Technology, the Fourth Amendment, and the Drug War

The United States Supreme Court’s jurisprudence on the Fourth Amendment is hopelessly naive, incoherent, and stupefying. Chalk that up to the Drug War, which for forty years has been a tool by both drug warriors and government officials to expand the government’s power to conduct searches.

Let’s take one example: Kyllo v. US, 533 US 27 (2001).

The Department of the Interior used a thermal imaging device outside Danny Lee Kyllo’s home which could not penetrate the walls or windows to reveal conversations or human movement, but could only record heat emitted from the home. The police were looking for evidence of a hydroponic marijuana grow operation, indicative of marijuana drug trafficking.

The observations of heat emanating from a part of the house formed the sole basis of the probable cause that gave police the authority to then raid the house pursuant to a search warrant.

The Court held: “Where, as here, the Government uses a device that is not 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.”

In other words, the Court held that the thermal surveillance was itself a search that had been conducted without a warrant. The search was presumptively unreasonable given its warrantless nature, and the Court ultimately held that it was in fact illegal because the equipment used was not readily available to the general public.

In a second, related example: Florida v. Riley, 488 U.S. 445 (1989).

A Florida sheriff received a tip that a man was growing marijuana behind his mobile home. Unable to see in the greenhouse, the sheriff ordered a helicopter to fly over the property at a relatively low altitude. The sheriff could observe through his own observations – two panels were missing on the top of the greenhouse allowing him a view into the greenhouse from above – that marijuana was indeed growing inside. A warrant was obtained, and the man was charged with having a grow operation.

(Ignore, for a moment, whether the sheriff could really determine at any significant height whether in fact the plants were marijuana.)

In both cases, the Supreme Court held that the reasonableness of the search in the context of existing technologies – whether the general public would have access to thermal imaging equipment or whether the general public would expect a low-flying aircraft.

In 1990 or 2000, the idea that the general public would have access to these or similar technologies was far-fetched. Not so today.

Drone aircraft have been used increasingly in Iraq and Afghanistan to conduct assassination operations by the U.S. Government. Drone aircraft are also an increasingly common in civilian settings. Police departments – through federal grants – are getting access to the equipment. The University of North Dakota is evening offering a major in how to pilot drone aircraft.

Hobbyist groups allow regular people to acquire and fly drones.

Criminals have even gotten into the act, attempting to smuggle cell phones into a Brazilian prison through the use of an unmanned (and untraceable) vehicle.

I predict that over time, the Supreme Court will use these developments as an reason (excuse?) to grant the government even greater surveillance powers.

All in the name of keeping the country pot-free. Even though there is broad support for marijuana legalization.

And even at least 10 percent of Americans regularly smoke marijuana, and roughly 40 percent of all Americans have used marijuana in their lifetimes. And that marijuana has few addictive properties, and that marijuana is as much a gateway to harsher drugs and tobacco or alcohol are. And on and on.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.