More Regarding Radiation Monitoring...
As promised, a bit more news has come out regarding this story. This story was in the East Valley Tribune this morning (that's one of our local papers). Unfortunately, it was available only in the print version of the paper. However, I found the same, identical story on Newsday.com. It comes from the AP Wire Service. The entire piece is cited below with my running commentary on key points.
http://www.newsday.com/news/politics/wire/sns-ap-domestic-surveillance,0,3518810.story
A classified radiation monitoring program, conducted without warrants, has targeted private U.S. property in an effort to prevent an al-Qaida attack, federal law enforcement officials confirmed Friday.
While declining to provide details including the number of cities and sites monitored, the officials said the air monitoring took place since the Sept. 11 attacks and from publicly accessible areas -- which they said made warrants and court orders unnecessary.
OK. Now we have an answer to an important question, that being what sort of monitoring was conducted. This was a wide-scope monitoring of areas suspected of possibly having a nuclear device.
U.S. News and World Report first reported the program on Friday. The magazine said the monitoring was conducted at more than 100 Muslim sites in the Washington, D.C., area -- including Maryland and Virginia suburbs -- and at least five other cities when threat levels had risen: Chicago, Detroit, Las Vegas, New York and Seattle.
The magazine said that at its peak, three vehicles in Washington monitored 120 sites a day, nearly all of them Muslim targets identified by the FBI. Targets included mosques, homes and businesses, the magazine said.
Fo all those out there ready to decry this as profiling, or bigoted of some sort, I must remind people that we moved on this based on intelligence we had in hand. We know full well of the weapons caches discovered in Afghanistan and Iraq in mosques. These animals may try to put the facade on the idea that these are "holy places," but in my humble opinion, they defiled it by instigating violence from them, and storing weapons in them. We have taken great care not to intentionally damage mosques that terrorists hold themselves up in, but when we take fire from them, we return fire. Likewise, in the targeting of these sites, it was obvious that the FBI had a legitimate reason for choosing them. This was not done on a whim.
The revelation of the surveillance program came just days after The New York Times disclosed that the Bush administration spied on suspected terrorist targets in the United States without court orders. President Bush has said he approved the program to protect Americans from attack.
Ibrahim Hooper, spokesman for the Council on American-Islamic Relations, a Washington-based civil rights group, said Friday the program "comes as a complete shock to us and everyone in the Muslim community."
"This creates the appearance that Muslims are targeted simply for being Muslims. I don't think this is the message the government wants to send at this time," he said.
To Mr. Hooper: The US has taken every step to separate peace-loving Muslims from the terrorist fanatics abraod. However, he must also understand that we have already arrested a few Muslims in this nation for being a part of cells that originate from these mosques. Lodi, CA, anyone? How about the cell caught in Buffalo that the FBI connected them to the mosque in their area that did preach anti-American, anti-Israeli, pro-jihadist rhetoric? Do not level the accusation at the US for doing it's job when you refuse to acknowledge that your house is in disarray.
Hooper said his organization has serious concerns about the constitutionality of monitoring on private property without a court order.
Brian Roehrkasse, a Justice Department spokesman, said Friday that the administration "is very concerned with a growing body of sensitive reporting that continues to show al-Qaida has a clear intention to obtain and ultimately use chemical, biological, radiological and nuclear" weapons or high energy explosives.
To meet that threat, the government "monitors the air for imminent threats to health and safety," but acts only on specific information about a potential attack without targeting any individual or group, he said.
And this is key to the whole question regarding it's legality. No specific sites were targeted. This was a broad-range scan that was conducted. We're talking about the monitoring of city blocks, not one specific site.
"FBI agents do not intrude across any constitutionally protected areas without the proper legal authority," the spokesman said.
In a 2001 decision, the Supreme Court ruled 5-4 that police must get warrants before using devices that search through walls for criminal activity. That decision struck down the use without a warrant of a heat-sensing device that led to marijuana charges against an Oregon man.
This is Kyllo that is being cited, which I think isn't technically relevent for one specific reason. In Kyllo, the court was rendering a decision regarding a "targeted" search. The police had used thermal-imaging equipment to peek inside the defendant's home. This case can't have that ruling or logic applied to it. The "search" that everyone is going bonkers about was wide-ranging. No specific targets were named or mentioned. It was a sweep. That is no different than the air-testing that goes on by the government.
