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 Website: http://www.nytimes.com/ Forum: http://forums.nytimes.com/comment/ Author: Linda Greenhouse SUPREME COURT ADDS TO ITS CALENDAR 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 development." 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." - --- MAP posted-by: Jo-D