Scalia's comments during oral argument in a case earlier this year on whether law enforcement could impound a home during the time it took to get a search warrant make his opinion in the most recent case, Kyllo v. U.S., less surprising. "There is considerable interest on the part of an individual in going into his own home," he said. "We're going to go crazy trying to balance these things all the time." And also "I'm concerned about complicating the criminal law more than necessary...I'm not sure human beings are capable of figuring out so many variations." So Scalia drew as bright a line as he could in the 5-4 decision favoring Danny Lee Kyllo, ruling more broadly than many expected.
Kyllo was arrested in 1992 after an Oregon National Guard sergeant used military equipment an Agema Thermovision 210, which could detect different levels of infrared heat emanating from a building to find that part of Kyllo's triplex was putting out a relatively large amount of heat. Thanks to the splotchy picture produced by the thermal imaging device, the cops were able to get a search warrant, go into Kyllo's home and find that he was growing about 100 marijuana plants in a room above the garage, under high-intensity lamps. In previous decisions dealing with this technology, courts have been all over the map. Scalia put a stop to that.
The Supreme Court's precedents "draw a firm line at the entrance to the house," said Scalia, and it's irrelevant whether ever-evolving technology permits law enforcement to gather evidence without entering the premises. If, without the technology, the cops would have had to enter the house to gather the evidence needed bingo, they needed a search warrant, said the justice, harkening back to the original meaning of the Fourth Amendment and common law in a perfect Scalia moment. His aim: to preserve the degree of privacy that was expected at the time the Fourth Amendment was written.
Appellate lawyer John Elwood, who clerked for Anthony Kennedy, called this "one of the most important Fourth Amendment cases in years" because of its relative breadth. Search-and-seizure cases are for the most part a motley, fact-specific bunch. The 1967 decision in Katz v. U.S. was seminal, establishing a standard albeit squishy of whether a citizen had a reasonable expectation of privacy when government intrusion occurred. That case involved a bookmaker's use of a public telephone, which was bugged unconstitutional, said the Court. In another case the civil liberties crowd liked, the Court ruled in 1984 that federal agents couldn't put a beeper in a canister of ether, which they followed to a home where it was used to extract cocaine from clothing.
But there are whole areas where the expectation of privacy has been held essentially null and void, such as cars. "Fourth Amendment protection of autos has been largely eroded," said Yale Kamisar, law professor at the University of Michigan. Even passengers' purses can be searched without a warrant (although it's less clear whether a passenger's person can be, showing how tricky it is to thread this needle). And Kamisar argues that in general, "the whole trend has been the other way, toward saying that police surveillance is not a search." Giving a Charmin-like squeeze to a bus passenger's soft-sided luggage was found last year to be not okay (in a 7-2 decision written by Chief Justice William Rehnquist, of all people), "but that was a bump in the road," Kamisar said. "The Court has almost rolled over and played dead on the Fourth Amendment because of the drug war."
Not quite, of course. This year the Court ruled 6-3 that drug testing pregnant women without their consent and forwarding the results to law enforcement authorities was an unconstitutional search (Ferguson v. City of Charleston) and, in another 6-3 decision, that police roadblocks using drug-sniffing dogs were also verboten. On the other hand, the justices found, 5-4, that it was not an unconstitutional seizure to arrest someone, handcuff her and ship her off to jail for driving without a seat belt when the maximum penalty for the offense was a $50 fine (Atwater v. City of Lago Vista).
It's worth noting, in case anyone thought Scalia was applying for charter membership in the new, anti-Federalist Society group being started up by Georgetown University law professor Peter Rubin and a few others, that Scalia was in the dissent in the first two cases and in the majority in the third. So though he is sometimes jokingly known as "Let 'Em Go Nino" for certain rulings he's made in the criminal area, the emphasis is on "jokingly." In a handful of cases most notably last year's Apprendi v. New Jersey, in which he sided with the majority in holding that juries, and not judges, must make any factual findings on enhancements of penalties under the federal sentencing guidelines he has found against the government. Another example, from 1987: Arizona v. Hicks. In that case, authorities, responding to reports of a shooting, entered an apartment without a warrant in pursuit of the shooter, saw some expensive stereo equipment while they were there, turned it around to get the serial numbers and found that it had been stolen. Scalia found the obtaining of the serial numbers to be an unconstitutional search; notice that once again it was a case involving the home.
In the Kyllo case, Anthony Kennedy's stance may have been as surprising as Scalia's (and of course that of John Paul Stevens, who bought the government's line). In a 1998 case, Minnesota v. Carter, he wrote that "Security of the home must be guarded by the law in a world where privacy is diminished by enhanced surveillance and sophisticated communications systems." But guess how he ruled this week? With Stevens, Sandra Day O'Connor and William Rehnquist and for law enforcement's newfangled evidence-gathering gizmos.