Supreme Court of the United States
Danny Lee KYLLO, Petitioner,
v.
UNITED STATES.
No. 99-8508.
Argued Feb. 20, 2001.
Decided June 11, 2001.
After unsuccessfully moving to suppress evidence, defendant entered conditional guilty plea to manufacturing marijuana and appealed. Following remand, 37 F.3d 526, the United States District Court for the District of Oregon, Helen J. Frye, J., again denied suppression motion, and defendant appealed. The Ninth Circuit Court of Appeals, 190 F.3d 1041, affirmed. Certiorari was granted. The United States Supreme Court, Justice Scalia, held that: (1) use of sense-enhancing technology to gather any information regarding interior of home that could not otherwise have been obtained without physical intrusion into constitutionally protected area constitutes a "search," and (2) use of thermal imaging to measure heat emanating from home was search.
Reversed and remanded.
Justice Stevens filed a dissenting opinion, in which Chief Justice Rehnquist and Justices O'Connor and Kennedy joined.
West Headnotes
[1] Searches and Seizures 
23
With few
exceptions, the question whether a warrantless search of a home is reasonable
and hence constitutional must be answered no.
U.S.C.A.
Const.Amend. 4.
[2] Searches and Seizures 13.1
[2] Searches
and Seizures 21
Obtaining
by sense-enhancing technology any information regarding the interior of a home
that could not otherwise have been obtained without physical intrusion into a constitutionally protected
area, constitutes a "search"--at least where the technology in
question is not in general public use. U.S.C.A.
Const.Amend. 4.
[3] Controlled Substances 128
(Formerly 138k185(1) Drugs and Narcotics)
[3] Searches
and Seizures 13.1
Police
engaged in unlawful "search" when they used thermal imaging device
without warrant to scan home to determine whether heat emanating from home was
consistent with use of high-intensity lamps employed in indoor marijuana
growing operation. U.S.C.A.
Const.Amend. 4.
[4] Searches and Seizures 13.1
Use of
thermal imaging devices to gather information about heat in home's interior is
not removed from scope of Fourth Amendment search merely because device captures only heat radiating from
external surface of house, and thus involves "off-the-wall" rather
than "through-the-wall" observation. U.S.C.A.
Const.Amend. 4.
[5] Searches and Seizures 13.1
Information
gathered through use of thermal imaging to measure heat emanating from exterior
of home is product of a search even if relevant information regarding heat use
in interior of home must be inferred from information provided by device. U.S.C.A.
Const.Amend. 4.
[6] Controlled Substances 128
(Formerly 138k185(1) Drugs and Narcotics)
[6] Searches and
Seizures 37
Prohibition
against warrantless use of thermal imaging devices is not limited to "intimate details" regarding home;
such limitation would be wrong in principle, in that Fourth Amendment's
protection of home has never been tied to measurement of quality of information
obtained, and impracticable in application, in that it would not provide a
workable accommodation between law enforcement needs and Fourth Amendment
interests, and would require development of jurisprudence specifying which home
activities are "intimate" and which are not. U.S.C.A.
Const.Amend. 4.
[7] Searches and Seizures 13.1
[7] Searches
and Seizures 21
[7] Searches
and Seizures 37
Where the
Government uses a device that is not in general public use, to explore details
of the home that would previously have been unknowable without physical intrusion, the surveillance is a
"search"and is presumptively unreasonable without a warrant. U.S.C.A.
Const.Amend. 4.
**2039 Syllabus
[FN*]
FN* The syllabus
constitutes no part of the opinion of the Court but has been prepared by the
Reporter of Decisions for the convenience of the reader. See United
States v. Detroit Timber & Lumber Co.,
200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
*27 Suspicious that marijuana was being
grown in petitioner Kyllo's home in a triplex, agents used a thermal-imaging
device to scan the triplex to determine if the amount of heat emanating from it
was consistent with the high-intensity lamps typically used for indoor
marijuana growth. The scan showed that
Kyllo's garage roof and a side wall were relatively hot compared to the rest of
his home and substantially warmer than the neighboring units. Based in part on the thermal imaging, a
Federal Magistrate Judge issued a warrant to search Kyllo's home, where the
agents found marijuana growing. After
Kyllo was indicted on a federal drug charge, he unsuccessfully moved to
suppress the evidence seized from his home and then entered a conditional
guilty plea. The Ninth Circuit
ultimately affirmed, upholding the thermal imaging on the ground that Kyllo had
shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his
home. Even if he had, ruled the court,
there was no objectively reasonable expectation of privacy because the thermal
imager did not expose any intimate details of Kyllo's life, only amorphous hot
spots on his home's exterior.
Held:
Where, as here, the Government uses a device that is not in general
public use, to explore details of a private home that would previously have
been unknowable without physical intrusion, the surveillance is a Fourth
Amendment "search," and is presumptively unreasonable without a
warrant. Pp. 2041-2047.
(a) The question whether a warrantless search
of a home is reasonable and hence constitutional must be answered no in most
instances, but the antecedent question whether a Fourth Amendment
"search" has occurred is not so simple. This Court has approved
warrantless visual surveillance of a home, see California
v. Ciraolo,
476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210,
ruling that visual observation is no "search" at all, see Dow
Chemical Co. v. United States,
476 U.S. 227, 234-235, 239, 106 S.Ct. 1819, 90 L.Ed.2d 226. In assessing when a search is not a search, the Court has
adapted a principle first enunciated in Katz
v. United States,
389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576: A "search" does not occur--even
when its object is a house explicitly protected by **2040 the Fourth
Amendment--unless the individual manifested a subjective *28 expectation
of privacy in the searched object, and
society is willing to recognize that expectation as reasonable, see, e.g., California
v. Ciraolo, supra,
at 211, 106 S.Ct. 1809. Pp. 2041-2043.
