red zones are the warmest ones and the blues the coldest.

At that time, the images produced by thermal images were not that detailed as the ones we can obtain today.

The thermal imager can not see through the walls.

It detects different levels on the surface. It is not possible to scan human bodies inside a house.

Still, it can measure the temperature of the human body. It is an infrared based device.

For instance, it is normally used to detect people in the dark.

It can be used to find people who are missing, children, elderly people who get lost in wide spaces even in the

dark.

They.

It is very efficient.

It is possible to set it on a drone.

They are useful and nowadays more precise and applicable to very different tools.

Are they useful for investigation?

Yes, they are.

KYLLO CASE

To make a search, under the IV amendment the police need a warrant.

To obtain a warrant, the police need a probable cause: it must have other elements, information that show that

probably with the search the police will obtain some relevant result.

The police must explain the reason why.

Therefore other elements are required to show that the warrant is justified.

The police had a suspect that Kyllo was growing a marijuina plantation indoors, inside his house.

To grow a marijuana plantation indoors, you need lamps to create a hot and warm environment for the plants.

These lamps produce very high levels of heat.

What they did was parking a car in front of the house on a public road and using a thermal imager installed on

the car, pointing it towards the house to obtain the images of the walls and roof of the house.

By the results of the imager, the roof of the garage of the house was hotter and a wall than all the rest of the

house.

Based on that, the police brought the picture to the judge and on those elements they asked for a warrant.

They obtained the warrant and found a hundred pounds of marijuana with a search.

The problem was : it is true that they had a warrant, but they had a warrant for the search, not for the thermal

imager.

They use the results of the imager to obtain the warrant.

The first step was not the search. They did not need a warrant.

This is important because the US’s system of criminal proceeding is based on a theory which is known as the

“theory of the fruits of the poisoned tree”: if you have an illegal evidence or an illegal procedure and you obtain

results which derive, depending on that first illegal step, everything is illegal and it is not usable in trial.

The first illegal step poisons everything deriving from it.

What was the general framework?

First of all, the technology used was the Agema 210 thermal imager, which is a quite old device.

The colors and the definition provided by the device was not very clear.

The level of intrusion apparently was very low, because it was not possible to see a lot, except from shifting

colors.

The device does not capture people or objects within the house, which would be for sure a harm to privacy.

Third, it can not record conversations or details. It was only capable of measuring the temperature of the

external part of the house.

However, teh defense made an experiment with the same device attached to a vehicle placed at the same

distance from which images were taken.

They proved that the device can catch the movements of a hand. It was apparently more detailed than one may

think.

The court argued that the use of thermal imager constituted a search under the IV amendment and therefore exit

should require a warrant.

The court was very hard.

Why this conclusion?

Apparently the device was able to observe the surface.

It is another perspective of applying the IV amendment, of trying to make a very old rule compliant with

modern times.

Justice Calia was the judge who wrote the motivations:

1.the technology used is rough. The court admits that it does not provide very detailed or sophisticated

information. However, what they argued is that "we should adopt rules when it comes to technology that are

adjustable to future development”.

If in a specific situation, the technology used was not particularly advanced, technology evolves quickly.

Therefore, what we decide today will be applied tomorrow to devices that can collect more details, and

sophisticated information.

Therefore the rule that we must adopt shall take into account more sophisticated systems that are in use or in

development.

When a court decides a rule, it shall take into account that that rule will be applied in the future to different

systems.

It can not be a rule based only on that case. It would not be enough.

2. Justice Calia also adds that “this means that we must set a rule that can be applied in the future to different

devices and we must give a definition of the methods of surveillance that require a warrant.

The definition is important because the police must know in advance before using a device if it is necessary the

use of a warrant. Otherwise they make a mistake and the result of the mistake is that evidence can not be used in

a trial.

They must be aware before the activity of investigation, if they must ask for a warrant or not.

The court says “we must give them a definition, we must tell them when a warrant is required, when a

technological device”.

It is a long view of the original meaning of the IV amendment forward.

They repeated that the milestone is represented by the IV amendment, but it is necessary to provide a definition

and rules that can curve the IV amendment to modern times and make it applicable in the future to technological

advanced devices.

The point is to provide for an orienteering rule, give the police a compass to establish how they must move

within an investigation.

This is the rule: when the Government uses a device that it is no 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.

The rule sets the criteria to establish when a surveillance is a search.

When does the surveillance need a previous warrant?

1.When the device they are using is not in general public use: when it is rare, unexpected.

2.When the device is able to explore details of the home that previously would not be unknown without physical

intrusion: it is a search as long as you obtain a kind of information that without a device you could obtain only

by entering physically in that house.

The two rules are can be explained:

1.The fact that the device must not be in general public use is related to the fact that somehow privacy is

protected in the limits of the reasonable expectation of people.

One of the issues and basic rules in this kind of set of decisions is what a person can expect.

I can not expect to be put under surveillance with a device that does not exist. Only secret services have it.

If normal people have no idea of their existence, they can not expect to be under control in that way.

Until twenty years ago, even GPS tracking with cell phones was not possible. Nowadays people acknowledge

such possibilities.

But there are other things that people do not know and therefore they are not in public use.

2.The measurement of the intrusion is what you could obtain with a search: if the technology is the modern

advanced device that takes place in physical intrusion, then you need a warrant, because it’s the technological

way to do the same thing.

You can not avoid the IV amendment with technology.

If you obtain details of a home that normally you would obtain just with a scratch, even if you are outside the

house, it is a search and you need a warrant.

The problem is the concept of public use: the idea of the decision was “the court must give a rule that is

applicable in the future”.

But in order to obtain such results, the rule that the court gives shall be objective.

In the rule provided by the court in this case there is an objective part and a less objective one.

The second part is clear: everything is able to establish if the result of the device is something that you would

not obtain unless you made a physical search.

What is not simple is the first definition: What is in general public use?

The thermal imager offers a perfect example: anyone can buy a thermal imager. Therefore is it in general public

use?

In the decision Jones v US, Sotomajor provided something that we shall remember: is this enough?

If I can buy a thermal imager, it means that I should imagine that the police maywatch my house from the

outside through it.

It is very difficult for normal people to understand this technology.

How can the police apply the definition provided by the court?

Let’s analyze the Kyllo case from the dissenting opinion put forward by Justice John Paul Stevens, which has

attached the image produced by the thermal imager.

The lighter spots in the roof and the wall of the garage are the heated parts. However it is not that detailed if

compared to actual thermal imagers.

Justice John Paul Stevens drew a distinction between off-the-wall surveillance and through-the-wall

surveillance.

He argued that through-the-wall surveillance is the kind of surveillance that implies that the observer gets to

know information inside the house.

In this case, it is off-the-wall surveillance, because the observer is watching at the exterior of the house and does

not catch what is happening inside.

The starting point is “it was a fairly primitive thermal imager that gather data exposed on the outside of the

petitioner's home, but did not invade any constitutionally protected interest in privacy," and were, thus,

"information in the public domain."

What he was arguing is that privacy and the Fourth Amendment protects the area inside the house. It’s the same

principle of the trespass theory: you are protected as long as someone else crosses a physical portal into your

private space.

There was no intrusion into the private space, because the observation was from the outside and it covered only

external information.

The principle implicated here is “searches inside the searches and seizures inside a home without a warrant are

presumptively unreasonable.

But it is equally well settled that searches and seizures of property in plain view are presumptively reasonable.

Stevens started from a point: a concept taken from another