Supreme Court Roundup: Justices Make Decisions regarding Privacy and Public Safety; Religious Accommodation in Public Facilities

By Otero, Juan | Nation's Cities Weekly, June 18, 2001 | Go to article overview

Supreme Court Roundup: Justices Make Decisions regarding Privacy and Public Safety; Religious Accommodation in Public Facilities


Otero, Juan, Nation's Cities Weekly


To withdraw such a minimum expectation of privacy against unreasonable searches would permit "police technology to erode the privacy" guaranteed by the Constitution, Justice Antonin Scalia said.

Two Supreme Court decisions handed down last week could have an impact on some city operations. In a privacy and technology case, the high court struck down the use of a thermal imaging device by law enforcement without a search warrant. The other decision requires schools to allow religious groups to use their facilities like other organizations.

Thermal Imaging Search Decision

In an important declaration of constitutional constraints on local law enforcement using new privacy-threatening technology, the United States Supreme Court ruled that the use of a thermal imaging device to detect patterns of heat coming from a private home is a search that requires a search warrant.

The court's 5-4 ruling was a setback for the U.S. Justice Department, which argued the use of a thermal imager by law enforcement officers was not covered by constitutional privacy protections.

To withdraw such a minimum expectation of privacy against unreasonable searches would permit "police technology to erode the privacy" guaranteed by the Constitution, Justice Antonin Scalia said. Scalia rejected the Justice Department's argument that thermal imaging was constitutionally allowed because it did not detect intimate details.

Moreover, Scalia warned that a change in the court's approach would leave the homeowner at the mercy of advancing technology, including imaging technology that could discern all activity within the home.

The court said further that the warrant requirement would apply not only to the relatively crude device at issue but also to any "more sophisticated systems" in use or in development that let the police gain knowledge that in the past would have been impossible without a physical entry into the home.

The decision overturned a rifling by the United States Court of Appeals for the Ninth Circuit in San Francisco, which held in 1999 that the warrantless use of a device that revealed patterns of heat suggestive of an indoor marijuana-growing operation did not violate the Fourth Amendments prohibition of unreasonable searches.

In a dissenting opinion, Justice John Paul Stevens said the Ninth Circuit was correct and that the police activity in the case "did not invade any constitutionally protected interest in privacy."

Stevens said that for the court to make a constitutional rule about future technology was "unnecessary, unwise and inconsistent with the Fourth Amendment."

Stevens said the privacy interest was "trivial" at best. He said a homeowner who wants to engage in activities that produce extraordinary amounts of heat could conceal that from outsiders simply by making sure the home was well insulated.

Those who joined Justice Scalia in the majority were Justices David H. Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen G. Breyer.

Chief Justice William H. Rehnquist joined Stevens in the dissent, as did Justices Sandra Day O'Connor and Anthony M. Kennedy.

Despite its forceful language, the decision was undoubtedly not the court's final word on the subject of privacy and technology. …

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