(b) While it may be difficult to refine the Katz test in some instances, in the case of the search of a
home's interior--the prototypical and hence most commonly litigated area of
protected privacy--there is a ready criterion, with roots deep in the common
law, of the minimal expectation of privacy that exists, and that is
acknowledged to be reasonable.
To withdraw protection of this minimum expectation would be to permit
police technology to erode the privacy guaranteed by the Fourth Amendment. Thus, obtaining by sense-enhancing
technology any information regarding the home's interior that could not
otherwise have been obtained without physical "intrusion into a
constitutionally protected area," Silverman
v. United States,
365 U.S. 505, 512, 81 S.Ct. 679, 5 L.Ed.2d 734,
constitutes a search--at least where (as here) the technology in question is
not in general public use. This assures
preservation of that degree of privacy against government that existed when the
Fourth Amendment was adopted. P. 2043.
(c) Based on this criterion, the information
obtained by the thermal imager in this case was the product of a search. The Court rejects the Government's argument
that the thermal imaging must be upheld because it detected only heat radiating
from the home's external surface. Such
a mechanical interpretation of the Fourth Amendment was rejected in Katz, where the eavesdropping device in question picked up only sound waves that
reached the exterior of the phone booth to which it was attached. Reversing that approach would leave the
homeowner at the mercy of advancing technology--including imaging technology
that could discern all human activity in the home. Also rejected is the Government's contention
that the thermal imaging was constitutional because it did not detect
"intimate details." Such an
approach would be wrong in principle because, in the sanctity of the home, all
details are intimate details. See, e.g.,
United
States v. Karo,
468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530; Dow
Chemical, supra,
at 238, 106 S.Ct. 1819, distinguished. It would also be impractical in application,
failing to provide a workable accommodation between law enforcement needs and
Fourth Amendment interests. See Oliver
v. United States,
466 U.S. 170, 181, 104 S.Ct. 1735, 80 L.Ed.2d 214. Pp. 2044-2046.
(d) Since the imaging in this case was an
unlawful search, it will remain for the District Court to determine whether,
without the evidence it provided, the search warrant was supported by probable
cause--and if not, whether there is any other basis for supporting admission of
that evidence. Pp. 2046-2047.
190
F.3d 1041, reversed and remanded.
*29 SCALIA, J., delivered the opinion of the Court, in which SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a dissenting
opinion, in which REHNQUIST, C.J., and O'CONNOR and KENNEDY, JJ., joined, post, p. 2047.
Kenneth
Lerner, for petitioner.
Michael
R. Dreeben, Washington, DC, for respondent.
Justice SCALIA delivered the opinion of the Court.
This case presents the question whether the
use of a thermal-imaging device aimed at a private home from a public street to
**2041 detect relative amounts of heat within the home constitutes a
"search" within the meaning of the Fourth Amendment.
I
In 1991 Agent William Elliott of the United
States Department of the Interior came to suspect that marijuana was being
grown in the home belonging to petitioner Danny Kyllo, part of a triplex on
Rhododendron Drive in Florence, Oregon.
Indoor marijuana growth typically requires high-intensity lamps. In order to determine whether an amount of
heat was emanating from petitioner's home consistent with the use of such
lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an
Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation,
which virtually all objects emit but which is not visible to the naked
eye. The imager converts radiation into images based on
relative warmth--black *30 is cool, white is hot, shades of gray connote
relative differences; in that respect,
it operates somewhat like a video camera showing heat images. The scan of Kyllo's home took only a few
minutes and was performed from the passenger seat of Agent Elliott's vehicle
across the street from the front of the house and also from the street in back
of the house. The scan showed that the
roof over the garage and a side wall of petitioner's home were relatively hot
compared to the rest of the home and substantially warmer than neighboring
homes in the triplex. Agent Elliott
concluded that petitioner was using halide lights to grow marijuana in his
house, which indeed he was. Based on
tips from informants, utility bills, and the thermal imaging, a Federal Magistrate
Judge issued a warrant authorizing a search of petitioner's home, and the
agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of
manufacturing marijuana, in violation of 21
U.S.C. § 841(a)(1). He unsuccessfully
moved to suppress the evidence seized from his home and then entered a
conditional guilty plea.
The Court of Appeals for the Ninth Circuit
remanded the case for an evidentiary hearing regarding the intrusiveness of
thermal imaging. On remand the District
Court found that the Agema 210 "is a non-intrusive device which emits no
rays or beams and shows a crude visual image of the heat being radiated from
the outside of the house"; it
"did not show any people or activity
within the walls of the structure";
"[t]he device used cannot penetrate walls or windows to reveal
conversations or human activities";
and "[n]o intimate details of the home were observed." Supp.App. to Pet. for Cert. 39-40. Based on these findings, the District Court
upheld the validity of the warrant that relied in part upon the thermal
imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially
reversed, 140
F.3d 1249 (1998), but that *31 opinion was
withdrawn and the panel (after a change in composition) affirmed, 190
F.3d 1041 (1999), with Judge Noonan
dissenting. The court held that
petitioner had shown no subjective expectation of privacy because he had made
no attempt to conceal the heat escaping from his home,
id.,
at 1046, and even if he had, there was no
objectively reasonable expectation of privacy because the imager "did not
expose any intimate details of Kyllo's life," only "amorphous 'hot
spots' on the roof and exterior wall," id.,
at 1047.
We granted certiorari. 530
U.S. 1305, 121 S.Ct. 29, 147 L.Ed.2d 1052 (2000).
