Pubdate: Wed, 27 Sep 2000
Source: New York Times (NY)
Copyright: 2000 The New York Times Company
Contact:  229 West 43rd Street, New York, NY 10036
Fax: (212) 556-3622
Author: Linda Greenhouse


WASHINGTON, Sept. 26 - While the Supreme Court's decision not to hear the 
Microsoft case grabbed the headlines, the justices were also busy today 
adding a dozen new cases to their docket for the new term that opens on Monday.

Culled from the hundreds of appeals that accumulated during the summer 
recess, the new cases present a wide assortment of issues, including 
criminal law, immigration law, questions of prison inmates' free-speech 
rights and interpretations of federal civil rights, labor and disability law.

One new case assured the new session's status as an important term for the 
Fourth Amendment law of search and seizure, already the subject of three 
cases the justices had scheduled for argument during the coming weeks. The 
case considers whether the use by the police of a thermal imaging device to 
detect heat patterns inside a home is a search that requires a warrant.

Because high-intensity lights are often used for cultivating marijuana 
plants indoors, thermal imagers, which translate heat patterns into a 
visual design, are increasingly popular law enforcement tools for detecting 
marijuana-growing operations. Defendants often challenge the use of the 
devices as an unconstitutional search, and the lower courts have reached 
conflicting results.

In the case accepted today, the federal appeals court in San Francisco 
affirmed the conviction of an Oregon man for growing marijuana in his home. 
A suggestive heat pattern was detected by a device called an Agema 
Thermovision 210, enabling the police to obtain a warrant to search Danny 
Lee Kyllo's house. The house was not randomly chosen for surveillance; Mr. 
Kyllo's wife had been arrested on a drug charge, and the police suspected 
that the couple were part of a conspiracy to grow and distribute marijuana 
in the area.

Mr. Kyllo conditionally pleaded guilty while challenging the use of the 
imager as an unconstitutional search. He initially won his case before the 
United States Court of Appeals for the Ninth Circuit, but the appellate 
court changed its mind after one judge retired and issued a new opinion 
declaring that thermal imaging was not a search. The device "intruded into 
nothing" and did not violate any reasonable expectation of privacy, the 
1999 opinion said.

In his Supreme Court appeal, Kyllo v. United States, No. 99-8508, Mr. Kyllo 
said that to the contrary, his case "raises the fundamental question of 
whether the Fourth Amendment's guarantee of personal security in one's home 
must yield to scientific advances that render our traditional barriers of 
privacy obsolete." He said the appeals court's approach "subjugates the 
security and privacy of a citizen's home to advancing technological 

This is not the first time the court has had to apply the Fourth 
Amendment's prohibition of unreasonable searches in the context of 
technological development. In a landmark 1967 case, Katz v. United States, 
the court ruled that placing an electronic listening device on the outside 
of a phone booth was a search, even though no physical intrusion on private 
space occurred. In a 1984 case, United States v. Karo, the court ruled that 
the government's placement of a beeper inside a can, to track the can's 
movements, was a search.

Opposing the court's review of Mr. Kyllo's case, the Justice Department 
told the justices that the use of the imager "did not intrude on any 
expectation of privacy that society is prepared to recognize as 
reasonable." The government's brief said the imager revealed "only 
amorphous hot spots, not intimate details" of activities within the house.

This new case is the fourth significant Fourth Amendment case the court has 
agreed to review in the new term. On Tuesday, the justices will hear 
arguments in City of Indianapolis v. Edmond, No. 99-1030, on whether a 
drug-interdiction checkpoint on a city street, at which a drug-detecting 
dog sniffs the stopped cars, violates the Fourth Amendment.

On Oct. 4, in Ferguson v. City of Charleston, No. 99-936, the court will 
hear arguments on whether drug tests of the urine of pregnant women who 
came to a municipal hospital for care, with any positive results forwarded 
to the police, were unconstitutional searches.

And in December, in Atwater v. City of Lago Vista, Tex., No. 99-1408, the 
court will hear arguments on whether a full-scale custodial arrest - 
including handcuffs, booking, and an hour in a jail cell - for driving 
without a seat belt amounted to an unconstitutional seizure when the 
offense carried a maximum penalty of $50 under Texas law.

The 12 cases accepted today brought the number of granted cases to 47, 
filling the court's argument calendar into early February. The justices 
will add more cases as the new term proceeds. These were among the day's 
other highlights:

Discrimination Suits

In a potentially important civil rights case, the court agreed to decide 
whether individuals can sue state agencies for administering federal grants 
in a manner that has the effect of discriminating on the basis of race or 
national origin.

The case is an appeal by the state of Alabama, where a requirement that 
driver's license tests be administered only in English was successfully 
challenged in a class-action lawsuit on the ground that the requirement had 
a discriminatory impact on foreign-born drivers. The case was brought under 
Title VI of the Civil Rights Act of 1964, which bars discrimination in 
programs that receive federal money - as all state motor vehicle 
departments do.

While it is clear that Title VI bars intentional discrimination, the law is 
unsettled on whether Congress intended to authorize private lawsuits 
against agencies for policies that have a discriminatory impact regardless 
of intent.

The distinction is important in discrimination law because the court has 
interpreted the Constitution's equal-protection guarantee as prohibiting 
only intentional discrimination. The extent to which Congress can define 
rights more expansively than the Constitution itself is a growing focus of 
scrutiny by the court. This case, Alexander v. Sandoval, No. 99-1908, is an 
appeal from a ruling by the United States Court of Appeals for the 11th 
Circuit, in Atlanta.

Citizenship Rights

The court agreed to decide whether a distinction in federal immigration law 
between out-of-wedlock children born overseas to American mothers and those 
born to American fathers amounts to unconstitutional sex discrimination.

Under the law, those whose unmarried mothers are United States citizens are 
deemed themselves to be United States citizens at birth, a privilege denied 
those whose mothers are foreign nationals and whose fathers are the 
American citizens. The American father must act to formally acknowledge 
paternity before the child is 18.

Two years ago, the court split deeply in a case that raised this issue and 
failed to resolve it, though five justices indicated their belief that the 
law was unconstitutional. The latest case, Nguyen v. I.N.S., No. 99- 2071, 
was brought by a Vietnamese-born son and the American father who raised 
him. Deemed a noncitizen, the son is facing deportation to Vietnam 
following conviction on an assault charge. The father did not make a formal 
declaration before the son, now 31, turned 18, and the Board of Immigration 
Appeals refused to consider DNA evidence that proves paternity. The United 
States Court of Appeals for the Fifth Circuit, in New Orleans, upheld the 
law, which the father and son are challenging as embodying "sex stereotypes 
relating to men's and women's parenting roles."
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