Roehrkasse said the Justice Department believes that case does not apply to air monitoring in publicly accessible areas.
Mr. Roehrkasse is correct. All of the areas that are in question are technically public areas. Anyone can access them during "business hours."
Two federal law enforcement officials, speaking on condition of anonymity because the program is classified, said the monitoring did not occur only at Muslim-related sites.
There goes the bigotry charge. Even if it was predominantly Muslim sites, there were other sites scanned. Mr. Roehrkasse has already stated that the FBI didn't overstep it's Constitutional boundaries.
Douglas Kmiec, a professor of constitutional law at Pepperdine University, said the location of the surveillance matters when determining if a court order is needed.
"The greatest expectation of privacy is in the home," said Kmiec, a Justice Department official under former presidents Ronald Reagan and George H.W. Bush. "As you move away from the home to a parking lot or a place of public accommodation or an office, there are a set of factors that are a balancing test for the court," he said.
Yes, but the balance is swept onto the side of the government, and it's program. If we are talking about a home, again, the controlling factor is whether or not they're a US citizen. If they aren't, we go back to the Constitutional protections that don't exist for non-citizens. If they are a citizen, a warrant must be obtained. But when you remove the "home" from the equation, and this moves to "public places," then the program is safe, and no laws have been broken.
Despite federal promises to inform state and local officials of security concerns, that never formally happened with the radiation monitoring program, said an official who spoke on condition of anonymity because of the sensitivity of the information.
The official said that after discussions with attorneys, some state and local authorities decided the surveillance was legal, equating it to air quality monitors set up around Washington that regularly sniff for suspicious materials.
Thank you. There's the air quality monitors I cited earlier. These sorts of monitors, whether in trucks or on helicopters, are no different. And the government, again, has the right to monitor the nation to prevent an attack. It's not secret that these Islamo-facists want to get their hands on a WMD, and hit us with it. We need to take greater care in assuring that none reach our shores. If one does, we must find it and deal with it quickly.
"They weren't targeting specific people, they were just doing it by random, driving around (commercial) storage sheds and parking lots," the official said.
Asked about the program's status, the official said, "I'd understood it had been stopped or significantly rolled back" as early as eight months ago.
Such information-sharing with state and local officials is the responsibility of the Homeland Security Department, which spokesman Brian Doyle said was not involved in the program.
OK, so we know that this monitoring program did include Muslims sites, and other sites. Storage sheds and parking lots were also checked. The monitoring can be targeted, but it's also a wide-ranging monitoring system that could cover several areas at once. It's sole purpose was to "sniff" out radiation; essentially looking for a radiological device or devices.
The FBI, who was in charge of this operation, stated that they have stayed within their Constitutional boundaries; that if a warrant were needed, they would have obtained one, and no one's civil liberties were violated. Now, of course, if there's an investigation into this, that will be up to Congress to determine. But, I'm apt to agree that the FBI would obtain a warrant if one were needed. Let's face it, this isn't the Clinton White House searching out political adversaries; this is the Bush White House in the middle of a war trying to protect the nation.
As it stands now, with this new bit of information regarding this program, I'd have to say that there is nothing illegal about what the government is doing. As a matter of fact, this looks more and more like the New York Times story about the NSA surveillance program. Further, with the president already trying to defend one program, this looks more like an MSM hit-piece to discredit him, and using the NSA story to add fuel to thei fire.
Needless to say, ladies and gentlemen, I smell a rat, and it's name is the MSM. And had they taken the time to actually research the law, and the cases involved, they would have seen that this is literally, much ado about nothing. (WE have read United States. v. United States District Court, Kyllo, repeatedly read FISA, and the decisions regarding FISA. Nothin under any of them would prevent such a scan. It's wide-range, and not specifically targeting a structure.)
On a side note, for those that are willing to argue the merits of Kyllo in this situation, let me cite some key points by Justice Scalia, who wrote the majority opinion.
In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires high-intensity lamps. In order to determine whether an amount of heat was emanating from petitioner's home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmth--black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. The scan of Kyllo's home took only a few minutes and was performed from the passenger seat of Agent Elliott's vehicle across the street from the front of the house and also from the street in back of the house. The scan showed that the roof over the garage and a side wall of petitioner's home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex. Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house, which indeed he was. Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner's home, and the agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of manufacturing marijuana, in violation of 21 U. S. C. ยง841(a)(1). He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea.