II
[1] The Fourth Amendment provides that "[t]he right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated." "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. **2042United
States,
365 U.S. 505, 511, 81 S.Ct. 679, 5
L.Ed.2d 734 (1961). With few exceptions, the
question whether a warrantless search of a home is reasonable and hence
constitutional must be answered no. See Illinois
v. Rodriguez,
497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); Payton
v. New York,
445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).
On the other hand, the antecedent question
whether or not a Fourth Amendment
"search" has occurred is not so simple under our precedent. The permissibility of ordinary visual
surveillance of a home used to be clear because, well into the 20th century, our
Fourth Amendment jurisprudence was tied to common-law trespass. See, e.g., Goldman
v. United States,
316 U.S. 129, 134-136, 62 S.Ct. 993, 86 L.Ed. 1322 (1942); Olmstead
v. United States,
277 U.S. 438, 464-466, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Cf. Silverman
v. United States, supra,
at 510-512, 81 S.Ct. 679 (technical trespass not
necessary for Fourth Amendment violation;
it suffices if there is "actual intrusion into a constitutionally
protected area"). Visual
surveillance was unquestionably lawful because " 'the *32 eye
cannot by the laws of England be guilty of a trespass.' " Boyd
v. United States,
116 U.S. 616, 628, 6 S.Ct. 524, 29 L.Ed. 746 (1886)
(quoting Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807
(K.B.1765)). We have since decoupled
violation of a person's Fourth Amendment rights from trespassory violation of his property, see Rakas
v. Illinois,
439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), but the lawfulness of warrantless visual surveillance of
a home has still been preserved. As we
observed in California
v. Ciraolo,
476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), "[t]he Fourth Amendment protection of the home has
never been extended to require law enforcement officers to shield their eyes
when passing by a home on public thoroughfares."
One might think that the new validating
rationale would be that examining the portion of a house that is in plain public
view, while it is a "search" [FN1] despite
the absence of trespass, is not an "unreasonable" one under the
Fourth Amendment. See Minnesota
v. Carter,
525 U.S. 83, 104, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (BREYER, J., concurring in judgment). But in fact we have held that visual
observation is no "search" at all--perhaps in order to preserve
somewhat more intact our doctrine that warrantless searches are presumptively
unconstitutional. See Dow
Chemical Co. v. United States,
476 U.S. 227, 234-235, 239, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986). 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, 88 S.Ct. 507, 19 L.Ed.2d 576 (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
*33 Fourth Amendment nonetheless protected Katz from the warrantless
eavesdropping because he "justifiably relied" upon the privacy of the
telephone booth. Id.,
at 353, 88 S.Ct. 507. 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, 88 S.Ct. 507. 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 **2043 in the
object of the challenged search," and "society [is] willing to
recognize that expectation as reasonable."
Ciraolo,
supra,
at 211, 106 S.Ct. 1809. We have applied this test in holding that it
is not a search for the police to use a pen register at the phone company to
determine what numbers were dialed in a private home, Smith
v. Maryland,
442 U.S. 735, 743-744, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and we have applied the test on two different occasions
in holding that aerial surveillance of private homes and surrounding areas does
not constitute a search, Ciraolo,
supra; Florida
v. Riley,
488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989).
FN1. When the Fourth
Amendment was adopted, as now, to "search" meant "[t]o look over or through for the
purpose of finding something; to
explore; to examine by inspection; as, to search the house for a book; to
search the wood for a thief."
N. Webster, An American Dictionary of the English Language 66 (1828)
(reprint 6th ed.1989).
The present case involves officers on a public
street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to
how much technological enhancement of ordinary perception from such a vantage
point, if any, is too much. While we
upheld enhanced aerial photography of an industrial complex in Dow
Chemical, we noted that we found "it
important that this is not an area immediately adjacent to a private
home, where privacy expectations are most heightened," 476
U.S., at 237, n. 4, 106 S.Ct. 1819 (emphasis in
original).
III
It would be foolish to contend that the degree
of privacy secured to citizens by the Fourth Amendment has been *34 entirely
unaffected by the advance of technology.
For example, as the cases discussed above make clear, the technology
enabling human flight has exposed to public view (and hence, we have said, to
official observation) uncovered portions of the house and its curtilage that
once were private. See Ciraolo,
supra,
at 215, 106 S.Ct. 1809. The question we confront today is what
limits there are upon this power of
technology to shrink the realm of guaranteed privacy.
[2][3] The Katz test--whether the individual has an expectation of privacy
that society is prepared to recognize as reasonable--has often been criticized
as circular, and hence subjective and unpredictable. See 1
W. LaFave, Search and Seizure § 2.1(d),
pp. 393-394 (3d ed.1996); Posner, The Uncertain Protection of Privacy
by the Supreme Court, 1979 S.Ct. Rev. 173, 188;
Carter,
supra,
at 97, 119 S.Ct. 469 (SCALIA, J.,
concurring). But see Rakas,
supra,
at 143-144, n. 12, 99 S.Ct. 421. While it may be difficult to refine Katz when the search of areas such as telephone booths,
automobiles, or even the curtilage and uncovered portions of residences is at
issue, in the case of the search of the interior of homes--the prototypical and
hence most commonly litigated area of protected privacy--there is a ready
criterion, with roots deep in the common law, of the minimal expectation of
privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum
expectation would be to permit police technology to erode the privacy
guaranteed by the Fourth Amendment. We
think that obtaining by sense-enhancing technology any information regarding
the interior of the home that could not otherwise have been obtained without
physical "intrusion into a constitutionally protected area," Silverman,
365 U.S., at 512, 81 S.Ct. 679, constitutes a
search--at least where (as here) the technology in question is not in general
public use. This assures preservation
of that degree of privacy against government
that existed when the Fourth Amendment was adopted. On the basis of this criterion, the *35
information obtained by the thermal imager in this case was the product of a
search.
