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Constitutional Searches From Space – Part II: Kyllo v. United States, California v. Ciraolo, And Satellites as Sense-Enhancing Devices

by Tyler Pittman

This post is part of the student blogger project from the summer session of Space Security Law.

Tyler Pittman is a 2L at the University of Mississippi School of Law. He is fascinated by American criminal law, by space law, and by international law. He is pursuing certificates in Space Law and Criminal law at Ole Miss.

As explained in Part I, California v. Ciraolo1 suggests that police observation of a home through satellite photo imagery would not constitute a Fourth Amendment search. The primary question this raises is how the Katz analysis applies to those situations and how to deal with new issues technology forces on the law. As it stands under Ciraolo, there is no reasonable expectation of privacy2 in uncovered areas of the home and its curtilage, but Ciraolo only speaks to areas outside the structure of the home (i.e. fenced in back yard). Fifteen years after Ciraolo, in 2001, the Supreme Court addressed another issue involving the Fourth Amendment and technology-based searches that has a significant effect on Fourth Amendment analyses when meshed with Ciraolo. In Kyllo v. United States,3 the Court held that using a sense-enhancing device not in general public use to obtain information from inside a home that would otherwise only be obtainable with physical intrusion is a search under the Fourth Amendment and is de facto unreasonable without a warrant.4 The questions that arise from Kyllo, like that of Ciraolo, build on the second prong of the Katz5 analysis.

Kyllo involved a search of a private home by police using a thermal imaging device from public areas outside the home. The police used the imaging device in the dark hours of early morning to detect abnormal heat radiating from inside the home. Detecting the heat would support suspicions of an indoor marijuana-growing operation and thus support the police’s probable cause requirement for a search warrant. The police did detect abnormal heat emissions and obtained a warrant using this information. The defendant challenged the validity of the search due to the use of a thermal imaging device, and the Supreme Court held the search unconstitutional. The Court reasoned that the thermal imaging device peered into the home in ways that would otherwise require physical intrusion and was analogous to police entering the home without a warrant.

The broader issue this case presents is the effect it and Ciraolo have on the Katz analysis as applied to searches from space. If the two are simultaneously applied to a situation in which a home is observed from space, the outcome is complicated because Kyllo affects the Ciraolo analysis. Kyllo is narrowly tailored to technology not in general public use that peers inside the home and observes things the naked eye could not. This would seem to apply equally to space technology, and the Court’s reasoning, that the issue is with sense-enhancing technology allowing for intrusions not otherwise possible, suggests that a reasonable expectation of privacy exists in situations where sense-enhancing technology would be required for observation or obtaining information without close proximity or physical presence. Ciraolo actually supports this thought.

In Ciraolo, the police flyover was at 1,000 feet and an officer used a standard 35-millimeter camera for records.6 The officers identified the marijuana with their naked eye.7 Assuming Kyllo can be extended beyond the home, adding it to the Ciraolo holding would not change the outcome because there was no sense-enhancing device used. The first pertinent change comes when the observation is from an altitude much higher than that in Ciraolo, that is, when the observation or information gathering takes place from space. Since a central focus of Kyllo is technology enhancing human senses, the observing of an uncovered back yard through satellite imagery would violate the sense-enhancing device part of the Kyllo holding – remote sensing technology is necessarily sense-enhancing. Under this, two further questions arise, one involving whether Kyllo applies only to the home or can be extended, and the other involving the ‘general public use’ restriction.

If Kyllo cannot be extended beyond the home, it is likely that a situation in which a home is observed from space would be seen as analogous to Ciraolo. But the dicta in Kyllo suggests that the purpose of the decision was to leave room for situations presented by new technologies and new uses of technology.8 If that in fact is the case, Ciraolo would probably be restricted to cases involving aerial observation where no sense-enhancing devices were used, and the Kyllo analysis would control those situations and more where sense-enhancing devices were used. In effect, a modified Kyllo analysis would be the applicable law when presented with questions of observation or information gathering from space. In order to satisfy the objective prong of Katz, the modified Kyllo analysis would need to show that the sense-enhancing device did not make possible anything that would not have been possible otherwise.9 In essence, this means that a reasonable expectation of privacy would have to exist in the object of the search regardless of the use of sense-enhancing devices.

What then becomes an obstacle in analysis is the ‘general public use’ restriction.10 In order to prevent circular reasoning where Kyllo leads to Ciraolo and vice versa, ‘general public use’ would first need to be defined. As technology develops, it becomes more and more available to the public. If a technology is in general public use, the sense-enhancing aspects no longer affect the analysis under Kyllo, and it seems that Ciraolo would be more applicable based on the public vantage point aspect of the holding. Allowing an obstacle like this to remain in the analysis makes any clear delineation of law even more difficult and allows for much more litigation by forcing courts to decide each case on more fact-specific analyses.

The effects of these cases on each other and Fourth Amendment search analysis show that the current law is not quite clear on when and where a reasonable expectation of privacy from a spatial vantage point exists. If Kyllo cannot be extended beyond the home, the problems arising under the Ciraolo analysis come back into play. In order to have more practicable, clearer law regarding searches from space, it seems that a modified Kyllo analysis is the best response.
1 476 U.S. 207, 106 S.Ct. 1809 (1986); See also Dow Chemical Co. v. U.S., 476 U.S. 227, 239, 106 S.Ct. 1819, 1827 (1986)
2 Katz v. United States, , 389 U.S. 347, 360, 88 S.Ct. 507, 516 (1967) (J. Harlan concurring)
3 533 U.S. 27, 121 S.Ct. 2038 (2001)
4 533 U.S. at 40, 121 S.Ct. at 2046
5 Katz, 389 U.S. at 360, 88 S.Ct. at 516 (J. Harlan concurring)
6 Ciraolo, 476 U.S. at 209, 106 S.Ct. at 1810
7 Id; See also Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693 (1989) (holding naked eye police observation from 400 foot altitude did not constitute a search)
8 Kyllo, 533 U.S. at 37, 121 S.Ct. 2044 (Footnote 3)
9 This is similar to 4th Amendment inevitable discovery doctrine. The idea here would be that although the sense-enhancing device was used, the information could have been obtained without it in another, independent way not involving a sense-enhancing device. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984).
10 The Court says in dicta that further limiting the decision would be impractical in application. Ironically, ‘general public use’ is left undefined.