The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. On remand the District Court found that the Agema 210 "is a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house"; it "did not show any people or activity within the walls of the structure"; "[t]he device used cannot penetrate walls or windows to reveal conversations or human activities"; and "[n]o intimate details of the home were observed." Supp. App. to Pet. for Cert. 39-40. Based on these findings, the District Court upheld the validity of the warrant that relied in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially reversed, 140 F. 3d 1249 (1998), but that opinion was withdrawn and the panel (after a change in composition) affirmed, 190 F. 3d 1041 (1999), with Judge Noonan dissenting. The court held that petitioner had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, id., at 1046, and even if he had, there was no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only "amorphous `hot spots' on the roof and exterior wall," id., at 1047. We granted certiorari.
This gives us our overview, and establishes exactly what happened. Agent Elliot, acting on suspicion alone--not probable cause--scanned a private residence with a thermal imager to detect the heat lamps involved in the growing of marijuana plants. Mr. Kyllo's house was "targeted" by Agent Elliot without a prior warrant. Suspicion doesn't equal probable cause. Nor does it merit a warrant. Only with the informants statements, utility bills, and the imaging, Agent Elliot obtained the warrant. Minus the thermal imgaging, he might have received a warrant. That was not determined in the opinion.
On the other hand, the antecedent question of whether or not a Fourth Amendment "search" has occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance of a home used to be clear because, well into the 20th century, our Fourth Amendment jurisprudence was tied to common-law trespass. See, e.g., Goldman v. United States, Olmstead v. United States, Cf. Silverman v. United States, supra, at 510-512 (technical trespass not necessary for Fourth Amendment violation; it suffices if there is "actual intrusion into a constitutionally protected area"). Visual surveillance was unquestionably lawful because " `the eye cannot by the laws of England be guilty of a trespass.' " Boyd v. United States, (1886) (quoting Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765)). We have since decoupled violation of a person's Fourth Amendment rights from trespassory violation of his property, see Rakas v. Illinois, (1978), but the lawfulness of warrantless visual surveillance of a home has still been preserved. As we observed in California v. Ciraolo, "[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares."
One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a "search" despite the absence of trespass, is not an "unreasonable" one under the Fourth Amendment. See Minnesota v. Carter, (1998) (Breyer, J., concurring in judgment). But in fact we have held that visual observation is no "search" at all--perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional. See Dow Chemical Co. v. United States, (1986). In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States, Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth--a location not within the catalog ("persons, houses, papers, and effects") that the Fourth Amendment protects against unreasonable searches. We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably relied" upon the privacy of the telephone booth. Id., at 353. As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. See id., at 361. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur--even when the explicitly protected location of a house is concerned--unless "the individual manifested a subjective expectation of privacy in the object of the challenged search," and "society [is] willing to recognize that expectation as reasonable." Ciraolo, supra, at 211. We have applied this test in holding that it is not a search for the police to use a pen register at the phone company to determine what numbers were dialed in a private home, Smith v. Maryland, and we have applied the test on two different occasions in holding that aerial surveillance of private homes and surrounding areas does not constitute a search, Ciraolo, supra; Florida v. Riley.
OK, we have the instances in which search is legal involving warrants and without warrants. This is integral to the argument. Based on Kyllo's win within the court, we can reasonably assume "electronic" eavesdropping of any sort, relating to a US citizen, requires a warrant. Based on Kyllo, this also includes anything of a "scanning" nature, as the thermal imager basically takes a scan of the area pointed at--a specific area, such as a house. Therefore, a targeted surveillance would require a warrant, but what if it weren't "specific"? Kyllo's main argument revolves around a specific target: His home. Nothing, as according to Justice Scalia's recounting of the case, helped that case more than anything than the thermal imager. It confirmed specifics: It was the hottest area of the house, the imaging was consistent with the types of lights used in such an operation, it was the "hottest" house in the vicinity. Coupled with informants, this can provide a warrant.
