Editor's Note
California Lawyer

August 2013

It's not everyday that Justice Antonin Scalia sides with Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. But as Maryland v. King illustrated just two months ago, when it comes to the Fourth Amendment, the traditional alliances that define liberals and conservatives on the U.S. Supreme Court do not apply.

In King the question was whether police could legally take a DNA sample from a criminal suspect without a warrant. Writing for the majority, Justice Anthony Kennedy concluded that they could. "Taking and analyzing a cheek swab of the arrestee's DNA is," he observed, "like fingerprinting and photographing, a legitimate police booking procedure that is reasonable [to identify a suspect] under the Fourth Amendment."

But in his dissent, Scalia suggested that the real motive here was to develop a DNA database to help solve old crimes. "Solving crimes is a noble objective," Scalia wrote, "but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law enforcement searches. The Fourth Amendment must prevail."

For Scalia, King is just the latest milestone in a journey that began almost a quarter century ago, when he was part of a high-court majority ruling that police can spy on private property from an aircraft without a warrant (Florida v. Riley). But in 2001, in a 5-4 decision, Scalia wrote for the majority that police could not employ thermal-imaging technology to examine the exterior of a suspect's home without a warrant (Kyllo v. United States). Then, less than three months before King, Scalia in another 5-4 decision concluded that the warrantless use of a drug-sniffing dog around the exterior of a suspect's home had violated the suspect's property rights (Florida v. Jardines).

"I just hate Fourth Amendment cases," Scalia confided in an interview broadcast four years ago on C-SPAN, noting that the particulars in these situations often conspire against broadly defined rules. Such cases can also be very tough on the sort of originalism that Scalia loves to champion, especially when they revolve around technology that our Framers couldn't possibly have imagined.

All of which makes me wonder: What on earth will the justices do when, as seems inevitable, they get to decide a Fourth Amendment case that concerns drones?

Clearly, these video-equipped, highly maneuverable, "flying cell phones" raise serious privacy concerns. However, as journalist Edward Humes points out in this month's cover story ("Eyes in the Sky"), drones also can be used in ways that we can all feel good about. They promise to make both firefighting and search-and-rescue operations much more effective, for example. And they could revolutionize agriculture.

"It's unfortunate," says Humes, "that in this country we've emphasized the scariest applications," which threaten to undermine our civil liberties. And it would be a shame, he adds, if we let those concerns entirely taint our view of this technology. Ultimately, says Humes, we need a balanced approach, one that builds in the necessary safeguards without preventing us from realizing the potential benefits.

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