Pubdate: Tue, 12 Jun 2001
Source: Herald, The (WA)
Copyright: 2001 The Daily Herald Co.
Contact:  http://www.heraldnet.com/
Details: http://www.mapinc.org/media/190
Author: Larry Margasak, Associated Press

HIGH-TECH SPYING NEEDS WARRANT, COURT SAYS

WASHINGTON -- Police must get warrants before using devices that 
search through walls for criminal activity, the Supreme Court ruled 
Monday in a decision that bolstered protections against high-tech 
monitoring of Americans' homes.

The 5-4 decision, in a lineup of justices that shattered the normal 
ideological split, struck down the use without a warrant of a 
heat-sensing device that led to marijuana charges against an Oregon 
man.

Conservative Justice Antonin Scalia wrote for the majority that 
police conducted an illegal search from outside the man's home. 
Liberal Justice John Paul Stevens backed the officers in a dissent.

The two jabbed at each other throughout their respective opinions, 
with Stevens -- adopting the conservatives' typical stance -- 
accusing Scalia of failing "to heed the tried and true counsel of 
judicial restraint." Scalia called Stevens' conclusion that police 
acted constitutionally an "extraordinary assertion."

"It's authentically a case of role reversal," said University of 
Virginia law professor A.E. Dick Howard. "One doesn't think of Scalia 
as anything but a law and order judge. And you don't call Stevens the 
wildcard on the court for nothing."

The ruling reversed a lower court decision that said federal 
officers' use of the heat-sensing device was not a search of Danny 
Lee Kyllo's home -- and therefore a warrant was not needed.

Scalia wrote that the court could not cast away the Florence, Ore., 
man's Fourth Amendment protections against illegal searches to allow 
police to use "sense-enhancing technology."

Any evidence obtained from the interior of someone's home, which 
could not have been gathered legally by a physical intrusion, 
constitutes a search, he wrote. That's especially true, he said, when 
the technology is not in general public use.

"This assures preservation of that degree of privacy against 
government that existed when the Fourth Amendment was adopted," 
Scalia concluded.

"Reversing that approach would leave the homeowner at the mercy of 
advancing technology -- including imaging technology that could 
discern all human activity in the home."

The ruling sent the case back to lower courts to determine whether 
police have enough other legal grounds to support the search warrant 
that was eventually served on Kyllo.

Conservative Justice Clarence Thomas joined the majority, as did more 
liberal Justices David H. Souter, Ruth Bader Ginsburg and Stephen 
Breyer.

Stevens was joined by conservative Chief Justice William H. 
Rehnquist, and swing-vote Justices Sandra Day O'Connor and Anthony M. 
Kennedy.

Kyllo was arrested in January 1992 and charged with growing marijuana 
at his home. Police had trained a thermal imaging device on his home 
and found signs of high-intensity lights. Using those images, 
electricity records and an informant's tip, police got a warrant and 
searched Kyllo's home.
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