U.S. v. Kattaria, 06-3903 (8^th Cir., Oct. 5, 2007)

It just got a lot easier for police to use thermal imaging to find out who is growing pot on their property, at least in the Eighth Circuit. The practice was dramatically scaled six years ago, after a narrow majority of the Supreme Court held that police needed a warrant in order to conduct thermal imaging on people’s private property. But the Court’s decision in Kyllo v. U.S. did not explicitly state that police needed probable cause to obtain a thermal imaging warrant.

Now perhaps one would expect - given the explicit text of the Fourth Amendment - that probable cause would be required for a thermal imaging warrant. But in a radical decision, a panel of the Eighth Circuit holds that police should be able to obtain a warrant based on the same level of suspicion necessary to justify a Terry stop, i.e. reasonable suspicion that criminal activity is afoot. The panel reasons that, like an investigatory stop, checking the heat emissions of private property is a brief investigatory step that does not merit the full Fourth Amendment protection of probable cause.

In my view, the Eighth’s decision to glom Terry onto Kyllo would be laughable, if it weren’t such a disgrace. It’s worth noting that today’s decision cites the four-judge dissent that Stevens authored in Kyllo. Is the panel assuming that Stevens could now get a fifth vote from the Roberts court? If so, they might want to take a look at how the votes lined up in Kyllo.

Posted Fri, 05 Oct 2007 10:50:44 and filed under Fourth Amendment, Decision of the Day. You can leave a response, or trackback from your own site.