46
Stevens, J., dissenting
justified, that certain facts will not come to the attention of the authorities"). The interest in concealing the heat escaping from one's house pales in significance to "the chief evil against which the wording of the Fourth Amendment is directed," the "physical entry of the home," United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297, 313 (1972), and it is hard to believe that it is an interest the Framers sought to protect in our Constitution.
Since what was involved in this case was nothing more than drawing inferences from off-the-wall surveillance, rather than any "through-the-wall" surveillance, the officers' conduct did not amount to a search and was perfectly reasonable.4
II
Instead of trying to answer the question whether the use of the thermal imager in this case was even arguably unreasonable, the Court has fashioned a rule that is intended to provide essential guidance for the day when "more sophisticated systems" gain the "ability to 'see' through walls and other opaque barriers." Ante, at 36, and n. 3. The newly minted rule encompasses "obtaining [1] by sense-enhancing technology [2] any information regarding the interior of the home [3] that could not otherwise have been obtained without physical intrusion into a constitutionally protected area . . . [4] at least where (as here) the technology in question is not in general public use." Ante, at 34 (internal quotation marks omitted). In my judgment, the
4 This view comports with that of all the Courts of Appeals that have resolved the issue. See 190 F. 3d 1041 (CA9 1999); United States v. Robinson, 62 F. 3d 1325 (CA11 1995) (upholding warrantless use of thermal imager); United States v. Myers, 46 F. 3d 668 (CA7 1995) (same); United States v. Ishmael, 48 F. 3d 850 (CA5 1995) (same); United States v. Pinson, 24 F. 3d 1056 (CA8 1994) (same). But see United States v. Cusumano, 67 F. 3d 1497 (CA10 1995) (warrantless use of thermal imager violated Fourth Amendment), vacated and decided on other grounds, 83 F. 3d 1247 (CA10 1996) (en banc).
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