FlyerTalk Forums - View Single Post - PV: Screening before the checkpoint is back in style
Old Apr 26, 2009 | 4:24 am
  #28  
Trollkiller
 
Join Date: Jul 2008
Location: Florida
Posts: 3,006
Originally Posted by Ari
No it isn't.

Kyllo dealt with:
  1. A search of a home, one's castle: "“At the very core” of the Fourth Amendment “stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511 (1961)."
  2. A search that can show intimate detail: "The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider 'intimate' . . ." (This is Scalia being cute-- he's really saying that the themal image can tell when a couple is having sex-- and in what position(s))
  3. A search the target didn't know about.

None of those three apply to this new toy.
If a thermo imager showing "intimate details" of the time a person takes a bath is protected how much more are the intimate details of what I have in my pants protected?

Amendment 4 - Search and Seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
If you notice the 4th Amendment makes no difference between persons, papers, houses or effects in the amount of protection each is provided. The Supreme Court's ruling in Kyllo did not differentiate between persons, papers, houses or effects in the amount of 4th Amendment protection each is afforded.

Your whole argument that Kyllo ruling hinged on the "home is a castle" thought process is wrong. Kyllo ruling hinged on the fact that using technology to detect legal as well as illegal activity where the person has a reasonable expectation of privacy, without a warrant, is unconstitutional. The fact that the area being searched was a home is irrelevant.

In ILLINOIS v. CABALLES the justices affirmed the Kyllo ruling goes well beyond the confines the "castle".

ILLINOIS v. CABALLES

This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U. S. 27 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity--in that case, intimate details in a home, such as "at what hour each night the lady of the house takes her daily sauna and bath." Id., at 38. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
A car is not a house, but the Justices felt the need to explain why ILLINOIS v. CABALLES did not conflict with Kyllo. If Kyllo dealt with strictly a home search, as you insist, the Justices would have had no need to explain.

KYLLO v. UNITED STATES

In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States, 389 U. S. 347 (1967). Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth-a location not within the catalog ("persons, houses, papers, and effects") that the Fourth Amendment protects against unreasonable searches. We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably relied" upon the privacy of the telephone booth. Id., at 353. As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. See id., at 361. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur-even when the explicitly protected location of a house is concerned-unless "the individual manifested a subjective expectation of privacy in the object of the challenged search," and "society [is] willing to recognize that expectation as reasonable." Ciraolo, supra, at 211.
I would hope that you will agree that I have an expectation of privacy when it comes to what i have in my pants.

Katz v. United States

For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U. S. 206, 385 U. S. 210; United States v. Lee, 274 U. S. 559, 274 U. S. 563. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
As you see in Katz, the 4th Amendment protects people, not places. Therefore the Kyllo ruling can not protect just "castles".

The posting of the signs is meaningless and does not dilute the Constitutional protections of the 4th Amendment. Contrary to your contentions, the blind, stupid or illiterate have the same Constitutional protections as the literate, sighted and intelligent.

We have not even touched on the fact that the TSA is illegally acting outside their administrative search boundaries.

I am sorry your argument to this point fails miserably.

BTW Unless you read something I didn't, Scalia was not implying sex with the use of the word "intimate".

I look forward to your counter argument.

Last edited by Trollkiller; Apr 26, 2009 at 4:27 am Reason: Fixed a broken quote
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