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A Times Editorial
Recent U.S. Supreme Court rulings show that the justices favor privacy, barring law enforcement's use of high-tech devices without warrant.
© St. Petersburg Times, published June 13, 2001
The U.S. Supreme Court's ideological divisions aren't as wide and predictable as they sometimes seem. Antonin Scalia, generally considered the court's most aggressively conservative justice, wrote the majority opinion in Monday's 5-4 decision barring law enforcement's use of heat sensors and other high-tech devices to look inside a person's home without a warrant. The decision overturned the government's case against an Oregon man who had grown marijuana plants in his house. Scalia usually is a leader of the posse in Washington's war on drugs, but his opinion in this case helped to bolster a Fourth Amendment that over time has been debilitated by the Rehnquist court.
"The Fourth Amendment draws a firm line at the entrance to the house," Scalia wrote. That line, he continued, extends to thermal imagers and other modern devices that allow the government "to explore details of the home that would previously have been unknowable without physical intrusion."
Scalia's opinion defined a robust right of privacy that should be embraced by property rights advocates and civil libertarians across the ideological spectrum. Scalia was joined by fellow conservative Clarence Thomas and three of the court's more liberal justices, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
Less predictable, and more difficult to explain, was the dissent of Justice John Paul Stevens, who has been one of the court's strongest defenders of the Fourth Amendment in other contexts. He argued that the decision could hinder the government's ability to prevent acts of terrorism, but the Bill of Rights can't be held hostage to unfocused concerns about crime or terrorism.
Unfortunately, this court often has trampled on the "firm line" Scalia laid down in this decision. The Rehnquist court has upheld the use of low-flying aircraft to spot marijuana plants growing in homes and yards. It has allowed the police to use binoculars and drug-sniffing dogs to pry into people's homes and yards from a distance.
And Scalia has been a leader of a conservative majority that has stripped away citizens' Fourth Amendment protections outside the home. In April, a 5-4 court decision ruled that police may arrest people without a warrant and take them into custody for offenses as minor as a seat-belt violation. In 1999, Scalia wrote the majority opinion allowing police to search an automobile passenger's belongings simply because the car's driver is suspected of committing an offense. And in 1996, the court ruled that police could detain motorists for routine traffic violations when their real intent was to search for drugs.
To its credit, the court more recently had issued two other opinions that curtailed law enforcement's ability to ignore the Fourth Amendment in the name of the war on drugs. Monday's opinion reinforced that trend. Intellectually honest conservatives and liberals alike should be able to agree that modern technology should not be allowed to violate the spirit of the privacy rights that the framers of our Constitution invested in every citizen's home and person.