In Horton v. California (1990), the Court eliminated the inadvertence requirement of the plain view doctrine

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The Plain View Doctrine After Horton and the Limits of Sensory Enhancement

Horton v. California (1990) and the Discarded Inadvertence Requirement

The elimination of the inadvertence requirement in Horton v. California (1990) opened the door for potential manipulation of the plain view doctrine by law enforcement. Here's how officers might exploit this:

• Pretextual Stops: Officers could stop individuals for minor infractions and then use the opportunity to scan their surroundings for evidence in plain view, essentially using the stop as a pretext for warrantless searches.
• "Plain View" Creation: Officers could manipulate situations to bring contraband into plain view. For example, during a consensual search for a weapon, an officer might strategically move objects to uncover hidden drugs.

While the inadvertence rule prevented such tactics to some degree, it also:

• Hindered Legitimate Investigations: Police might hesitate to investigate suspicious activity for fear of exceeding the scope of a search if evidence came into view unintentionally. This could hamper efforts to interdict crimes in progress.
• Created Ambiguity: The subjective nature of "inadvertence" led to confusion and litigation over what constituted an intentional versus unintentional discovery of evidence.

Plain View vs. Enhanced Senses and the Kyllo Decision

The plain view doctrine applies to a police officer's unaided senses (sight, smell, touch). It allows seizure of evidence visible from a lawful vantage point without a warrant. However, the Court distinguished this from using technological enhancements:

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• Plain View Relies on Unaided Senses: Police can only seize what is truly in plain view, limiting the scope of the search.
• Thermal Imaging Reveals Hidden Details: This technology exposes details about a home's interior that wouldn't be visible to the naked eye, potentially revealing private activity.

In Kyllo v. United States (2001), the Court ruled that using a thermal imaging device on a home was a warrantless search because it revealed intimate details of the dwelling's heat signature. This decision protects a reasonable expectation of privacy within the curtilage of a home, even from sophisticated technological observation.

Do I Agree with the Kyllo Decision?

Yes, I agree with the Kyllo decision. While it might create challenges for some investigations, it protects a fundamental privacy right. Technological advancements shouldn't erode the Fourth Amendment's safeguards against unreasonable searches. Law enforcement can still pursue warrants based on probable cause if they suspect criminal activity within a home.

The distinction between the plain view doctrine and thermal imaging lies in the nature of what is being observed. Unaided senses have limitations, while technology can pierce the veil of privacy and reveal details beyond plain view. Kyllo affirms that the use of such enhancements requires a warrant to ensure a proper balance between public safety and individual privacy rights in the face of evolving technology.