By Joseph A. Schafer, Associate Professor, Center for the Study of Crime, Delinquency, and Corrections, Southern Illinois University, Carbondale; and Thomas J. Martinelli, Adjunct Professor, Wayne State University, Detroit, Michigan
n 2001, when the Supreme Court wrestled with law enforcement’s use of sense-enhancing technology in a 1992 arrest, the domestic war was focused on drugs, not terrorism. In a five to four vote, the Court ruled that the warrantless use of a thermal-imaging device to detect heat emissions from a home violated Fourth Amendment privacy protections. Under the exclusionary rule, or the “fruits of the poisonous tree” doctrine, a cache of weapons, 100 marijuana plants, and drug paraphernalia were inadmissible and the defendant’s conviction was overturned. Why did this case languish through appeal after appeal regarding evidential suppression, probable cause criteria, and officer integrity issues when it appeared to be an open and shut case? Analyzing these questions can provide guidance for the challenges law enforcement faces today regarding privacy issues, intelligence-led policing (ILP) philosophies, and the public’s trust and support in the ongoing war against terrorism.
Facts of the Kyllo Case
To many observers, the facts precipitating the ruling Kyllo v. U.S.1 appear to be a case of good, creative policing. Narcotics officers had identified and terminated a marijuana manufacturing ring on the West Coast. Through credible intelligence sharing, they eventually wound up at a triplex Danny Kyllo shared in Oregon. In their sworn affidavits requesting a search warrant, the officers stated that the homes’ electric bills were unusually high, that Kyllo’s wife had recently been arrested on distribution charges, and that Kyllo had offered to sell marijuana to a reliable informant. In addition, the search warrant affidavit reported imaging results obtained from an Agema Thermovision 210 imaging device. This thermal-imaging equipment, when pointed at Kyllo’s home, demonstrated an unusual amount of waste heat emanating from above the garage on his portion of the triplex.
By conventional legal standards, the contents of the affidavit would seem to meet the threshold criteria necessary to establish probable cause or criminal predicate. Probable cause is “a set of facts, information, circumstances, or conditions that would lead a reasonable person to believe that an offense was committed and that the accused committed that offense.”2 Additionally, “expertise probable cause” encompasses a “police officer’s knowledge of criminal traits and the ability to put the pieces together” in order to establish sufficient cause for a warrant.3 On its face, the warrant request included the necessary criteria, including the sense-enhancing technology results, to meet constitutional standards for a reasonable search of Kyllo’s home.
Historically, the Supreme Court has allowed the use of anonymous tips and informants to conduct searches in the war on drugs. Officers, acting on an anonymous tip, have used an airplane 1,000 feet up in public airways4 or a helicopter flying at 400 feet5 to observe, with the naked eye, marijuana plants growing on private property. And the warrantless use of drug detecting canines has survived judicial scrutiny over the years.6 The Supreme Court has ruled that these are constitutionally condoned creative uses of sense-enhancing technology that did not violate society's expectations of privacy. Clearly, the Kyllo warrant request provided probable cause criteria that exceeded these cases to justify the execution of a search warrant.
The officers in the Kyllo case were veteran narcotics officers in search of a creative way to catch a lawbreaker. From a privacy rights analysis, they never set foot on his property or “pierce the veil” of his triplex in their efforts to collect data for their search warrant request. They simply pointed the thermal-imaging device at his home, from across the street, at approximately 3:20 a.m., and used the data they collected to draft their affidavit request. On paper, it appeared they jumped through every constitutional hoop necessary to survive a Fourth Amendment challenge.
The Court’s Rationale in Dismissing the Kyllo Case
The majority did not have to address the utility bills, the wife’s arrest, or the informant’s hearsay statement regarding Kyllo’s offer to sell marijuana. None of these criteria survived the suppression hearings in the lower courts.
Apparently, the math the agents used to calculate Kyllo’s unusually high electrical bill was flawed and grossly inaccurate, though unintentional. For validity and reliability reasons, hearsay statements are not allowed in a court of law, unless they are dying declarations in which case the person who made the statement is not able to be subpoenaed. The officers relied on the veracity of a different agency’s drug officers who were told by their informant that Kyllo was selling dope out of his house. And the wife was arrested, as reported, but at the time of her arrest she and Kyllo had been divorced for over 18 months. She was living in a different state and using her maiden name. By the time the U.S. Supreme Court granted certiorari, the sole issue to be challenged in the warrant request was the warrantless use of sense-enhancing technology to search a man’s castle for the alleged fruits of his crimes.
