From the Battlefront to the Homefront: Infrared Surveillance and the War on Drugs Place Privacy under Siege

Authors

Lynne M. Pochurek

First Page

137

Document Type

Comment

Abstract

While George Orwell contemplated the realities of modem technology racing ahead with ever increasing speed and thwarting our individual privacy, it is clear that the Framers of the Constitution did not. This technological advancement, coupled with America's overriding concern with fighting the "war on drugs," has immensely compromised the Fourth Amendment to the United States Constitution. Once commanding great respect, this Amendment was "sanctified by a Supreme Court that felt compelled to protect all of us, the innocent and guilty alike, from arbitrary and unlawful government intrusions." Unfortunately, the modem courts have not been faithful in adhering to the Framers' intent. This now-controversial Amendment may often appear to constrain police officers, who enjoy the support and trust of the vast majority of citizens. What may be most troubling is that many controversies involving Fourth Amendment claims are raised by "not very nice people." When a criminal is caught red-handed, it is difficult to fathom a rule which will set him free. Clearly this is not the kind of outcome that engenders widespread respect for this protection. What is less understood by society is that while the Fourth Amendment has allowed some obviously guilty criminals to go free, it also stands guard for the common man in the most basic way. The occasional suppression of illegally obtained yet probative evidence has long been considered a necessary cost of reserving overriding constitutional values: "There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few to protect the privacy of us all." The "privacy of us all" is exactly what is at stake, especially if the Supreme Court continues to tolerate, and even promulgate, the unofficial "drug exception" to the Fourth Amendment. Currently, courts are split on whether the government's use of a Forward Looking Infrared Device (FLID) to scan the heat patterns of a person's home, in an effort to detect marijuana grow operations, is a "search" within the meaning of the Fourth Amendment. The capabilities of this new tool are extraordinary. The FLID actually enables the government to determine what is occurring inside a homeowner's residence, while in aircraft hovering overhead. Thus, it enables them to "see through walls" and determine the activities therein. This highly intrusive, highly Orwellian device is among the most advanced and assailing of law enforcement's tools to combat the current drug epidemic in America. While this epidemic is a valid concern, it must take a backseat to our collective liberty. If it does not, it will sustain the ability of any social dilemma to deteriorate Americans' expectations of privacy. This comment will attempt to uncover the drug exception to the Fourth Amendment, while focusing on various courts' analyses of whether the government's use of the Forward Looking Infrared Device constitutes a search. Part I of this comment provides an overview of early Fourth Amendment jurisprudence. Part II illustrates the gradual demise of the Fourth Amendment, when the substantive offense involves narcotics. By analyzing United States v. Pinson, part III demonstrates how the FLID, the newest tool seeking to rid our country of drugs, is affecting our right to privacy. Lastly, part IV includes a proposal for the use of this tool in law enforcement.

Recommended Citation

Lynne M. Pochurek, From the Battlefront to the Homefront: Infrared Surveillance and the War on Drugs Place Privacy under Siege, 7 St. Thomas L. Rev. 137 (1994).
Available at: https://scholarship.stu.edu/stlr/vol7/iss1/6