Posted by Orin Kerr:
En Banc Eighth Circuit Backs Off Holding Allowing Thermal Imaging Device With
Reasonable Suspicion:
http://volokh.com/archives/archive_2009_01_25-2009_01_31.shtml#1233339855
I had criticized the 8th Circuit's panel decision in United States v.
Kattaria [1]here, back in October 2007, and [2]today the en banc court
handed down a new decision that allows the evidence without reaching
the issue of whether the police can get a "reasonable suspicion
warrant" to use an imaging device (effectively removing the panel's
holding from the books).
Chief Judge Loken, the author of the original panel decision, adds
in a concurrence that partly sticks to his guns from the original
panel holding but partly would amend it. Loken argues that the
relevant Supreme Court precedents should be read relatively narrowly
in a way that leaves open whether a lower standard than probable cause
is allowed. He then writes:
On further reflection, I have concluded that the panel was unwise
to borrow the concept of "reasonable suspicion" to reflect the
quantum of probable cause that should be required in this
situation. Reasonable suspicion is not focused to the task at hand,
and it has never been applied to the warrant-issuing process.
Rather, the question for the issuing magistrate (and reviewing
courts) when considering an application like Agent Perry�s initial
warrant affidavit should be whether there is probable cause to
believe that search of specific property -- the heat being emitted
from a home -- in a specific manner -- by exterior thermal imaging
-- for purely investigative purposes will uncover evidence of
on-going criminal activity. Utility records showing abnormally high
electric power usage are strong evidence supporting such an
application but, without more, are unlikely to establish probable
cause because of the many innocent uses of electricity. Cf. United
States v. Olson, 21 F.3d 847, 850 (8th Cir.), cert. denied, 513
U.S. 888 (1994). But the �something more� should simply be enough
particularized suspicion to justify the minimal intrusion caused by
the exterior thermal imaging of heat emissions, without regard to
whether there is probable cause to issue a warrant to conduct a
full physical search.
I'm not sure I understand this. On one hand, the standard for
probable cause is probable cause to believe that the actual search
that will be conducted will uncover the evidence described in the
warrant based on the actual place that will be searched. As a result,
the normal probable cause standard to justify use of a thermal imaging
device should be what Loken describes in the middle of the paragraph
above: "probable cause to believe that search of specific property --
the heat being emitted from a home -- in a specific manner -- by
exterior thermal imaging -- for purely investigative purposes will
uncover evidence of on-going criminal activity."
But I'm not sure I follow the idea of permitting a warrant based on
"enough particularized suspicion to justify the minimal intrusion
caused by the exterior thermal imaging of heat emissions, without
regard to whether there is probable cause to issue a warrant to
conduct a full physical search." Probable cause to issue a warrant to
conduct a full physical search would mean probable cause to believe
that a full physical search would provide the evidence described in
the warrant. That won't necessarily be the same as PC to use the
imaging device, of course. But it won't necessarily be a harder
standard to meet, either: It depends on the investigation and what the
police know, and it could be easier or hard to meet depending on the
facts. To the extent Judge Loken would want courts to apply a lower
standard of probable cause, one that factors in the minimial intrusion
of imaging devices relative to full physical searches, I don't think
the Fourth Amendment allows it.
References
1. http://volokh.com/posts/1191613043.shtml
2. http://www.ca8.uscourts.gov/opndir/09/01/063903P.pdf
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