NCJ Number
200915
Journal
The Journal of Criminal Law and Criminology Volume: 93 Issue: 1 Dated: Fall 2002 Pages: 153-194
Editor(s)
Matthew Burke
Date Published
2002
Length
42 pages
Annotation
This paper examines the history of the United States Supreme Court’s approach to technology and the fourth amendment (search and seizure) through a review of one past and one present Court case on the use of technology in investigations, Katz v. United States (1960's) and Kyllo v. United States (2001).
Abstract
A physical invasion of the home was the factor that the Court depended on to determine whether there was a search for fourth amendment purposes up until 1967. Then, in Katz v. United States, the Court issued an opinion that appeared to enhance fourth amendment protections as it completely changed how the use of technology in investigations was analyzed. The Katz holding was based on whether the defendant had a reasonable expectation of privacy. In Kyllo v. United States (2001), the United States Supreme Court held that where the government uses a device, in this case, a thermal imager, that is not in general public use, to explore details of the home that would remain unknown without physical intrusion, the surveillance constitutes a search and is presumed unreasonable without a warrant. The Court reasoned that when it comes to the home, fourth amendment protections are heightened. Even though the Court has broken away from the form of analysis that it had taken in fourth amendment cases for the last 30 years (i.e., the Katz case), the Court should not have taken into consideration the extent to which the technology involved is used in society. This paper examines the history of the Court’s approach to technology and the fourth amendment and argues that the Court wrongly decided Kyllo v. United States based on its fear about what future technology will allow the government to do and out of frustration with its own confused past regarding the issue.