However, because it was so specific, the Supreme Court ruled that a warrant was needed. And rightly so. To remain true to what was created through precedent, it was only obvious to rule this way. BUT, this case (if it can be called a case) deals with a wide area. A wide area was to be targeted. And, as the above states, this was based on FBI investigations.
If one is to consider Kyllo a base factor in warrants and searches revolving around electronic surveillance, then there is next to no case involved here. Specifics are what the court would have to evaluate; to conduct a broad-range monitoring of, say a ten-block radius, is law enforcement to go out and obtain a search warrant for each and every structure and domicile in that radius? Honestly, we are dealing with people who are willing to strike on a moment's notice with the idea of creating the maximum amount of damage, with the maximum body count they can muster, with little notice. The 11 Sept. hijackers had short notice to begin the execution of their plan. Days in that case, but what if the next one is in a matter of hours? What if such a move by law enforcement could set them in motion earlier. We are dealing with careful, precisioned fanatics.
I know I've been "rambling" a bit here, but I'm sure that, based on the facts thus far, and based on the jurisprudence involved in this particular issue, the government isn't breaking the law. It's still within the powers of the president to conduct this monitoring. For all the one-world, Brownshirt-wearing, goose-stepping conspiracy nuts out there (that would be the relevent moonbat crowd) this is not an extra-Constitutional power. The president is allowed, under the Constiution's enumeration of his powers, to command the intelligence agencies of this nation to "watch over" any sort of suspicious activity that could lead to the conclusion a terrorist cell is within the US, or that someone is collaborating with one, or out enemy. The people involved in these surveillance nets are foreign agents that are intent on hurting this nation. I'm sick of hearing about "civil liberties violations" and "Big Brother." It's not happening. Get over it already. Presidents of the past have used this exact same power, under similar "emergencies," if it's to be called that.
We are at war. The president's mandate is to protect the nation. If he was acting one whit below what he has done, thus far, I'd think less of him. He understands. He knows that people are out there that are willing to hurt us. This isn't "scaredy-cat" rhetoric. I'm going out into the world everday. I'm not afraid. But I do know the steps the government is taking to protect the nation. They are remaining, as the old adage goes "ever vigilant." It is, after all, the price paid for freedom.
Publius II
As promised, a bit more news has come out regarding this story. This story was in the East Valley Tribune this morning (that's one of our local papers). Unfortunately, it was available only in the print version of the paper. However, I found the same, identical story on Newsday.com. It comes from the AP Wire Service. The entire piece is cited below with my running commentary on key points.
http://www.newsday.com/news/politics/wire/sns-ap-domestic-surveillance,0,3518810.story
A classified radiation monitoring program, conducted without warrants, has targeted private U.S. property in an effort to prevent an al-Qaida attack, federal law enforcement officials confirmed Friday.
While declining to provide details including the number of cities and sites monitored, the officials said the air monitoring took place since the Sept. 11 attacks and from publicly accessible areas -- which they said made warrants and court orders unnecessary.
OK. Now we have an answer to an important question, that being what sort of monitoring was conducted. This was a wide-scope monitoring of areas suspected of possibly having a nuclear device.
U.S. News and World Report first reported the program on Friday. The magazine said the monitoring was conducted at more than 100 Muslim sites in the Washington, D.C., area -- including Maryland and Virginia suburbs -- and at least five other cities when threat levels had risen: Chicago, Detroit, Las Vegas, New York and Seattle.
The magazine said that at its peak, three vehicles in Washington monitored 120 sites a day, nearly all of them Muslim targets identified by the FBI. Targets included mosques, homes and businesses, the magazine said.
Fo all those out there ready to decry this as profiling, or bigoted of some sort, I must remind people that we moved on this based on intelligence we had in hand. We know full well of the weapons caches discovered in Afghanistan and Iraq in mosques. These animals may try to put the facade on the idea that these are "holy places," but in my humble opinion, they defiled it by instigating violence from them, and storing weapons in them. We have taken great care not to intentionally damage mosques that terrorists hold themselves up in, but when we take fire from them, we return fire. Likewise, in the targeting of these sites, it was obvious that the FBI had a legitimate reason for choosing them. This was not done on a whim.
The revelation of the surveillance program came just days after The New York Times disclosed that the Bush administration spied on suspected terrorist targets in the United States without court orders. President Bush has said he approved the program to protect Americans from attack.