To followers of how each Supreme Court Justice rules, it was somewhat surprising that the conservative, propolice Justice Scalia crossed the ideological line of demarcation and voted in favor of the dealer, demonstrating how critical this privacy issue was to policing. It’s not what Justice Scalia said in the majority opinion but what he didn’t say that is critical to this discussion and the future of police intelligence issues and privacy rights.
|In the intelligence field, “Garbage In, Gospel Out” refers to data included in an intelligence file although they have not been properly cross-checked or investigated for their veracity and reliability. The intelligence-led policing mantra must be “corroborate, substantiate, and validate.”|
The majority feared the police use of sense-enhancing technology (to pierce the walls and privacy expectations) without judicial oversight and accountability. But would the Justices have come to the same conclusions if Kyllo’s pot proceeds were used to fund domestic terrorists’ attacks? What if Kyllo was an Al Qaeda sympathizer, a Hamas disciple, or an associate of some criminal extremist group? Would these facts have changed the Court’s ruling in the balancing argument, pitting Kyllo’s individual rights versus society’s right to be free from terrorism?
In ruling that the use of the thermal imager was a search, thus requiring a warrant and judicial oversight, the majority dictated that law enforcement agencies fine-tune their own privacy guidelines and procedures and not abandon traditional policing techniques by relying solely on sense-enhancing technologies. When a citizen has ostensibly secured the privacy of particular criminal information, especially within his home, the Fourth Amendment focuses on the reasonableness of the government’s actions in undoing that privacy, not on the reasonableness of the individual’s expectations. 7 The onus will always be on the government’s agents to demonstrate the reasonableness of their investigative actions. This is the rule that plaintiff’s attorneys will use in privacy rights litigation challenging intelligence-led policing cases in the future. Fine-tuning your agencies’ policies, training, and implementation is critical to successfully engaging in the field of intelligence. This is discussed further in the best practices section below.
Police Integrity Issues
Criminal defense attorneys are trained to dissect the government’s case, piece by piece, until there is a skeletal remnant left from the original warrant request. Attacking the systemic integrity of police investigative procedures has proven to be successful, time and again, at the warrant request stage.
A review of the Kyllo oral arguments before the Supreme Court gives one the sense that the affidavit request was flawed from the get-go. Had the officers relied more on traditional policing techniques the Court would not have had to decide the sole issue of the constitutionality of using the thermal-imaging device. Justice Scalia’s message in the Kyllo case is loud and clear. With the continued advances of electronic technology that law enforcement has at its disposal today, extra precautions must be taken to verify and substantiate the intelligence data obtained during police investigative process.
There are important lessons to be learned from this case for the future of intelligence-led policing. Had the traditional policing techniques such as dope buys at Kyllo’s home and extended surveillance of his triplex been accomplished, these steps would have provided a reasonable comfort level for any reviewing judge. Infiltration of Kyllo’s marijuana business, though time-consuming and costly, would have provided probable cause to search of his home. Had the officers networked with the local police regarding their knowledge of the drug traffic activity in Kyllo’s neighborhood and used local informants for their intelligence gathering, Kyllo’s conviction probably would have been upheld at the appellate stage.
Fatal to the government’s case were the several omissions and inconsistencies in the affidavit that raised appellate eyebrows.
The failure to cross-check the facts of the ex-wife’s arrest places in question the integrity of the investigators’ warrant request criteria. A lien check, phone calls to the arresting agency, and a review of the case disposition would have likely revealed that her arrest for drug distribution 18 months earlier, in California, was not related to her ex-husband’s criminal enterprise in Oregon. An appellate court can surmise that these extra steps would have demonstrated that the Kyllos were divorced and that the former Mrs. Kyllo was using her maiden name at the time the officers’ warrant was drafted.8 That one element of the warrant request was dismissed.
The appellate courts ruled that the portion of the affidavit pertaining to Kyllo’s excessive use of electricity was “false and misleading,” though they determined it was not knowingly or recklessly made by the officers. And the allegation that Kyllo offered drugs for sale was “hearsay many times over,” wherein the officers heard it from a detective who heard it from another detective who heard it from an informant “who overheard Kyllo’s offer to sell drugs.”9
The validity and reliability of such statements, when offered as true in a sworn statement by law enforcement, mirrors what in the intelligence field is referred to as Garbage In, Gospel Out. This expression refers to data included in an intelligence file although they have not been properly cross-checked or investigated for veracity and reliability. The intelligence-led policing mantra must be “corroborate, substantiate, and validate.” This is the crux of such sensitive investigative police work. It must be done by the book so those who rely on such intelligence can be sure it was thoroughly prepared for dissemination. Then, when such criminal intelligence data are shared with other agencies, they are handled as factual; otherwise they would not have been included in an intelligence file. Here is where networking liability, in the information-sharing environment, may attach. Intelligence unit supervisors must zealously review and edit intelligence data before they are disseminated to other agencies.
