Legal Commentary

Use of Night-Vision Goggles Not A Fourth Amendment Search

By Orin Kerr

So holds a state court in People v. Lieng, 2010 Cal. App. LEXIS 2106 (1st Dist. December 14, 2010), distinguishing the infrared thermal imaging device used in Kyllo v. United States:

Kyllo is inapplicable to this case. First, night goggles are commonly used by the military, police and border patrol, and they are available to the general public via Internet sales. (U.S. v. Vela (W.D.Tex. 2005) 486 F.Supp.2d 587, 590.) More economical night vision goggles are available at sporting goods stores. (Ibid.) Therefore, unlike thermal imaging devices, night vision goggles are available for general public use.

Second, state and federal courts addressing the use of night vision goggles since Kyllo have discussed the significant technological differences between the thermal imaging device used in Kyllo, and night vision goggles. (See, e.g., People v. Deutsch (1996) 44 Cal.App.4th 1224, 1228, fn. 1; U.S. v. Dellas, supra, 355 F.Supp.2d at p. 1107; U.S. v. Vela, supra, 486 F.Supp.2d at p. 590.) Night vision goggles do not penetrate walls, detect something that would otherwise be invisible, or provide information that would otherwise require physical intrusion. (U.S. v. Vela, supra, at p. 590.) The goggles merely amplify ambient light to see something that is already exposed to public view. (Ibid.) This type of technology is no more ?intrusive? than binoculars or flashlights, and courts have routinely approved the use of flashlights and binoculars by law enforcement officials. (Ibid., citing United States v. Dunn, supra, 480 U.S. at p. 294 [officers standing in open field used flashlight to look inside barn]). (See also People v. Capps (1989) 215 Cal.App.3d 1112, 1123, citing Texas v. Brown (1983) 460 U.S. 730, 740, overruled on another point in Horton v. California (1990) 496 U.S. 128 [?[t]he deputy?s use of his flashlight to illuminate the interior of the handbag is of no constitutional significance?]; United States v. Grimes (5th Cir. 1970) 426 F.2d 706, 708 [investigator used binoculars from 50 yards away to watch defendant load boxes into car]; Hodges v. United States (5th Cir. 1957) 243 F.2d 281, 282 [agent used binoculars when conducting surveillance of chicken house from pasture].)

For these reasons, we find that Kyllo is clearly distinguishable, and the use of night vision goggles by Sergeant Smith on both March 27 and April 3 on the Lieng property did not constitute a ?search? in violation of the Fourth Amendment.

Interesting. Thanks to FourthAmendment.com for the link.

Full post as published by The Volokh Conspiracy on December 22, 2010 (boomark / email).