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. More economical night vision goggles are available at sporting goods stores. 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. Night vision goggles do not penetrate walls, detect something that would otherwise be invisible, or provide information that would otherwise require physical intrusion. The goggles merely amplify ambient light to see something that is already exposed to public view. 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.
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.
Posted on 23 December, 2010 by Mathias Vermeulen
Orin Kerr reports that a state court in People v. Lieng, 2010 Cal. App. LEXIS 2106 (1st Dist. December 14, 2010), distinguished the goggles from the infrared thermal imaging device used in Kyllo v. United States: