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I would argue the opposite. The dissenting opinion's rationale doesn't hold up in this case > Heat waves, like aromas that are generated in a kitchen, or in a

I would argue the opposite. The dissenting opinion's rationale doesn't hold up in this case > Heat waves, like aromas that are generated in a kitchen, or in a laboratory or opium den, enter the public domain if and when they leave a building. In the case of thermal imaging, you measure light waves that is already leaving the building. In the case of radar, you are actively sending in light waves to bounce off the inside and return to you.

baddox 12y ago
That's certainly true using that reasoning (which, incidentally, I think is ridiculous). Of course, they could come up with a workaround. Like perhaps it's not a violation of property rights for invisible and virtually harmless waves to enter private property, and if they happen to bounce off something and come back to the source for collection and analysis, so be it.
- gizmo686 12y ago
  It is most certainly not a violation of property rights; radio waves are a notable exemption to normal property rights. Not to mention the fact that their are many other radio waves that already enter your private property. They still would need to argue that it is not a 4th amendment violation.
  - baddox 12y ago
    The 4th amendment pretty clearly exists in an assumed system of private property. Searches and seizures both imply action that would normally be a violation of property rights. The quote you cited is also talking about property rights.
- rayiner 12y ago
  > That's certainly true using that reasoning (which, incidentally, I think is ridiculous). While Kyllo was obviously decided correctly, I don't think the reasoning of the dissent is ridiculous. Arguably, it's better scientifically. Premise: It's not an unreasonable search if police stand on the public street outside a house and hear someone shout: "I killed Jake!" Argument: Use of thermal imaging is indistinguishable from standing on the street hoping to hear a shout. Sound waves and infrared light waves are both generated inside the building, escape into public space, and are captured by passive receiving devices (ears, IR cameras). It's arbitrary to treat sound and infrared light differently. The above may be a good example against hyper-technical reasoning in court cases (but see: everyone's support of the argument advanced by Aereo), but it's not a scientifically unsound argument.
  - logfromblammo 12y ago
    I would argue that if the police require any equipment in addition to the normal range of human senses to detect evidence, the use of such equipment should be considered a search. Whether the feet physically move onto the property or not, the equipment is breaching a privacy barrier. If you confess to murder in your own home on an ultrasonic carrier wave, and the police happen to be outside on the sidewalk pointing an ultrasonic microphone at your house, no reasonable person could deny that was a search of your home. A visible-light camera with an audible-range microphone that coincidentally covered your home in the course of otherwise lawful activity, on the other hand, would be more in the nature of accidental eyewitness than intentional search. When people take steps to create a private space for themselves, they judge by their own senses whether their precautions are sufficient. If I stand outside my own house and cannot see, hear, smell, or otherwise sense any activity within, I have a reasonable expectation of privacy. I typically do not use a wi-fi packet sniffer, or a FLIR camera, or a laser microphone to ensure that my activities are safe from interception from random passers-by, because they do not carry such equipment.
    - danielweber 12y ago
      I would argue that if the police require any equipment in addition to the normal range of human senses to detect evidence, the use of such equipment should be considered a search. What if the equipment is extremely common? Anyone can stand outside your home and see your WiFi networks. Should the cops need a warrant to say "from the street, I turned on my iPhone and saw a wireless network?" What if 75% of smart phones had FLIR and people regularly used them? NB: I'm not necessarily convinced of this. It might turn out the best way is to start at "normal range of human senses" and explicitly add to that, say by legislation.
      - baddox 12y ago
        There will always be grey areas, but I think the recording/observing equipment would need to be both common and not deployed for the purpose of gathering evidence. If some evidence was somehow in the SSID of a Wifi network, and a police officer happened to see it on a laptop, I wouldn't call that a search (although I also probably wouldn't really call it credible enough evidence to justify any further action). If some conversations were broadcast over FM radio, and a police officer happened to hear it while driving by the source, I wouldn't call that a search.

baddox 12y ago

That's certainly true using that reasoning (which, incidentally, I think is ridiculous). Of course, they could come up with a workaround. Like perhaps it's not a violation of property rights for invisible and virtually harmless waves to enter private property, and if they happen to bounce off something and come back to the source for collection and analysis, so be it.

gizmo686 12y ago
It is most certainly not a violation of property rights; radio waves are a notable exemption to normal property rights. Not to mention the fact that their are many other radio waves that already enter your private property. They still would need to argue that it is not a 4th amendment violation.
- baddox 12y ago
  The 4th amendment pretty clearly exists in an assumed system of private property. Searches and seizures both imply action that would normally be a violation of property rights. The quote you cited is also talking about property rights.
rayiner 12y ago
> That's certainly true using that reasoning (which, incidentally, I think is ridiculous). While Kyllo was obviously decided correctly, I don't think the reasoning of the dissent is ridiculous. Arguably, it's better scientifically. Premise: It's not an unreasonable search if police stand on the public street outside a house and hear someone shout: "I killed Jake!" Argument: Use of thermal imaging is indistinguishable from standing on the street hoping to hear a shout. Sound waves and infrared light waves are both generated inside the building, escape into public space, and are captured by passive receiving devices (ears, IR cameras). It's arbitrary to treat sound and infrared light differently. The above may be a good example against hyper-technical reasoning in court cases (but see: everyone's support of the argument advanced by Aereo), but it's not a scientifically unsound argument.
- logfromblammo 12y ago
  I would argue that if the police require any equipment in addition to the normal range of human senses to detect evidence, the use of such equipment should be considered a search. Whether the feet physically move onto the property or not, the equipment is breaching a privacy barrier. If you confess to murder in your own home on an ultrasonic carrier wave, and the police happen to be outside on the sidewalk pointing an ultrasonic microphone at your house, no reasonable person could deny that was a search of your home. A visible-light camera with an audible-range microphone that coincidentally covered your home in the course of otherwise lawful activity, on the other hand, would be more in the nature of accidental eyewitness than intentional search. When people take steps to create a private space for themselves, they judge by their own senses whether their precautions are sufficient. If I stand outside my own house and cannot see, hear, smell, or otherwise sense any activity within, I have a reasonable expectation of privacy. I typically do not use a wi-fi packet sniffer, or a FLIR camera, or a laser microphone to ensure that my activities are safe from interception from random passers-by, because they do not carry such equipment.
  - danielweber 12y ago
    I would argue that if the police require any equipment in addition to the normal range of human senses to detect evidence, the use of such equipment should be considered a search. What if the equipment is extremely common? Anyone can stand outside your home and see your WiFi networks. Should the cops need a warrant to say "from the street, I turned on my iPhone and saw a wireless network?" What if 75% of smart phones had FLIR and people regularly used them? NB: I'm not necessarily convinced of this. It might turn out the best way is to start at "normal range of human senses" and explicitly add to that, say by legislation.
    - baddox 12y ago
      There will always be grey areas, but I think the recording/observing equipment would need to be both common and not deployed for the purpose of gathering evidence. If some evidence was somehow in the SSID of a Wifi network, and a police officer happened to see it on a laptop, I wouldn't call that a search (although I also probably wouldn't really call it credible enough evidence to justify any further action). If some conversations were broadcast over FM radio, and a police officer happened to hear it while driving by the source, I wouldn't call that a search.