Source: San Francisco Chronicle (CA) Contact: A24 Website: http://www.sfgate.com/chronicle/ Author: Bill Wallace, Chronicle Staff Writer Pubdate: Wed, 08 Apr 1998 NINTH CIRCUIT TOSSES POT CONVICTION CASE Heat detection device ruled illegal A federal agent who used a heat detection device to gather evidence against an alleged Oregon marijuana grower violated the suspect's constitutional right against unreasonable searches, the U.S. Circuit Court of Appeals ruled yesterday. In a split ruling, the Ninth Circuit Court of Appeals in San Francisco threw out the conviction of Danny Kyllo, an Oregonian who was arrested in 1992 for cultivating and distributing marijuana. In a move almost certain to be appealed further, the court ordered Kyllo's case sent back to U.S. District Court in Portland for a new trial. Kyllo was arrested in 1992 after an investigator for the federal Bureau of Land Management searched his home, which revealed marijuana, drug paraphernalia and weapons. According to court files, the agent obtained a warrant to search the residence after surveying it from a distance with a high-tech thermal-imaging device he had borrowed from the Oregon National Guard. The gadget detected high levels of heat radiating from parts of Kyllo's home, and the agent cited the results in his request for a warrant, arguing that the heat was produced by high-intensity lights frequently used by pot cultivators to covertly grow the plants indoors. Kyllo appealed his conviction, arguing that the use of the thermal-imaging equipment was an intrusive surveillance method that violated his Fourth Amendment right against unreasonable government search and seizure. Based on earlier appellate cases involving the issue, Kyllo's appeal was rejected by the U.S. District Court in Oregon. But in its split decision yesterday, a Ninth Circuit panel consisting of Judges John T. Noonan, Michael Daly and Robert R. Merhige, Jr., ruled that Kyllo's objection to the device had merit. Writing for the majority, Judge Merhige said the device was capable of detecting such minor household activities as using a shower, taking a bath or operating household appliances, and that the constitution prohibited the government from monitoring private activities in such detail without a court-authorized search warrant. ``Even the routine and trivial activities conducted in our homes are sufficiently `intimate' to give rise to Fourth Amendment violation if observed by law enforcement without a warrant,'' Merhige wrote. In a dissenting opinion, Judge Hawkins argued that the agent who used the detection gear had not entered Kyllo's home or violated his constitutional rights. ``The thermal-imaging device employed here intruded into nothing,'' Hawkins said. ``The use of thermal-imaging technology does not constitute a search under contemporary Fourth Amendment standards.'' 1998 San Francisco Chronicle