[FN2]
FN2. The dissent's
repeated assertion that the thermal imaging did not obtain information
regarding the interior of the home, post, at 2048 (opinion of STEVENS,
J.), is simply inaccurate. A thermal
imager reveals the relative heat of various rooms in the home. The dissent may not find that information
particularly private or important, see post, at 2048, 2049, 2051, but
there is no basis for saying it is not information regarding the interior of
the home. The dissent's comparison of
the thermal imaging to various circumstances in which outside observers might
be able to perceive, without technology, the heat of the home--for example, by
observing snowmelt on the roof, post, at 2048--is quite irrelevant. The fact that equivalent information could
sometimes be obtained by other means does not make lawful the use of means that
violate the Fourth Amendment. The police might, for example, learn how many people
are in a particular house by setting up year-round surveillance; but that does not make breaking and entering
to find out the same information lawful.
In any event, on the night of January 16, 1992, no outside observer
could have discerned the relative heat of Kyllo's home without thermal imaging.
**2044
[4][5] The Government
maintains, however, that the thermal imaging must be upheld because it detected
"only heat radiating from the external surface of the house," Brief
for United States 26. The dissent makes
this its leading point, see post, at 2047, contending that there is a
fundamental difference between what it calls "off-the-wall"
observations and "through-the-wall surveillance." But just as a thermal imager captures only
heat emanating from a house, so also a powerful directional microphone picks up
only sound emanating from a house-and a satellite capable of scanning from many
miles away would pick up only visible light emanating from a house. We rejected such a mechanical interpretation
of the Fourth Amendment in Katz, where the eavesdropping device picked up only sound waves
that reached the exterior of the phone booth.
Reversing that approach would leave the homeowner at the mercy of
advancing technology--including imaging technology that could discern all human
*36 activity in the home. While
the technology used in the present case was relatively crude, the rule we adopt
must take account of more sophisticated systems that are already in use or in
development. [FN3] The dissent's reliance on the distinction
between "off-the-wall" and "through-the-wall" observation
is entirely incompatible with the dissent's belief, which we discuss below,
that thermal-imaging observations of the intimate details of a home are
impermissible. The most sophisticated thermal-imaging devices continue to measure
heat "off-the-wall" rather than "through-the-wall"; the dissent's disapproval of those more
sophisticated thermal-imaging devices, see post, at 2051, is an
acknowledgement that there is no substance to this distinction. As for the dissent's extraordinary assertion
that anything learned through "an inference" cannot be a search, see post,
at 2048-2049, that would validate even the "through-the-wall"
technologies that the dissent purports to disapprove. Surely the dissent does not believe that the
through-the-wall radar or ultrasound technology produces an 8-by-10 Kodak
glossy that needs no analysis (i.e., the making of inferences). And, of course, the novel proposition that
inference insulates a search is blatantly contrary to United
States v. Karo,
468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984),
where the police "inferred" from the activation of a beeper that a
certain can of ether was in the home.
The police activity *37 was held to be a search, and the search
was held unlawful. [FN4]
FN3. The ability to
"see" through walls and other opaque barriers is a clear, and
scientifically feasible, goal of law enforcement research and development. The National Law Enforcement and Corrections
Technology Center, a program within the United States Department of Justice,
features on its Internet Website projects that include a "Radar-Based
Through-the-Wall Surveillance System,"
"Handheld Ultrasound Through the Wall Surveillance," and a
"Radar Flashlight" that "will enable law enforcement officers to
detect individuals through interior building walls."
www.nlectc.org/techproj/ (visited May 3, 2001). Some devices may emit low levels of
radiation that travel "through-the-wall," but others, such as more
sophisticated thermal-imaging devices, are entirely passive, or
"off-the-wall" as the dissent puts it.
FN4. The dissent
asserts, post, at 2049, n. 3, that we have misunderstood its point,
which is not that inference insulates a search, but that inference alone
is not a search. If we
misunderstood the point, it was only in a good-faith effort to render the point
germane to the case at hand. The issue
in this case is not the police's allegedly unlawful inferencing, but their
allegedly unlawful thermal-imaging measurement of the emanations from a
house. We say such measurement is a
search; the dissent says it is not,
because an inference is not a search.
We took that to mean that, since the technologically enhanced emanations
had to be the basis of inferences before anything inside the house could be
known, the use of the emanations could not be a search. But the dissent certainly knows better than
we what it intends. And if it means
only that an inference is not a search, we certainly agree. That has no bearing, however, upon whether hi-tech measurement of
emanations from a house is a search.
**2045 [6] The Government also contends that the thermal imaging was
constitutional because it did not "detect private activities occurring in
private areas," Brief for United States 22. It points out that in Dow
Chemical we observed that the enhanced aerial
photography did not reveal any "intimate details." 476
U.S., at 238, 106 S.Ct. 1819. Dow
Chemical, however, involved enhanced aerial
photography of an industrial complex, which does not share the Fourth Amendment
sanctity of the home. The Fourth
Amendment's protection of the home has never been tied to measurement of the
quality or quantity of information obtained.
