LAW 393 Lecture Notes - Lecture 4: Thermal Imaging Camera, John Paul Stevens, United States Magistrate Judge
Does the Fourth Amendment of the Constitution protect telephone conversations conducted in a phone
booth and secretly recorded from introduction as evidence against a person?
Even in a public place, a person may have a reasonable expectation of privacy in his person. Although
the petitioner did not seek to hide his self from public view when he entered the telephone booth, he
did seek to keep out the uninvited ear. He did not relinquish his right to do so simply because he went to
a place where he could be seen. A person who enters into a telephone booth may expect the protection
of the Fourth Amendment of the Constitution as he assumes that the words he utters into the telephone
will not be broadcast to the world. Once this is acknowledged, it is clear that the Fourth Amendment of
the Constitution protects persons and not areas from unreasonable searches and seizures. The
Government's activities in electronically listening to and recording the petitioner's telephone
conversations constituted a search and seizure under the Fourth Amendment and absent a search
warrant predicated upon sufficient probable cause, all evidence obtained is inadmissible.
Facts of Katz?
Telephone Booth and question of reasonable privacy
Case on improper GPS on car for 30 days without a search warrant?
United States v. Jones
Why is an extended search an issue?
Extends into an a possible investigatory purpose
Facts of United States v. Jones?
Respondent Jones was an owner and operator of a nightclub and came under suspicion of narcotics
trafficking. Based on information gathered through various investigative techniques, police were
granted a warrant authorizing use of a GPS tracking device on the Jeep registered to Jones' wife (of
which Jones was the exclusive driver), but failed to comply with the warrant's deadline. Officials
nevertheless installed the device on the undercarriage of the Jeep and used it to track the vehicle's
movements. By satellite, the device established the vehicle's location within 50 to 100 feet and
communicated the location by cell phone to a government computer, relaying more than 2,000 pages of
data over a 28-day period. The government ultimately obtained an indictment against Jones which
included charges of conspiracy to distribute cocaine.
Did the warrantless use of a tracking device on Jones's vehicle to monitor its movements on public
streets violate Jones' Fourth Amendment rights? Case?
Based on United States v. Jones, Yes
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The Court affirmed the judgment of the lower court, and held that the installation of a GPS tracking
device on Jones' vehicle, without a warrant, constituted an unlawful search under the Fourth
Amendment. The Court rejected the government's argument that there is no reasonable expectation of
privacy in a person's movement on public thoroughfares and emphasized that the Fourth Amendment
provided some protection for trespass onto personal property.
Facts of Kyllo v. United States?
A Department of the Interior agent, suspicious that Danny Kyllo was growing marijuana, used a thermal-
imaging device to scan his triplex. The imaging was to be used to determine if the amount of heat
emanating from the home was consistent with the high-intensity lamps typically used for indoor
marijuana growth. Subsequently, the imaging revealed that relatively hot areas existed, compared to
the rest of the home. Based on informants, utility bills, and the thermal imaging, a federal magistrate
judge issued a warrant to search Kyllo's home. The search unveiled growing marijuana. After Kyllo was
indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized from his
home and then entered a conditional guilty plea. Ultimately affirming, the Court of Appeals held that
Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the
heat escaping from his home, 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."
Does the use of a thermal-imaging device to detect relative amounts of heat emanating from a private
home constitute an unconstitutional search in violation of the Fourth Amendment? Case?
Yes, per Kyllo
The Court held that "[w]here, as here, the Government uses a device that is not in general public use, to
explore details of the home that would previously have been unknowable without physical intrusion, the
surveillance is a 'search' and is presumptively unreasonable without a warrant." In dissent, Justice John
Paul Stevens argued that the "observations were made with a fairly primitive thermal imager that
gathered data exposed on the outside of [Kyllo's] home but did not invade any constitutionally
protected interest in privacy," and were, thus, "information in the public domain."
Facts of Riley v. California?
David Leon Riley belonged to the Lincoln Park gang of San Diego, California. On August 2, 2009, he and
others opened fire on a rival gang member driving past them. The shooters then got into Riley's
Oldsmobile and drove away. On August 22, 2009, the police pulled Riley over driving a different car; he
was driving on expired license registration tags. Because Riley's driver's license was suspended, police
policy required that the car be impounded. Before a car is impounded, police are required to perform an
inventory search to confirm that the vehicle has all its components at the time of seizure, to protect
against liability claims in the future, and to discover hidden contraband. During the search, police
located two guns and subsequently arrested Riley for possession of the firearms. Riley had his cell phone
in his pocket when he was arrested, so a gang unit detective analyzed videos and photographs of Riley
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making gang signs and other gang indicia that were stored on the phone to determine whether Riley
was gang affiliated. Riley was subsequently tied to the shooting on August 2 via ballistics tests, and
separate charges were brought to include shooting at an occupied vehicle, attempted murder, and
assault with a semi-automatic firearm.
Before trial, Riley moved to suppress the evidence regarding his gang affiliation that had been acquired
through his cell phone. His motion was denied. At trial, a gang expert testified to Riley's membership in
the Lincoln Park gang, the rivalry between the gangs involved, and why the shooting could have been
gang-related. The jury convicted Riley on all three counts and sentenced to fifteen years to life in prison.
The California Court of Appeal, Fourth District, Division 1, affirmed.
Was the evidence admitted at trial from a cell phone discovered through a "search that violated a
Fourth Amendment right to be free from unreasonable searches"?
Yes, per Riley.
Chief Justice John G. Roberts, Jr. wrote the opinion for the unanimous Court. The Court held that the
warrantless search exception following an arrest exists for the purposes of protecting officer safety and
preserving evidence, neither of which is at issue in the search of digital data. The digital data cannot be
used as a weapon to harm an arresting officer, and police officers have the ability to preserve evidence
while awaiting a warrant by disconnecting the phone from the network and placing the phone in a
"Faraday bag." The Court characterized cell phones as minicomputers filled with massive amounts of
private information, which distinguished them from the traditional items that can be seized from an
arrestee's person, such as a wallet. The Court also held that information accessible via the phone but
stored using "cloud computing" is not even "on the arrestee's person." Nonetheless, the Court held that
some warrantless searches of cell phones might be permitted in an emergency: when the government's
interests are so compelling that a search would be reasonable.
Take away from Riley (per Carter's notes)?
Phone data cannot be used as a weapon
Does a city employee have a reasonable expectation of privacy in text messages transmitted on his city-
issued pager when the police department has no official privacy policy for the pagers?
Not truly answered, but . . .
The Supreme Court held that the City of Ontario did not violate its employees' Fourth Amendment rights
because the city's search of Mr. Quon's text messages was reasonable. With Justice Anthony M.
Kennedy writing for the majority, the Court reasoned that even assuming that Mr. Quon had a
reasonable expectation of privacy in his text messages, the city's search of them was reasonable
because it was motivated by a legitimate work-related purpose and was not excessive in scope.
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