Thus, while I agree with much of his criticism of the Court's cases, I disagree with Professor Ku's suggestion, expressed in this symposium issue of Minnesota Law Review, that surveillance of the home with technology in general public use or with the naked eye is not governed by the Fourth Amendment. and notes that the crux of the Court's search cases up to that time was whether the police search "was accomplished by means of an unauthorized physical intrusion. In neither Ciraolo nor Riley did the Court focus on the fact that the police use technology (planes) to carry out their observations.
When the Court found that the Environmental Protection Agency's use of a $22,000 mapping camera to photograph Dow Chemical's facility was not a search,37.
DEFINITIONS
KYLLO'S PROBLEMS
To the extent that it endorses the concept of general public use or the related idea that details visible to the naked eye can also be viewed with technology without physical intrusion, the ruling in Kyllo is seriously flawed. The first is the most pragmatic: both general public usage and naked-eye doctrines are virtually impossible to apply in a meaningful way. Here they must determine whether the details observed with technology would also have been visible to the naked eye without physically entering a constitutionally protected area.
Again, that decision says that enhanced home searches are permissible if they merely duplicate plain-eyed searches from vantage points that are not constitutionally protected. Assuming that hypothetical unaided viewing can be done without physical intervention in a protected area, are there any other restrictions on how it can happen. Lower courts have already found it difficult to deal with these types of questions in dealing with the actual naked eye view of the interior of the house.
In this type of case, however, the enhanced observation sees more detail than the naked eye; otherwise "confirmation" would not be necessary. The problems with the general public and plain-eyed doctrines go much deeper than difficulties in determining their meaning. Even more frightening is the possibility that the general use and plain-eye exceptions could work together so that no search occurs when police use new technology to spy on what could have been observed by the naked eye or viewing with technology in common use.
Since observation with commonly used technology should apparently be equated with observation with the naked eye in terms of privacy expectations, this start-up of the two exceptions is not unlikely. As suggested above, police usually use technology because they want to ensure that the target is unaware of the surveillance and because they believe that seeing with the naked eye is not feasible.
TECHNOLOGICALLY ENHANCED OBSERVATION AND REASONABLE EXPECTATIONS OF PRIVACY
TWO POST-KYLLO PROPOSALS
A rule that all technological spying on the interior of the home is a search not only captures society's expectations of privacy—whether defined historically or by today's standards—but is also easily reconciled with the language of the Fourth Amendment. To "search" means "to look at or carefully or thoroughly in an attempt to find or discover something. 2145 The Fourth Amendment prohibits unreasonable searches of houses. Thus, as many others have pointed out,14 the 6th states that "[petitioners concede, in our view, correctly that a Fourth Amendment 'seizure' occurs when a vehicle is stopped at a checkpoint," and requires that the selection and operation of the checkpoint be "reasonable."
34;The plain meaning of the English language would certainly not be offended if any police activi-. and even Kyllo suggested47), it does not stretch the Fourth Amendment in the least to say that it is implicated when the police look carefully or thoroughly for something inside a house. Indeed, a cynic might argue that it is this concern, not history or assessments of society's expectations of privacy, that best explains Kyllo's general public use and exceptions to the naked eye. I have previously proposed a legislative approach that would allow the police to profit from their observations, inadvertent and otherwise, without sacrificing individual privacy interests.148 Although "search" would be interpreted broadly under this proposal, "probable cause" would also to mean "the reason which makes probable the reasonableness of the intrusion caused by a given search or seizure").149 Thus, the level of reason necessary to justify a search will depend on its intrusiveness.
Unless history limits the scope of language, no police investigative activity can escape the grasp of the Fourth Amendment.” When the Fourth Amendment was adopted, as it is now, “search” meant “to look over or through for that purpose.” . to find something; to explore; to examine by inspection; as, to search the house for a book; to search the woods for a thief.") (citation omitted). 1 (1991) [hereinafter Slobogin, Fourth Amendment]; Christopher Slobogin, Let's Not Bury Terry: A Call for Rejuvenation of the Principle of Proportionality, 72 ST.