In Silverman, for example, we made clear that any physical invasion of
the structure of the home, "by even a fraction of an inch," was too
much, 365
U.S., at 512, 81 S.Ct. 679, and there is
certainly no exception to the warrant requirement for the officer who barely
cracks open the front door and sees nothing but the nonintimate rug on the
vestibule floor. In the home, our cases
show, all details are intimate details, because the entire area is held
safe from prying government eyes. Thus, in Karo,
supra, the only thing detected was a can of ether in the *38
home; and in Arizona
v. Hicks,
480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987),
the only thing detected by a physical search that went beyond what officers lawfully present could
observe in "plain view" was the registration number of a phonograph
turntable. These were intimate details
because they were details of the home, just as was the detail of how warm--or
even how relatively warm--Kyllo was heating his residence. [FN5]
FN5. The Government
cites our statement in California
v. Ciraolo,
476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986),
noting apparent agreement with the State of California that aerial surveillance
of a house's curtilage could become " 'invasive' " if " 'modern
technology' " revealed " 'those intimate associations, objects or
activities otherwise imperceptible to police or fellow citizens.' " Id.,
at 215, n. 3, 106 S.Ct. 1809 (quoting Brief for State of California 14-15). We think the
Court's focus in this secondhand dictum was not upon intimacy but upon
otherwise-imperceptibility, which is precisely the principle we vindicate
today.
Limiting the prohibition of thermal imaging to
"intimate details" would not only be wrong in principle; it would be impractical in application,
failing to provide "a workable accommodation between the needs of law
enforcement and the interests protected by the Fourth Amendment," Oliver
v. United States,
466 U.S. 170, 181, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). To begin with, there is no necessary connection
between the sophistication of the surveillance equipment and the
"intimacy" of the details that it observes-- which means that one
cannot say (and the police cannot be assured) that use of the relatively crude
equipment at issue here will always be lawful.
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";
and a much more sophisticated system might detect nothing more intimate
than the fact that someone left a closet light on. We could not, in other words, develop a rule
approving only that through-the-wall surveillance which identifies objects no
smaller than 36 by 36 inches, but would have to develop a jurisprudence
specifying which *39 home activities are "intimate" and which
are not. **2046 And even when (if
ever) that jurisprudence were fully developed, no police officer would be able
to know in advance whether his through-the-wall surveillance picks up
"intimate" details--and thus would be unable to know in advance
whether it is constitutional.
The dissent's proposed standard--whether the
technology offers the "functional equivalent of actual presence in the
area being searched," post, at 2050--would seem quite similar to
our own at first blush. The dissent
concludes that Katz was such a case, but then inexplicably asserts that if the
same listening device only revealed the volume of the conversation, the
surveillance would be permissible, post, at 2051. Yet if, without technology, the police could not discern volume without being actually
present in the phone booth, Justice STEVENS should conclude a search has
occurred. Cf. Karo,
468 U.S., at 735, 104 S.Ct. 3296 (STEVENS, J.,
concurring in part and dissenting in part) ("I find little comfort in the
Court's notion that no invasion of privacy occurs until a listener obtains some
significant information by use of the device .... A bathtub is a less private
area when the plumber is present even if his back is turned"). The same should hold for the interior heat
of the home if only a person present in the home could discern the heat. Thus the driving force of the dissent,
despite its recitation of the above standard, appears to be a distinction among
different types of information--whether the "homeowner would even care if
anybody noticed," post, at 2051.
The dissent offers no practical guidance for the application of this
standard, and for reasons already discussed, we believe there can be none. The people in their houses, as well as the
police, deserve more precision. [FN6]
FN6. The dissent argues
that we have injected potential uncertainty into the constitutional analysis by
noting that whether or not the technology is in general public use may be a
factor. See post, at 2050. That
quarrel, however, is not with us but with this Court's precedent. See Ciraolo,
supra,
at 215, 106 S.Ct. 1809 ("In an age where
private and commercial flight in the public airways is routine, it is
unreasonable for respondent to expect that
his marijuana plants were constitutionally protected from being observed with
the naked eye from an altitude of 1,000 feet"). Given that we can quite confidently say that
thermal imaging is not "routine," we decline in this case to
reexamine that factor.
[7] *40 We have said that the Fourth Amendment draws
"a firm line at the entrance to the house," Payton,
445 U.S., at 590, 100 S.Ct. 1371. That line, we
think, must be not only firm but also bright--which requires clear
specification of those methods of surveillance that require a warrant. While it
is certainly possible to conclude from the videotape of the thermal imaging
that occurred in this case that no "significant" compromise of the
homeowner's privacy has occurred, we must take the long view, from the original
meaning of the Fourth Amendment forward.
"The Fourth Amendment is to be construed in the light
of what was deemed an unreasonable search and seizure when it was adopted, and
in a manner which will conserve public interests as well as the interests and
rights of individual citizens." Carroll
v. United States,
267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
Where, as here, the Government uses a device
that is not in general public use, to explore details of the home that would previously
have been unknowable without physical intrusion, the surveillance is a
"search" and is presumptively unreasonable
without a warrant.
Since we hold the Thermovision imaging to have
been an unlawful search, it will remain for the District Court to determine
whether, without the evidence it provided, the search warrant issued in this
case was supported by probable cause--and if not, whether there is any other
basis for supporting admission of the evidence that the search pursuant to the
warrant produced.
**2047 *41
* * *
The judgment of the Court of Appeals is
reversed; the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Justice STEVENS, with whom THE CHIEF JUSTICE, Justice O'CONNOR, and
Justice KENNEDY join, dissenting.