The duties and sensitivities associated with intelligence gathering and sharing are nothing new to law enforcement, but they must be refined and refocused in this ongoing war against terrorism. When corners are cut, or omissions or misleading statements are made, criminal cases are jeopardized and civil liability becomes a costly issue.
The lessons learned here are numerous. Justice Scalia’s majority opinion compels agencies and their trainers, whether in narcotics, homicide, or intelligence, to revisit their investigative procedures and privacy guidelines and recognize that they cannot cut corners or abandon the traditional policing techniques that courts have approved of for years.
Best Practices Related to the Field of Intelligence
Transparency, accountability, and oversight are the buzzwords in the federal government today and have been in vogue in local policing for some time. In 2001, the Kyllo majority feared officers using sense-enhancing techniques without proper judicial oversight or supervisory accountability. The conundrum for law enforcement today is establishing probable cause for a search warrant request, whether in marijuana manufacturing cases or preoperational terrorist plots, without necessarily having enough evidence to meet the traditional threshold that a crime has been or is being committed.
In the intelligence-sharing environment, it is commonly understood that individual acts such as the purchase of large amounts of fertilizer or pool chemicals, the rental of storage bins and U-Hauls, and the videotaping of public transportation infrastructures are legal acts that alone would not meet the constitutional probable cause criteria for a search warrant. Yet, when these pieces of the puzzle are analyzed together, they may prove to be the preoperational steps of a potential terrorist act. Preoperational acts, or preincident indicators, may be legal acts up to the act of terror itself. This is the ongoing challenge for law enforcement today.10 Combining sense-enhancing technology and valid and reliable intelligence data with time-tested, traditional policing methods of surveillance, infiltration, undercover operations, and use of trustworthy informants will prove to be a template for future intelligence successes.
The privacy issues of today are more challenging for law enforcement than they were for the Kyllo officers, with their thermal imager, in 1992. But the war on terrorism is not a license to sidestep the Fourth Amendment. Law enforcement agencies must review, research, and rewrite their privacy policies and restructure their training curricula to incorporate the sensitivities associated with the handling of personal identifying information of citizen targets.
The legal challenges of balancing the individual’s right to privacy versus society’s right to be free from the next terrorist act or major crime threat must be addressed. And police ethics and integrity are the critical keys to successful intelligence collection, retention, and dissemination, with and without the use of sense-enhancing technologies. Critics of intelligence-led policing pounce on any reported breakdown in this system of accountability promulgated through the minimal national standards for the intelligence-sharing environment. Strict adherence to these minimal standards is the key to future successes in the intelligence field. ■
1Kyllo v. United States, 533 U.S. 27, (2001).
2Larry J. Siegel and Joseph J. Senna, Introduction to Criminal Justice, 11th ed. (Wadsworth, 2007).
3Henry M. Wrobleski and Karen M. Hess, An Introduction to Law Enforcement and Criminal Justice, 6th ed. (Wadsworth, 2000).
4California v. Ciraolo, 476 U.S. 207 (1986).
5Florida v. Riley, 488 U.S. 445, 109 S. Ct 693 (1989).
6Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834 (2005); see also United States v. Place, 462 U.S. 696 (1983).
7Jim Harper, “Reforming Fourth Amendment Privacy Doctrine,” American University Law Review 57 (June 2008): 1381 http://www.wcl.american.edu/journal/lawrev/57/harper.pdf?rd=1 (accessed August 27, 2009).
8United States v. Kyllo [third appeal], 190 F.3d 1041 (1999); United States v. Kyllo [second appeal], 140 F.3d 1249 (1998); United States v. Kyllo [first appeal], 37 F.3d 526 (1994); and United States v. Kyllo 809 F. Supp. 787 (D. Or. 1992).
10“NYPD Spying Power Widens; Investigative Limits Are Lifted,” Newsday, February 12, 2003, http://nypdconfidential.com/columns/2003/030212.html (accessed August 27, 2009).