Pubdate: Sat, 03 Feb 2001
Source: Fresno Bee, The (CA)
Copyright: 2001 The Fresno Bee
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Author: Michael Doyle, Bee Washington Bureau

HIGH-TECH TOOL HELPS METH HUNT

Questions Remain Whether Courts Will Allow The Heat-seeking Device.

WASHINGTON -- A potential tool for sniffing out chemicals used in Central 
Valley methamphetamine labs provokes an intriguing constitutional debate.

The core question seems simple but grows quickly complicated. What is a search?

It's a legal question that expands with every technological leap.

A search is certainly the police combing through a suspect's house. But is 
it also police parked outside while scooping up heat emissions from a pot 
grower's house or chemical emissions from a meth cooker's kitchen?

Those questions have Valley law enforcement officials and defense lawyers 
alike awaiting a Supreme Court case this month involving a high-tech 
anti-drug weapon that was used to bust a man accused of growing marijuana.

"No one," wrote federal Judge John Noonan Jr., an appointee of President 
Reagan, "wants to live in a world of Orwellian surveillance."

Valley officials aren't thinking Orwellian as they contemplate purchase of 
a "stand-off chemical agent detector." They're thinking meth fighting and 
say the device, set for a field test this month, could help track the 
Valley's scattered meth labs.

A $500,000 state grant would be used for the chemical detector, originally 
deployed to search out signs of Iraqi chemical weapons use during the 
Persian Gulf War. Though the High Intensity Drug Trafficking Area program 
serving nine counties from Sacramento to Kern hasn't made a decision to 
buy, officials have been exploring the idea.

"We have talked to a bank of lawyers already," Stanislaus County Sheriff 
Les Weidman said, "and they feel comfortable that they can defend it."

At the same time, Weidman acknowledged that defense lawyers could seek to 
challenge use of the chemical sniffer.

After all, that's what defense lawyers are paid to do. Judges, for 
instance, had to rule in 1927 that the Coast Guard's use of the 
technological innovation we now call a common spotlight was not an illegal 
search. Decades later, judges decided drug-sniffing dogs amounted to an 
illegal search -- because incriminating odors are out in public.

Sometimes, defendants can find conservative judges to agree with them.

The 74-year-old Noonan, a judge on the 9th U.S. Circuit Court of Appeals, 
uttered his warning about Orwellian technology while writing in dissent 
from an appellate panel's decision in the case of accused Oregon pot grower 
Danny Lee Kyllo.

Kyllo's case, with all its implications for Valley law enforcement, will be 
heard by the Supreme Court Feb. 20. Police busted Kyllo in 1992 after an 
Oregon National Guard sergeant had used an Agema Thermovision 210 device to 
detect otherwise invisible heat waves from Kyllo's house. The device, 
resembling a video camera, produced a thermal scan showing more heat coming 
from Kyllo's garage roof and side walls than other houses.

The heat waves, combined with other evidence, convinced police that Kyllo 
was running an energy-intensive, pot-growing operation.

Police then obtained a search warrant and found more than 100 marijuana 
plants. Kyllo, however, contends the Agema Thermovision 210 violated the 
Constitution's Fourth Amendment guarantee against unreasonable search and 
seizure.

"It leaves the homeowner defenseless, because the technology overwhelms 
normal methods of maintaining privacy, by rendering our walls and roofs 
superfluous," Kyllo's lawyer, Kenneth Lerner, wrote in his Supreme Court 
brief. "When technology can exceed the natural senses, it subverts the 
human ability to contain private matters in a normal way."

Nor is Lerner alone in thinking so. State supreme courts in Montana and 
Washington have found that thermal imaging devices violate state 
constitutions. Moreover, Kyllo first prevailed by a 2-1 margin before the 
9th Circuit but lost after the government sought a rehearing and one judge 
was replaced.

"Technological developments hold a serious potential to encroach on 
privacy," the Justice Department states in its Supreme Court brief, "but 
thermal imagers do not literally or figuratively penetrate the home and 
reveal private activities within."

The thermal scan works by detecting infrared radiation and by converting 
that to a visible image displayed on a screen. It does not look through 
walls nor does it emit beams or rays.

The merely passive acquisition of heat signals, displayed as "amorphous 
white or gray blotches" on the screen, therefore does not entail a search, 
the government argues. In its earlier cases, the Supreme Court sets a 
two-part test for Fourth Amendment violations: Does the person have an 
expectation of privacy, and is that expectation reasonable?

"Whatever the Star Wars capabilities this technology may possess in the 
abstract, the thermal imagery device employed here intrudes into nothing," 
the 9th Circuit's two-member majority wrote in upholding Kyllo's conviction.

Valley law enforcement officials, too, say their proposed meth detector 
would pass the constitutional smell test.

"It doesn't really permeate the residence," said Bill Ruzzamenti, the 
Fresno-based director of the Central Valley HIDTA. "It only detects what 
escapes."

Like the thermal imager, the military's chemical agent detectors also 
passively pick up infrared radiation. The incoming infrared radiation, 
which in some military devices can be picked up from 5,000 meters away if 
conditions are right, is then compared to the infrared radiation 
characteristics associated with known chemical agents. For meth hunters, 
this might be telltale chemicals such as red phosphorous.

"Right now, we feel pretty optimistic that this will work," Weidman said.

This month, the device, developed by a Southern California firm, could be 
brought into the Valley for a field test. Weidman said this likely would 
involve setting up a simulated meth lab, with its associated chemicals, and 
then setting the detector's handlers off on an infrared treasure hunt.
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