There is, in my judgment, a distinction of
constitutional magnitude between
"through-the-wall surveillance" that gives the observer or
listener direct access to information in a private area, on the one hand, and
the thought processes used to draw inferences from information in the public
domain, on the other hand. The Court
has crafted a rule that purports to deal with direct observations of the inside
of the home, but the case before us merely involves indirect deductions from
"off-the-wall" surveillance, that is, observations of the exterior of the home. Those observations were made with a fairly
primitive thermal imager that gathered data exposed on the outside of
petitioner's home but did not invade any constitutionally protected interest in
privacy. [FN1] Moreover, I believe
that the supposedly "bright-line" rule the Court has created in
response to its concerns about future technological developments is
unnecessary, unwise, and inconsistent with the Fourth Amendment.
FN1. After an
evidentiary hearing, the District Court found:
"[T]he use of the thermal imaging device here was not
an intrusion into Kyllo's home. No
intimate details of the home were observed, and there was no intrusion upon the
privacy of the individuals within the home.
The device used cannot penetrate walls or windows to reveal conversations
or human activities. The device
recorded only the heat being emitted from the home." Supp.App. to Pet. for Cert. 40.
I
There is no need for the Court to craft a new
rule to decide this case, as it is controlled by established principles from *42
our Fourth Amendment jurisprudence. One
of those core principles, of course, is that "searches and seizures inside a home without a warrant
are presumptively unreasonable." Payton
v. New York,
445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (emphasis added).
But it is equally well settled that searches and seizures of property in
plain view are presumptively reasonable.
See id.,
at 586-587, 100 S.Ct. 1371. [FN2] Whether that property is residential or
commercial, the basic principle is the same:
" 'What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection.' " California
v. Ciraolo,
476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (quoting Katz
v. United States,
389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); see Florida
v. Riley,
488 U.S. 445, 449-450, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989); California
v. Greenwood,
486 U.S. 35, 40-41, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); Dow
Chemical Co. v. United States,
476 U.S. 227, 235-236, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986); **2048Air
Pollution Variance Bd. of Colo. v. Western Alfalfa Corp.,
416 U.S. 861, 865, 94 S.Ct. 2114, 40
L.Ed.2d 607 (1974). That is the principle implicated here.
FN2. Thus, for
example, we have found consistent with the Fourth Amendment, even absent a
warrant, the search and seizure of garbage left for collection outside the
curtilage of a home, California
v. Greenwood, 486
U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); the aerial surveillance of a fenced-in
backyard from an altitude of 1,000 feet, California
v. Ciraolo,
476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); the aerial observation of a partially exposed
interior of a residential greenhouse from 400 feet above, Florida
v. Riley,
488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989); the aerial photography of an industrial
complex from several thousand feet above, Dow
Chemical Co. v. United States,
476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986); and the observation of smoke emanating from
chimney stacks, Air
Pollution Variance Bd. of Colo. v. Western Alfalfa Corp.,
416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974).
While the Court "take[s] the long
view" and decides this case based largely on the potential of
yet-to-be-developed technology that might allow "through-the-wall
surveillance," ante, at 2045-2046;
see ante, at 2044, n. 3, this case involves nothing more than
off-the-wall surveillance by law enforcement officers to gather information
exposed to the general public from the outside of petitioner's home. All that the infrared camera did in this
case was passively measure heat emitted *43 from the exterior surfaces
of petitioner's home; all that those
measurements showed were relative differences
in emission levels, vaguely indicating that some areas of the roof and outside
walls were warmer than others. As still
images from the infrared scans show, see Appendix, infra, no details
regarding the interior of petitioner's home were revealed. Unlike an x-ray scan, or other possible
"through-the-wall" techniques, the detection of infrared radiation
emanating from the home did not accomplish "an unauthorized physical
penetration into the premises," Silverman
v. United States,
365 U.S. 505, 509, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961), nor did it "obtain information that it could not
have obtained by observation from outside the curtilage of the house," United
States v. Karo,
468 U.S. 705, 715, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984).
Indeed, the ordinary use of the senses might
enable a neighbor or passerby to notice the heat emanating from a building,
particularly if it is vented, as was the case here. Additionally, any member of the public might
notice that one part of a house is warmer than another part or a nearby
building if, for example, rainwater evaporates or snow melts at different rates
across its surfaces. Such use of the
senses would not convert into an unreasonable search if, instead, an adjoining
neighbor allowed an officer onto her property to verify her perceptions with a
sensitive thermometer. Nor, in my view,
does such observation become an unreasonable search if made from a distance
with the aid of a device that merely discloses that the exterior of one house,
or one area of the house, is much warmer
than another. Nothing more occurred in
this case.
Thus, the notion that heat emissions from the
outside of a dwelling are a private matter implicating the protections of the
Fourth Amendment (the text of which guarantees the right of people "to be
secure in their ... houses" against unreasonable searches and
seizures (emphasis added)) is not only unprecedented but also quite difficult
to take seriously. Heat waves, like
aromas that are generated in a kitchen, or *44 in a laboratory or opium
den, enter the public domain if and when they leave a building. A subjective expectation that they would
remain private is not only implausible but also surely not "one that
society is prepared to recognize as 'reasonable.' " Katz,
389 U.S., at 361, 88 S.Ct. 507 (Harlan, J.,
concurring).
