Pubdate: Tue, 12 Jun 2001
Source: USA Today (US)
Copyright: 2001 USA TODAY, a division of Gannett Co. Inc
Contact:  http://www.usatoday.com/news/nfront.htm
Details: http://www.mapinc.org/media/466
Page: 10A
Author: Joan Biskupic

JUSTICES RULE FOR PRIVACY POLICE USE OF THERMAL IMAGING CALLED AN 
UNREASONABLE SEARCH

Police may not routinely use a heat-sensing device to see if marijuana may 
be growing inside a private home, the Supreme Court ruled Monday in a 
decision that emphasized the importance of protecting people against 
intrusive new technologies.

The 5-4 ruling was written by Justice Antonin Scalia and disrupted the 
court's usual ideological lineup. Scalia attached great importance to the 
sanctity of the home and said that police may not explore details of what 
goes on there -- even from the outside -- without first going before a 
judge to obtain a search warrant.

''In the home, our cases show, all details are intimate details, because 
the entire area is held safe from prying government eyes,'' wrote Scalia, 
joined by Justices David Souter, Clarence Thomas, Ruth Bader Ginsburg and 
Stephen Breyer. The majority reversed a lower court decision upholding a 
thermal scan of an Oregon man's home. Scalia's opinion said such 
surveillance is a ''search'' covered by the Fourth Amendment prohibition 
against unreasonable searches and seizures.

Dissenting justices noted that the infrared camera in the case measured the 
heat emitted from the exterior of the home. Because the scrutiny was 
''off-the-wall surveillance, rather than any through-the-wall surveillance, 
the officers' conduct did not amount to a search and was perfectly 
reasonable,'' they said.

The case was one of several police disputes the court handled this term 
that weighed the competing interests between the government's ''war on 
drugs'' and concerns for infringements on civil liberties.

Thermal imaging converts radiation into images based on the degree of heat. 
(For example, black is cool and white is hot.) In January 1992, when 
federal agents targeted the Florence, Ore., home of Danny Lee Kyllo, the 
scan showed that the roof over the garage and a side wall were hotter than 
the rest of the home.

They concluded Kyllo was using special lights to grow marijuana in the 
house. Using that imaging data, tips from informants and utility bills, 
agents persuaded a federal judge to issue a search warrant. Inside, agents 
found more than 100 plants growing.

Kyllo pled guilty to manufacturing marijuana but reserved the right to 
challenge the trial judge's denial of his motion to suppress the evidence 
from the thermal scan. The U.S. Court of Appeals for the 9th Circuit 
rejected Kyllo's claim. It said he had no reasonable expectation of privacy 
in the heat emitted from his home.

In reversing that ruling Monday, the high court reiterated that ''the 
Fourth Amendment draws a firm line at the entrance to the house.''

Homeowners should not be ''at the mercy of advancing technology,'' Scalia 
said. ''While the technology used in the present case was relatively crude, 
the rule we adopt must take account of more sophisticated systems that are 
already in use or in development,'' he wrote.

Scalia rejected the federal government's arguments that the thermal imaging 
was constitutional because it did not focus on ''private activities'' in 
''private areas'' of the house.

The dissenting justices, in an opinion written by Justice John Paul 
Stevens, distinguished between surveillance that goes ''through the wall'' 
to detect activities and mere scrutiny of emissions effectively ''in plain 
view'' that are interpreted by police.

Because the thermal imaging in Kyllo's case was deemed ''an unlawful 
search,'' a lower court judge will now have to determine whether, without 
the scan evidence, the warrant would have been issued. Kenneth Lerner, 
Kyllo's lawyer, said Monday that he hopes the government will drop the 
case. Kyllo's original five-year sentence was reduced on other grounds and 
he has been free but under court supervision for the past nine years, 
Lerner said.
- ---
MAP posted-by: Keith Brilhart