This definition would still allow for a robust warrant requirement because warrants can still be based on "probable cause" as required by the Fourth Amendment. Although the principle of proportionality can be reconciled with the Fourth Amendment,5' it nevertheless violates the core of standard search jurisprudence in the Fourth Amendment.1 12 Another proposal that has more solid legal precedent and that could also solve the problems raised by Kyllo, is patterned. on Title II's ban on warrantless electronic communications surveillance.
THE PROPORTIONALITY PRINCIPLE
Now consider the second story, the pre-Kyllo account of United States v. On the third hand, the interior of the garage was only "relatively dark" according to the court (meaning that a flashlight was useful but not absolutely necessary),62 and the officer was kneeling on public property when he peered in, so perhaps here the naked eye exception applied. According to the proportionality approach, both Shupe's control of the interior of the home and Huffstutler's exploration of it-.
Similarly, Huffstutler's observation of car parts and rags gave him sufficient reason, if not probable cause, to take a brief look inside the garage with or without a flashlight.”M. Ubiquity in Proportionality Analysis In most of the Court's cases dealing with the definition of "search" for purposes of the Fourth Amendment, under the proportionality approach, the police were sufficiently suspicious to justify their enhanced searches.65.
This applies not only to cases directly related to this Article, but also to other cases defining "search". Take, for example, the Supreme Court's decision in Lewis and Lee. A common criticism of the 'idea of proportionality', also advocated by Professor Amsterdam, is that 'a graduated Fourth Amendment'e 6 8 would become 'one giant Rorschach blob'.169 I have already answered this criticism in detail.'0 The first proof is again Terry, who held that the search required only reasonable suspicion.”2 Consider also one of the leading enhancement device cases, United States v.
which holds that an occupant of a house can be detained for the duration of the search of the house in terms of a warrant);. Kyllo does not necessarily reject this approach in the context of enhanced home surveillance.
A LEGISLATIVE APPROACH
Other sections of Title III reinforce this prohibition by prohibiting the manufacture and sale of "any electronic, mechanical, or other device [that is] primarily useful for the covert interception. 34;visual surveillance" of "private locations." '8 The latter term could be defined as "the interior of the home and all other areas in which activities or objects are carried out that are held by people who show an expectation that such activities or objects will not be subject to surveillance under circumstances that justify such an expectation. Visual surveillance" could be defined as "viewing a private location using any electronic, mechanical or other device." If this definition seems too broad (it would include, for example, viewing private locations with glasses and cameras), the phrase "which improves normal (20-20) vision" could be added. Another aspect of the proposed statute, like Title III, would seek to limit the proliferation of surveillance devices.
The unauthorized manufacture, sale or possession of visual surveillance equipment that is "primarily useful for the purpose of covert visual surveillance of private locations" could be banned. Because it prohibits unwarranted, non-consensual technological surveillance of “private locations,” defined as the interior of homes, this statute should make both general public use and naked-eye exceptions virtually irrelevant to the extent that this unsuspecting, covert technological surveillance of the house. For example, one court ruled that even though the defendant's voice could often be heard through his open office door, eavesdropping on those conversations using wiretaps was against the law.9' Parallel reasoning in the context of visual surveillance would ensure that the naked people eye exception is untenable.
In 1986, Congress amended Title III to exclude conversations on such telephones from the scope of the statute on the theory that they could be intercepted using "readily available technologies" such as an AM radio.'9 1 In 1994, how - ever did it turn itself,92 probably for similar reasons. The statute, of course, would not "overturn" the portion of Kyllo that enacts the common public use and plain view exceptions because they are interpretations of the Constitution. As a consequence, if the statute does not provide for an exclusive remedy (as is the case with the provisions of Title III dealing with electronic, as opposed to oral or electronic communications193), then evidence obtained when these exceptions apply, although complied with in violation of the statute, could still be used in court.
But because the statute would prohibit unauthorized enhanced viewing of the home, whether by citizens or police, the exception would lose significant moral force. Its "common use" and "naked eye" exceptions to the blanket ban on enhanced visual observation of the home's interior represent potentially major loopholes in the Fourth Amendment's protections.