To be sure, the homeowner has a reasonable
expectation of privacy concerning what takes place within the home, and the
Fourth Amendment's protection against physical invasions of the home should
apply to their functional equivalent. But the equipment in this case did not
penetrate the walls of petitioner's home, and while it did pick up
"details of the home" that were exposed to the public, ante,
at 2045, it did not obtain "any information regarding the interior
of the home," ante, at 2043 (emphasis added). In the Court's own words, based on what the
thermal imager "showed" regarding the outside of petitioner's home, the officers
"concluded" that petitioner was engaging in illegal activity inside
the home. Ante, at 2041. It would
be quite absurd to characterize their thought processes as
"searches," regardless of whether they inferred (rightly) that
petitioner was growing marijuana in his house, or (wrongly) that "the lady
of the house [was taking] her daily sauna and bath." Ante, at
2045. In either case, the only conclusions
the officers reached concerning the interior of the home were at least as
indirect as those that might have **2049 been inferred from the contents
of discarded garbage, see California
v. Greenwood,
486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988),
or pen register data, see Smith
v. Maryland,
442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979),
or, as in this case, subpoenaed utility records, see 190
F.3d 1041, 1043 (C.A.9 1999). For the first time in its history, the Court
assumes that an inference can amount to a Fourth Amendment violation. See ante, at 2044-2045. [FN3]
FN3. Although the
Court credits us with the "novel proposition that inference insulates a
search," ante, at 2044, our point simply is that an inference
cannot be a search, contrary to the Court's reasoning. See supra, at 2048 and this
page. Thus, the Court's use of United
States v. Karo,
468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984),
to refute a point we do not make underscores
the fact that the Court has no real answer (either in logic or in law) to the
point we do make. Of course, Karo itself does not provide any support for the Court's view
that inferences can amount to unconstitutional searches. The illegality in that case was "the
monitoring of a beeper in a private residence" to obtain information that
"could not have [been] obtained by observation from outside," id.,
at 714-715, 104 S.Ct. 3296, rather than any
thought processes that flowed from such monitoring.
*45 Notwithstanding the implications of
today's decision, there is a strong public interest in avoiding constitutional
litigation over the monitoring of emissions from homes, and over the inferences
drawn from such monitoring. Just as
"the police cannot reasonably be expected to avert their eyes from
evidence of criminal activity that could have been observed by any member of
the public," Greenwood,
486 U.S., at 41, 108 S.Ct. 1625, so too public
officials should not have to avert their senses or their equipment from
detecting emissions in the public domain such as excessive heat, traces of
smoke, suspicious odors, odorless gases, airborne particulates, or radioactive
emissions, any of which could identify hazards to the community. In my judgment, monitoring such emissions
with "sense-enhancing technology," ante, at 2043, and drawing useful conclusions from
such monitoring, is an entirely reasonable public service.
On the other hand, the countervailing privacy
interest is at best trivial. After all,
homes generally are insulated to keep heat in, rather than to prevent the
detection of heat going out, and it does not seem to me that society will
suffer from a rule requiring the rare homeowner who both intends to engage in
uncommon activities that produce extraordinary amounts of heat, and wishes to
conceal that production from outsiders, to make sure that the surrounding area
is well insulated. Cf. United
States v. Jacobsen,
466 U.S. 109, 122, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ("The concept of an interest in privacy that society
is prepared to recognize as reasonable is, by its very nature, critically
different from the mere expectation, however well *46 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, 92 S.Ct. 2125, 32 L.Ed.2d 752 (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. [FN4]
FN4. This view
comports with that of all the Courts of Appeals that have resolved the
issue. See 190
F.3d 1041 (C.A.9 1999); United
States v. Robinson,
62 F.3d 1325 (C.A.11 1995) (upholding warrantless
use of thermal imager); United
States v. Myers,
46 F.3d 668 (C.A.7 1995) (same); United
States v. Ishmael,
48 F.3d 850 (C.A.5 1995) (same); United
States v. Pinson,
24 F.3d 1056 (C.A.8 1994) (same). But see United
States v. Cusumano,
67 F.3d 1497 (C.A.10 1995) (warrantless use of
thermal imager violated Fourth Amendment), vacated and decided on other
grounds, 83
F.3d 1247 (C.A.10 1996) (en banc).
**2050 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 2044, 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 2043 (internal quotation
marks omitted). In my judgment, the *47
Court's new rule is at once too broad and too narrow, and is not justified by
the Court's explanation for its adoption.
As I have suggested, I would not erect a constitutional impediment to
the use of sense-enhancing technology unless it provides its user with the
functional equivalent of actual presence in the area being searched.
Despite the Court's attempt to draw a line
that is "not only firm but also bright," ante, at 2046, the
contours of its new rule are uncertain because its protection apparently
dissipates as soon as the relevant technology is "in general public
use," ante, at 2043. Yet
how much use is general public use is not even hinted at by the Court's
opinion, which makes the somewhat doubtful assumption that the thermal imager
used in this case does not satisfy that criterion. [FN5] In any event, putting aside its lack of
clarity, this criterion is somewhat perverse because it seems likely that the
threat to privacy will grow, rather than recede, as the use of intrusive
equipment becomes more readily available.
FN5. The record describes a device that numbers close to a
thousand manufactured units; that has a
predecessor numbering in the neighborhood of 4,000 to 5,000 units; that competes with a similar product
numbering from 5,000 to 6,000 units; and
that is "readily available to the public" for commercial, personal,
or law enforcement purposes, and is just an 800- number away from being rented
from "half a dozen national companies" by anyone who wants one. App. 18.
Since, by virtue of the Court's new rule, the issue is one of first
impression, perhaps it should order an evidentiary hearing to determine whether
these facts suffice to establish "general public use."
It is clear, however, that the category of
"sense-enhancing technology" covered by the new rule, ibid.,
is far too broad. It would, for
example, embrace potential mechanical substitutes for dogs trained to react
when they sniff narcotics. But in United
States v. Place,
462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), we held that a dog sniff that "discloses only the
presence or absence of narcotics" does "not constitute a 'search'
within the meaning of the Fourth Amendment," and it must follow that
sense-enhancing equipment that identifies nothing but illegal *48
activity is not a search either. Nevertheless, the use of such a device would
be unconstitutional under the Court's rule, as would the use of other new
devices that might detect the odor of deadly bacteria or chemicals for making a
new type of high explosive, even if the devices (like the dog sniffs) are
"so limited both in the manner in which" they obtain information and
"in the content of the information" they reveal. Ibid. If nothing more than that sort of information could be
obtained by using the devices in a public place to monitor emissions from a
house, then their use would be no more objectionable than the use of the
thermal imager in this case.