Ibrahim Hooper, spokesman for the Council on American-Islamic Relations, a Washington-based civil rights group, said Friday the program "comes as a complete shock to us and everyone in the Muslim community."
"This creates the appearance that Muslims are targeted simply for being Muslims. I don't think this is the message the government wants to send at this time," he said.
To Mr. Hooper: The US has taken every step to separate peace-loving Muslims from the terrorist fanatics abraod. However, he must also understand that we have already arrested a few Muslims in this nation for being a part of cells that originate from these mosques. Lodi, CA, anyone? How about the cell caught in Buffalo that the FBI connected them to the mosque in their area that did preach anti-American, anti-Israeli, pro-jihadist rhetoric? Do not level the accusation at the US for doing it's job when you refuse to acknowledge that your house is in disarray.
Hooper said his organization has serious concerns about the constitutionality of monitoring on private property without a court order.
Brian Roehrkasse, a Justice Department spokesman, said Friday that the administration "is very concerned with a growing body of sensitive reporting that continues to show al-Qaida has a clear intention to obtain and ultimately use chemical, biological, radiological and nuclear" weapons or high energy explosives.
To meet that threat, the government "monitors the air for imminent threats to health and safety," but acts only on specific information about a potential attack without targeting any individual or group, he said.
And this is key to the whole question regarding it's legality. No specific sites were targeted. This was a broad-range scan that was conducted. We're talking about the monitoring of city blocks, not one specific site.
"FBI agents do not intrude across any constitutionally protected areas without the proper legal authority," the spokesman said.
In a 2001 decision, the Supreme Court ruled 5-4 that police must get warrants before using devices that search through walls for criminal activity. That decision struck down the use without a warrant of a heat-sensing device that led to marijuana charges against an Oregon man.
This is Kyllo that is being cited, which I think isn't technically relevent for one specific reason. In Kyllo, the court was rendering a decision regarding a "targeted" search. The police had used thermal-imaging equipment to peek inside the defendant's home. This case can't have that ruling or logic applied to it. The "search" that everyone is going bonkers about was wide-ranging. No specific targets were named or mentioned. It was a sweep. That is no different than the air-testing that goes on by the government.
Roehrkasse said the Justice Department believes that case does not apply to air monitoring in publicly accessible areas.
Mr. Roehrkasse is correct. All of the areas that are in question are technically public areas. Anyone can access them during "business hours."
Two federal law enforcement officials, speaking on condition of anonymity because the program is classified, said the monitoring did not occur only at Muslim-related sites.
There goes the bigotry charge. Even if it was predominantly Muslim sites, there were other sites scanned. Mr. Roehrkasse has already stated that the FBI didn't overstep it's Constitutional boundaries.
Douglas Kmiec, a professor of constitutional law at Pepperdine University, said the location of the surveillance matters when determining if a court order is needed.
"The greatest expectation of privacy is in the home," said Kmiec, a Justice Department official under former presidents Ronald Reagan and George H.W. Bush. "As you move away from the home to a parking lot or a place of public accommodation or an office, there are a set of factors that are a balancing test for the court," he said.
Yes, but the balance is swept onto the side of the government, and it's program. If we are talking about a home, again, the controlling factor is whether or not they're a US citizen. If they aren't, we go back to the Constitutional protections that don't exist for non-citizens. If they are a citizen, a warrant must be obtained. But when you remove the "home" from the equation, and this moves to "public places," then the program is safe, and no laws have been broken.
Despite federal promises to inform state and local officials of security concerns, that never formally happened with the radiation monitoring program, said an official who spoke on condition of anonymity because of the sensitivity of the information.
The official said that after discussions with attorneys, some state and local authorities decided the surveillance was legal, equating it to air quality monitors set up around Washington that regularly sniff for suspicious materials.
Thank you. There's the air quality monitors I cited earlier. These sorts of monitors, whether in trucks or on helicopters, are no different. And the government, again, has the right to monitor the nation to prevent an attack. It's not secret that these Islamo-facists want to get their hands on a WMD, and hit us with it. We need to take greater care in assuring that none reach our shores. If one does, we must find it and deal with it quickly.
"They weren't targeting specific people, they were just doing it by random, driving around (commercial) storage sheds and parking lots," the official said.
