Pubdate: Tue, 20 Feb 2001
Source: Associated Press
Copyright: 2001 Associated Press
Author: Katherine Pfleger, The Associated Press

SUPREME COURT HEARS ARGUMENTS ON MARIJUANA CASE

WASHINGTON (AP)  An Oregon man says narcotics agents invaded his privacy 
and trampled on his Fourth Amendment rights when they used a device to 
detect excessive heat coming from his house -- without a search warrant.

The "thermal imager," a camera-like device that depicts infrared radiation, 
gave law enforcement officials a piece of evidence that led to a search 
warrant for Danny Lee Kyllo's home in Florence, Ore. Inside, agents found 
drug paraphernalia and more than 100 marijuana plants, and arrested him.

Kyllo has appealed his case to the Supreme Court, which on Tuesday was 
considering whether law enforcement officials violated a constitutional ban 
on unreasonable searches when they used the heat-sensing device. The 
nine-year-old case pits technology against personal privacy.

"Technology that exploits invisible, sub-sensory phenomena ultimately fails 
to respect the traditional boundaries of society, and therefore leaves the 
population defenseless against such surveillance," Kyllo's attorney Kenneth 
Lerner wrote in court papers.

Lerner said the government downplays the fact that an experienced operator 
of the device can glean a wealth of information from the thermal imaging 
scans, including "fairly precise" images through some glass windows.

The government argues that law enforcement officials were within 
constitutional limitations when they utilized the scan, which sensed heat 
patterns emanating from Kyllo's home indicative of lights used to grow 
marijuana. They used the images -- along with a tip from an informant and 
electricity records -- to obtain a search warrant.

In court papers, government attorneys compared the thermal imaging scan to 
an officer observing someone's home. They argued that the scan does not 
penetrate the house and reveal private activities, and is not a 
constitutional violation.

The "government investigator stationed in a public place used a thermal 
imager to observe an area exposed to the public -- the roof and exterior 
walls of a house -- and did not observe private activities," they wrote.

In 1991, a narcotics task force was investigating whether Kyllo's neighbors 
were growing marijuana at a triplex house.

But when officers used a thermal imager on Kyllo's residence, they found 
unusual amounts of heat coming from his home's side wall and garage roof.

After obtaining a warrant and searching the house in January 1992, Kyllo 
was arrested.

He faces only a month in jail for producing marijuana if the Supreme Court 
rules against him. But the decision could lead to important new guidelines 
on how law enforcement officials use technology while conducting searches.

In the past, the high court has allowed law enforcement agencies -- without 
warrants -- to fly over a person's property or use a flashlight to 
illuminate a person's car.

However, the justices have required warrants when officials put microphones 
inside a person's home or listening devices on public telephones, among 
other surveillance methods.

A district court judge in Portland originally ruled against Kyllo, who 
pleaded guilty on the condition that he could appeal the legality of the 
search.

After an initial ruling in his favor, the 9th U.S. Circuit Court of Appeals 
later upheld the use of the thermal imaging device, saying its use did not 
constitute an illegal search.

The case is Kyllo v. U.S., 99-8508.
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