These Open Fields are HOT!

In Chapter 10, we return to the case of Kyllo v. US. In the Court’s decision in Kyllo v. US (2001), the majority held that the use by police of a thermal imaging camera to investigate the temperature of a house without a warrant was unconstitutional. However, the Court relied on a very interesting rationale:

“Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

Thermal imaging devices can be quite useful, and police departments have been allowed to use them for various purposes since the Court’s decision in Kyllo. Under Kyllo, police can certainly get a warrant for the use of such devices. They can also use them for officer safety during hot pursuit or other emergency situation. Here’s a relatively famous recent example:

The kind of infrared thermal imaging device that was new technology in 2001 is relatively commonplace today. Read this Volokh Conspiracy piece about the application of the general public use doctrine to infrared thermal imaging devices today. Does the logic in Kyllo mean that the ban on warrantless infrared thermal imaging searches has an expiration date? (Especially now, since identity theives are making use of the devices for their own purposes.) If it does, have we reached it?

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