A Stitch in Haste

"While it may be difficult to [define "privacy"] when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes — the prototypical and hence most commonly litigated area of protected privacy — there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable.
--Kyllo v. U.S. (emphasis in original)

One of the few brief shining moments in Supreme Court search-and-seizure jurisprudence (which, as a whole, is on my list of Worst Supreme Court Cases) was Kyllo v. U.S., 533 U.S. 27 (2001), in which the Court ruled (barely — the decision was 5-4) that "police entering a home with a heat sensor" was, well, "police entering a home," and that a warrant based on probable cause was therefore still required.

Somebody please tell the Eighth Circuit:

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.

This hypothesis not only flatly disregards the plain text of Kyllo, but also spits in the face of the Fourth Amendment itself: "no Warrants shall issue, but upon probable cause." End of discussion. There is simply no wiggle room. To suggest that a warrant could ever, under any circumstances, issue upon anything other than probable cause, is flunk-the-final wrong. What were these judges thinking?

Keep in mind that Terry v. Ohio, 392 U.S. 1 (1968), an abominable decision in its own right, concerned when a warrant might not be needed at all (i.e., for a brief frisk for weapons in order to ensure the police officer's safety). What, exactly, does "ensuring officer safety" have to do with peering into private property with a heat sensor?

Terry represented the emergence of an ever-metastasizing tumor of concocted exceptions to the Fourth Amendment's warrant requirement. But even Terry, and the mutant progeny it spawned, never stood for the proposition that a warrant could ever be issued based on "reasonable suspicion" and not the far higher "probable cause" standard. The police can argue that what they are doing is not a "search" (or not a "seizure") and therefore does not require a warrant at all. But they cannot argue that there is such a thing as a "warrant lite."

(Incidentally, "search" and "seizure" are not the same thing. Terry was a seizure case. So why is this court applying it to a search?)

Hopefully an en banc Eighth Circuit will quash this atrocious ruling. It would be unfortunate if the Supreme Court were forced to waste its time on this nonsense.

The case is U.S. v. Kattaria, No. 06-3903 (8th Cir., Oct. 5, 2007) (PDF - 9 pages) (Also via FourthAmendment.com)