CDR: police IR searches to Supremes

[A. Melon]

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."