Supreme Court to hear thermal peeking case Tuesday, 26 September 2000 13:36 (ET) Supreme Court to hear thermal peeking case By MICHAEL KIRKLAND WASHINGTON, Sept. 26 (UPI) - The Supreme Court is getting ready to wrestle with the competing values of police technology and privacy in a case that could affect the scrutiny under which Americans live their lives. In a short order Tuesday, the justices said they will hear argument on whether law enforcement use of a "thermal imager" to detect heat sources inside a home violates the Constitutions ban on unreasonable searches, especially when the surveillance is conducted without a warrant. A final decision in the case could also determine how much "passive" intrusion is constitutional in a number of other applications as police deploy ever more sophisticated devices in the 21st century. The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers and effects" and bans "unreasonable searches and seizures." Though the court did not say when it would hear the case, argument probably will occur in January. The case accepted by the justices involves an Oregon man arrested in 1992 for growing marijuana in his house. Having a marijuana plantation inside a building usually involves "grow lights" that give off considerable heat. Federal officers were led to the home of Danny Lee Kyllo in Florence, Ore., because his divorced wife had been arrested by state law enforcement on drug charges. Kyllo and his former wife occupied two of the homes in a triplex building. As part of the investigation, an agent from the U.S. Bureau of Land Management asked an Oregon National Guard staff sergeant to take a thermal reading of Kyllos dwelling. While seated in a parked car on a public street, the sergeant used an AGEMA Thermovision 210 thermal imaging device to scan the triplex. The imager detects heat escaping from a house. Court records say he staff sergeant determined that Kyllos building was giving off a lot more heat than neighboring buildings. Using the information provided by the staff sergeant, the federal agent persuaded a U.S. magistrate to issue a search warrant for Kyllos home. A subsequent search discovered an indoor marijuana growing operation, firearms and drug paraphernalia, again according to court records. Kyllo was indicted on one count of growing marijuana, and entered a "conditional" guilty plea in U.S. District Court. Under an agreement with the prosecution, the plea would stand only if an appeals court failed to suppress the evidence from the thermal imager. Though the case went up and down the appeals court ladder twice, the appeals court eventually decided to let the evidence stand, saying that Kyllo had failed to establish that he had a reasonable "expectation of privacy" for the heat emissions from his home. The defendant "made no attempt to conceal these emissions, demonstrating a lack of concern with the heat emitted and a lack of subjective privacy expectation in the heat," the appeals court said. Kyllo then asked the Supreme Court for review. The case "raises the fundamental question of whether the Fourth Amendments guarantee of personal security in ones home must yield to scientific advances that render our traditional barriers of privacy obsolete," Kyllos court-appointed attorney told the Supreme Court in a petition, "or whether there is a core of privacy that police technology may not pierce without a warrant despite its capability of doing so."