The Pal-Item runs a piece today about the Wayne County Sheriff receiving a grant to buy thermal imaging equipment. The equipment lets officers see into buildings to see the images of heat sources (like you and me). Sheriff Strittmatter focused on positive uses of this technology, like search and rescue, but there is a darker side .
Officers have used thermal imaging equipment in the past to peer into citizens’ homes without a warrant or notice to the occupants. In Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Supreme Court said that where the government uses a device, such as a thermal imager, 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. But all that means is they cannot use the results of a warrantless thermal imaging in court. That does not mean that they cannot use it for what is called “general surveillance.”
In fact, 4 months after Kyllo came down, the Brown County Sheriff’s department used its thermal imaging equipment to look into a home to see what was going on. Frasier .v State, 794 N.E.2d 449 (Ind.App. 2003).
Officers frequently employ “illegal” techniques that generate “intelligence” on “persons of interest,” even though they could not use the information so developed in court. Not directly, that is, and that’s the key: If we find out you are a drug user by illegally peeking in your windows, we can later follow you in you car, pull you over for some obscure traffic offense, and develop that into a full-scale search. Typically, the officer who did the peeking will not be the same officer who makes the stop, so there is no path back to the original illegal condct. A clean arrest. I know of a local officer who routinely absconds with people’s trash, even though Indiana courts have placed limits on trash searches, to develop “intelligence.”
When attorneys talk about the importance of the 4th Amendment, most people say “If you’re not doing anything illegal, you don’t have to worry about it.” So if you’re not sitting in your house doing illegal things, why should you care if the cops have the ability to peek through your walls and see what you’re up to? The value this society places on privacy is diminishing. In part, at a time when people seem to love to expose their intimate lives on TV talkshows, reality TV, and the internet, opening up people’s intimate lives is becoming more acceptable, a basic erosion of our collective sense of decency and propriety. But in large measure, I think it is the increasing complexity of our world which causes us to have more connections with and more reliance on the government, businesses and each other, that drives us to need to know more about what people are up to, and makes us more inclined to accept measures that deminish privacy.
Somehow, I still feel that we value the concept of “home” as a place where we can retreat and be free from the scrutiny of the world. No one should have to lie in their bed with their spouse and think, “Are they watching me now?”