Asked about the program's status, the official said, "I'd understood it had been stopped or significantly rolled back" as early as eight months ago.
Such information-sharing with state and local officials is the responsibility of the Homeland Security Department, which spokesman Brian Doyle said was not involved in the program.
OK, so we know that this monitoring program did include Muslims sites, and other sites. Storage sheds and parking lots were also checked. The monitoring can be targeted, but it's also a wide-ranging monitoring system that could cover several areas at once. It's sole purpose was to "sniff" out radiation; essentially looking for a radiological device or devices.
The FBI, who was in charge of this operation, stated that they have stayed within their Constitutional boundaries; that if a warrant were needed, they would have obtained one, and no one's civil liberties were violated. Now, of course, if there's an investigation into this, that will be up to Congress to determine. But, I'm apt to agree that the FBI would obtain a warrant if one were needed. Let's face it, this isn't the Clinton White House searching out political adversaries; this is the Bush White House in the middle of a war trying to protect the nation.
As it stands now, with this new bit of information regarding this program, I'd have to say that there is nothing illegal about what the government is doing. As a matter of fact, this looks more and more like the New York Times story about the NSA surveillance program. Further, with the president already trying to defend one program, this looks more like an MSM hit-piece to discredit him, and using the NSA story to add fuel to thei fire.
Needless to say, ladies and gentlemen, I smell a rat, and it's name is the MSM. And had they taken the time to actually research the law, and the cases involved, they would have seen that this is literally, much ado about nothing. (WE have read United States. v. United States District Court, Kyllo, repeatedly read FISA, and the decisions regarding FISA. Nothin under any of them would prevent such a scan. It's wide-range, and not specifically targeting a structure.)
On a side note, for those that are willing to argue the merits of Kyllo in this situation, let me cite some key points by Justice Scalia, who wrote the majority opinion.
In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires high-intensity lamps. In order to determine whether an amount of heat was emanating from petitioner's home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmth--black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. The scan of Kyllo's home took only a few minutes and was performed from the passenger seat of Agent Elliott's vehicle across the street from the front of the house and also from the street in back of the house. The scan showed that the roof over the garage and a side wall of petitioner's home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex. Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house, which indeed he was. Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner's home, and the agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of manufacturing marijuana, in violation of 21 U. S. C. ยง841(a)(1). He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea.
The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. On remand the District Court found that the Agema 210 "is a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house"; it "did not show any people or activity within the walls of the structure"; "[t]he device used cannot penetrate walls or windows to reveal conversations or human activities"; and "[n]o intimate details of the home were observed." Supp. App. to Pet. for Cert. 39-40. Based on these findings, the District Court upheld the validity of the warrant that relied in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially reversed, 140 F. 3d 1249 (1998), but that opinion was withdrawn and the panel (after a change in composition) affirmed, 190 F. 3d 1041 (1999), with Judge Noonan dissenting. The court held that petitioner had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, id., at 1046, and even if he had, there was no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only "amorphous `hot spots' on the roof and exterior wall," id., at 1047. We granted certiorari.
This gives us our overview, and establishes exactly what happened. Agent Elliot, acting on suspicion alone--not probable cause--scanned a private residence with a thermal imager to detect the heat lamps involved in the growing of marijuana plants. Mr. Kyllo's house was "targeted" by Agent Elliot without a prior warrant. Suspicion doesn't equal probable cause. Nor does it merit a warrant. Only with the informants statements, utility bills, and the imaging, Agent Elliot obtained the warrant. Minus the thermal imgaging, he might have received a warrant. That was not determined in the opinion.
On the other hand, the antecedent question of whether or not a Fourth Amendment "search" has occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance of a home used to be clear because, well into the 20th century, our Fourth Amendment jurisprudence was tied to common-law trespass. See, e.g., Goldman v. United States, Olmstead v. United States, Cf. Silverman v. United States, supra, at 510-512 (technical trespass not necessary for Fourth Amendment violation; it suffices if there is "actual intrusion into a constitutionally protected area"). Visual surveillance was unquestionably lawful because " `the eye cannot by the laws of England be guilty of a trespass.' " Boyd v. United States, (1886) (quoting Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765)). We have since decoupled violation of a person's Fourth Amendment rights from trespassory violation of his property, see Rakas v. Illinois, (1978), but the lawfulness of warrantless visual surveillance of a home has still been preserved. As we observed in California v. Ciraolo, "[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares."
