Warrantless Search Using Thermal Imaging Device

No Supreme Court cases directly address whether the warrantless search of Professor Pilsner's home is an unreasonable search which violates the Fourth Amendment, nor do any cases in the Fourth Circuit directly or indirectly address that issue. There is a split of authority in the Circuit Courts of Appeals and among a number of District Courts; nevertheless, the weight of authority in cases involving similar fact patterns suggests that the search conducted in the present (Pilsner) case was a lawful one. Notwithstanding that conclusion, some cases, including a very recently (1998) decided case in the 9th Circuit, have arrived at a contrary result and express a powerful rationale for their holdings consistent with the underlying purpose of the Fourth Amendment.

A number of federal appellate and district court decisions have found searches conducted by terrestrial and 'rial thermal imaging of private premises to locate marijuana which was suspected to be growing there to be lawful. In concluding either that no search occurred or that it was reasonable, these courts have relied on two primary arguments: (1) the defendants involved had no expectation or at least no reasonable expectation of privacy in the areas searched; and (2) because of the nature and limitations of the technology used, the search itself was non-intrusive and/or not revealing

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1995), in which it said at 1329-1330 that thermal imaging did not reveal any "intimate details" of the residence in question. The Fifth Circuit reversed the District Court in United States v. Ishm'l, 843 F. Supp. 205 (E.D. Tex.), rev'd 48 F.3d 850 (5th Cir. 1995), cert. denied, 116 S.Ct. 75 (1995), which had held a thermal imaging scan of a metal building on defendants' rural property to be illegal. The 5th Circuit's reasoning was that the building was outside the home and not part of the adjoining curtilage and that therefore no reasonable privacy expectation attached. In accord are the 7th and 10th Circuits, respectively, on substantially the same reasoning in United States v. Myers, 46 F.3d 688 (7th Cir. 1995), cert. denied, 116 S.Ct. 213 (1995) and United States v. Cusumano, 842 F. Supp. 1343 (D. Wyo 1994), rev'd 67 F.3d 1497, vacated on reh'g en banc, 83 F.3d 1247 (10th Cir. 1996). Other district court opinions in accord are United States v. Domitrovich, 852 F. Supp. 1460 (E.D. Wash. 1994), aff'd 57 F.3d 1078 (9th Cir. 1995) and United States v. Deaner, 1992 U.S. Dist. LEXIS 13046 (M.D. Pa. 1992), aff'd on other grounds, 1 F.3d 192 (3d Cir. 1993). Many fewer appellate and district court decisions have found thermal imagi
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Some common words found in the essay are:
Supreme Court, Justice McKay, Fourth Amendment, United Ford, ED Tex, Katz United, United Cusumano, California Ciraolo, Kyollo Kyollo, REV Summer, thermal imaging, fourth amendment, cir 1995, supreme court, 9th cir, district court, expectation privacy, cert denied, 1995 united, 9th circuit, cir 1995 cert, thermal imaging device, denied 116 sct, reasonable expectation privacy, 1995 cert denied,
Approximate Word count = 2560
Approximate Pages = 10 (250 words per page)

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