The application of the Court's new rule to
"any information regarding the interior of the home," ante, at
2043, is also unnecessarily broad. If
it takes sensitive equipment to detect an odor that identifies criminal conduct
and nothing else, the fact that the odor emanates from the interior of a **2051
home should not provide it with constitutional protection. See supra, at 2050 and this page. The criterion, moreover, is too sweeping in
that information "regarding" the interior of a home apparently is not
just information obtained through its walls, but also information concerning
the outside of the building that could lead to (however many) inferences
"regarding" what might be inside.
Under that expansive view, I suppose, an officer using an infrared
camera to observe a man silently entering the side door of a house at night carrying a pizza might
conclude that its interior is now occupied by someone who likes pizza, and by
doing so the officer would be guilty of conducting an unconstitutional
"search" of the home.
Because the new rule applies to information
regarding the "interior" of the home, it is too narrow as well as too
broad. Clearly, a rule that is designed
to protect individuals from the overly intrusive use of sense-enhancing
equipment should not be limited to a home.
If such equipment *49 did provide its user with the functional
equivalent of access to a private place-- such as, for example, the telephone
booth involved in Katz, or an office building--then the rule should apply to such
an area as well as to a home. See Katz,
389 U.S., at 351, 88 S.Ct. 507 ("[T]he
Fourth Amendment protects people, not places").
The final requirement of the Court's new rule,
that the information "could not
otherwise have been obtained without physical intrusion into a constitutionally
protected area," ante, at 2043 (internal quotation marks omitted),
also extends too far as the Court applies it.
As noted, the Court effectively treats the mental process of analyzing
data obtained from external sources as the equivalent of a physical intrusion
into the home. See supra, at
2048-2049. As I have explained,
however, the process of drawing inferences from data in the public domain
should not be characterized as a search.
The two reasons advanced by the Court as
justifications for the adoption of its new rule are both unpersuasive. First, the Court suggests that its rule is
compelled by our holding in Katz, because in that case, as in this, the surveillance
consisted of nothing more than the monitoring of waves emanating from a private
area into the public domain. See ante,
at 2044. Yet there are critical
differences between the cases. In Katz, the electronic listening device attached to the outside of
the phone booth allowed the officers to pick up the content of the conversation
inside the booth, making them the functional equivalent of intruders because
they gathered information that was otherwise available only to someone inside
the private area; it would be as if, in
this case, the thermal imager presented a view of the heat-generating activity
inside petitioner's home. By contrast,
the thermal imager here disclosed only the relative amounts of heat radiating
from the house; it would be as if, in Katz, the listening device disclosed only the relative *50
volume of sound leaving the booth, which presumably was discernible in the
public domain. [FN6] Surely, there is a significant difference
between the general and well-settled expectation that strangers will not have
direct access to the contents of private communications, on the one hand, and
the rather theoretical expectation that an occasional homeowner would even care if anybody noticed the relative
amounts of heat emanating from the walls of his house, on the other. It is pure hyperbole for the Court to
suggest that refusing to extend the holding of Katz to this case would leave the homeowner at the mercy of
"technology that could discern all human activity in the home." Ante, at 2044.
FN6. The use of the
latter device would be constitutional given Smith
v. Maryland,
442 U.S. 735, 741, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which upheld the use of pen registers to record numbers
dialed on a phone because, unlike "the listening device employed in Katz ... pen registers do not acquire the contents of
communications."
**2052 Second, the Court argues that
the permissibility of "through-the-wall surveillance" cannot depend
on a distinction between observing "intimate details" such as "the
lady of the house [taking] her daily sauna and bath," and noticing only
"the nonintimate rug on the vestibule floor" or "objects no
smaller than 36 by 36 inches." Ante,
at 2045-2046. This entire argument
assumes, of course, that the thermal imager in this case could or did perform
"through-the-wall surveillance" that could identify any detail
"that would previously have been unknowable without physical
intrusion." Ante, at 2046.
In fact, the device could not, see n. 1, supra, and did not, see
Appendix, infra, enable its user to identify either the lady of the
house, the rug on the vestibule floor, or anything else inside the house,
whether smaller or larger than 36 by 36 inches. Indeed, the vague thermal images of
petitioner's home that are reproduced in the Appendix were submitted by him to
the District Court as part of an expert report raising the question whether the
device could even take "accurate, consistent infrared images" of the *51
outside of his house.
Defendant's Exh. 107, p. 4. But even if the device could reliably show
extraordinary differences in the amounts of heat leaving his home, drawing the
inference that there was something suspicious occurring inside the residence--a
conclusion that officers far less gifted than Sherlock Holmes would readily
draw--does not qualify as "through-the-wall surveillance," much less
a Fourth Amendment violation.
III
Although the Court is properly and commendably
concerned about the threats to privacy that may flow from advances in the
technology available to the law enforcement profession, it has unfortunately
failed to heed the tried and true counsel of judicial restraint. Instead of concentrating on the rather mundane
issue that is actually presented by the case before it, the Court has
endeavored to craft an all-encompassing rule for the future. It would
be far wiser to give legislators an unimpeded opportunity to grapple with these
emerging issues rather than to shackle them with prematurely devised
constitutional constraints.
I respectfully dissent.
**2053 *52
APPENDIX