One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a "search" despite the absence of trespass, is not an "unreasonable" one under the Fourth Amendment. See Minnesota v. Carter, (1998) (Breyer, J., concurring in judgment). But in fact we have held that visual observation is no "search" at all--perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional. See Dow Chemical Co. v. United States, (1986). In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States, Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth--a location not within the catalog ("persons, houses, papers, and effects") that the Fourth Amendment protects against unreasonable searches. We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably relied" upon the privacy of the telephone booth. Id., at 353. As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. See id., at 361. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur--even when the explicitly protected location of a house is concerned--unless "the individual manifested a subjective expectation of privacy in the object of the challenged search," and "society [is] willing to recognize that expectation as reasonable." Ciraolo, supra, at 211. We have applied this test in holding that it is not a search for the police to use a pen register at the phone company to determine what numbers were dialed in a private home, Smith v. Maryland, and we have applied the test on two different occasions in holding that aerial surveillance of private homes and surrounding areas does not constitute a search, Ciraolo, supra; Florida v. Riley.
OK, we have the instances in which search is legal involving warrants and without warrants. This is integral to the argument. Based on Kyllo's win within the court, we can reasonably assume "electronic" eavesdropping of any sort, relating to a US citizen, requires a warrant. Based on Kyllo, this also includes anything of a "scanning" nature, as the thermal imager basically takes a scan of the area pointed at--a specific area, such as a house. Therefore, a targeted surveillance would require a warrant, but what if it weren't "specific"? Kyllo's main argument revolves around a specific target: His home. Nothing, as according to Justice Scalia's recounting of the case, helped that case more than anything than the thermal imager. It confirmed specifics: It was the hottest area of the house, the imaging was consistent with the types of lights used in such an operation, it was the "hottest" house in the vicinity. Coupled with informants, this can provide a warrant.
However, because it was so specific, the Supreme Court ruled that a warrant was needed. And rightly so. To remain true to what was created through precedent, it was only obvious to rule this way. BUT, this case (if it can be called a case) deals with a wide area. A wide area was to be targeted. And, as the above states, this was based on FBI investigations.
If one is to consider Kyllo a base factor in warrants and searches revolving around electronic surveillance, then there is next to no case involved here. Specifics are what the court would have to evaluate; to conduct a broad-range monitoring of, say a ten-block radius, is law enforcement to go out and obtain a search warrant for each and every structure and domicile in that radius? Honestly, we are dealing with people who are willing to strike on a moment's notice with the idea of creating the maximum amount of damage, with the maximum body count they can muster, with little notice. The 11 Sept. hijackers had short notice to begin the execution of their plan. Days in that case, but what if the next one is in a matter of hours? What if such a move by law enforcement could set them in motion earlier. We are dealing with careful, precisioned fanatics.
I know I've been "rambling" a bit here, but I'm sure that, based on the facts thus far, and based on the jurisprudence involved in this particular issue, the government isn't breaking the law. It's still within the powers of the president to conduct this monitoring. For all the one-world, Brownshirt-wearing, goose-stepping conspiracy nuts out there (that would be the relevent moonbat crowd) this is not an extra-Constitutional power. The president is allowed, under the Constiution's enumeration of his powers, to command the intelligence agencies of this nation to "watch over" any sort of suspicious activity that could lead to the conclusion a terrorist cell is within the US, or that someone is collaborating with one, or out enemy. The people involved in these surveillance nets are foreign agents that are intent on hurting this nation. I'm sick of hearing about "civil liberties violations" and "Big Brother." It's not happening. Get over it already. Presidents of the past have used this exact same power, under similar "emergencies," if it's to be called that.
We are at war. The president's mandate is to protect the nation. If he was acting one whit below what he has done, thus far, I'd think less of him. He understands. He knows that people are out there that are willing to hurt us. This isn't "scaredy-cat" rhetoric. I'm going out into the world everday. I'm not afraid. But I do know the steps the government is taking to protect the nation. They are remaining, as the old adage goes "ever vigilant." It is, after all, the price paid for freedom.
Publius II
posted by Syd And Vaughn | 8:02 PM
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