Pubdate: Tue, 20 Feb 2001 Source: USA Today (US) Section: Page 13A Copyright: 2001 USA TODAY, a division of Gannett Co. Inc Contact: 1000 Wilson Blvd., Arlington VA 22229 Fax: (703) 247-3108 Website: http://www.usatoday.com/news/nfront.htm Author: Tony Mauro Note: Tony Mauro is Supreme Court correspondent for Legal Times and American Lawyer Media; He is a member of USA TODAY's board of contributors EVEN WALLS WON'T PROTECT YOUR PRIVACY NOW SAN DIEGO In the continuing saga of government invasion of our personal privacy, today could be a landmark day. The U.S. Supreme Court will hear arguments in a case that asks whether police may use "thermal imaging" devices to detect the heat coming from a house -- in this case, heat from an indoor marijuana-growing operation -- without first obtaining a search warrant. Does this police practice violate our cherished Fourth Amendment guarantee against "unreasonable searches and seizures"? The case is being closely watched as a guide for a whole new generation of spy toys and detection devices that law enforcement officials are using to gather evidence against potential lawbreakers. Today, the issue is thermal imagers, hand-held devices that can detect small gradients in temperature in the houses, cars and bodies at which they are pointed. But that is just the beginning, as panelists at an American Bar Association discussion here Friday made clear. Not long from now, panelists said, we will be grappling with satellite imagery, increasingly capable of identifying small objects (marijuana bales, perhaps stolen cars) from space. The recent use of digital cameras at the Super Bowl to match attendees with the images of known criminals opens another new frontier. With the advent of retinal "fingerprinting" -- our retinas are unique -- one scientist in the audience said that someday a well-placed device could scan the eyes of everyone at a stadium and precisely identify every individual there. Some jurisdictions want to place transponders in all vehicles, enabling police to determine, for example, who passed by or stopped at a crime scene at a given time. Great for law enforcement, but not so great for our freedom to travel. Video cameras on street corners and night-vision devices that can identify a person from a mile away in total darkness are already in use. The explosive growth of these devices can be traced to the end of the Cold War, said panelist Ronald Goldstock, a New York lawyer. National security agencies that once did not want their surveillance devices scrutinized in court are now less worried about letting police use and defend the technology. Now is the time to intensify the study of "the application of the Constitution to significant new forms of technology," said Washington, D.C., lawyer Sheldon Krantz at the San Diego discussion. The case before the Supreme Court is a good place to start. More than nine years ago, Oregon law enforcement officers used a thermal imaging device -- an AGEMA Thermovision 210, to be exact -- to determine that a lot of heat was emanating from the roof and one wall of a house on Rhododendron Drive in Florence, Ore. As they suspected, Danny Kyllo, the occupant of the house, was not growing rhododendrons or even African violets inside the house, but rather marijuana. Kyllo was arrested on marijuana-manufacturing charges in January 1992. Ever since, the courts have wrestled with whether the use of the device by police violated Kyllo's Fourth Amendment rights. As that length of time suggests, these issues are not easy. In this case and others that have looked at thermal imaging, judges cannot even agree about what is being searched by these devices. Some, including the latest ruling in the Kyllo case, say the police are only capturing "heat waste" outside the house and not searching or piercing the privacy of the house at all. Some have analogized this "heat waste" to the garbage you put at the side of the road for collection -- which the Supreme Court has already said can be searched by police without a warrant. That strained logic has been rejected by other courts that correctly see the use of these devices as a search of the home itself, not just its emanations. These thermal devices pick up not only "heat waste" outside, but also can detect legitimate uses within, such as a hot tub or, as one court artfully put it, "two commingled objects emitting heat in a bedroom at night" through an open window. What happened to Kyllo was clearly a search that should have been subject to Fourth Amendment constraints. Ever since the Supreme Court first grappled with the Fourth Amendment implications of wiretapping technology early in the past century, a major factor it considers is whether the police activity violates what society would regard as a reasonable expectation of privacy. By now, for example, we no longer have a reasonable expectation that the contents of our luggage will be private when we head to the airport. As a result, officials there can pass our bags through a metal detector without first obtaining a search warrant. With thermal imaging, as with the other new surveillance devices, that expectation of privacy needs to be preserved in the law early in the life of the technology. Once a new method of invading privacy becomes commonplace, in an oddly self-fulfilling way, it is hard to stop, because the public's expectation of privacy from the device has been washed away. The case of Danny Kyllo may be the last best chance for the Supreme Court to draw the line boldly in favor of privacy and to keep our homes, at least, secure from the Orwellian future of a heat-seeking, eyeball-scanning, omnipresent government. - --- MAP posted-by: Beth