Pubdate: Wed, 21 Feb 2001
Source: Washington Times (DC)
Copyright: 2001 News World Communications, Inc.
Contact:  202-832-8285
Website: http://www.washtimes.com/
Author: Frank J. Murray, The Washington Times

SEARCH AND SEIZURE DOMINATES SUPREME COURT SESSION

The Supreme Court ruled 8-1 yesterday that police can bar a suspect from 
entering his own house while they obtain a search warrant and heard sharply 
opposing views on whether high-tech heat seekers can be used to detect an 
indoor marijuana farm.

The search warrant case - among the half-dozen search-and-seizure appeals 
dominating this term's docket - united conservative and liberal justices, 
except for Justice John Paul Stevens.

The court ruled that a two-hour forced delay in allowing Charles McArthur 
to re-enter his mobile home was constitutional because it likely kept him 
from destroying marijuana he shoved under the couch when police arrived.

"The police officers . . . reasonably believed that [he] would destroy that 
evidence," said the court's opinion, written by Justice Stephen G. Breyer.

Officers were called on April 2, 1997, by Tera McArthur, who asked them to 
accompany her while she removed her belongings from the trailer she shared 
with her husband. She told the police Mr. McArthur had hidden "dope" under 
the couch.

When Mr. McArthur refused to allow a search, an officer enticed him outside 
and then wouldn't let him go back in alone. Once they got a warrant, 
officers found a "one-hitter" box of marijuana containing 2.5 grams.

With the evidence now cleared for admission in court, Mr. McArthur faces a 
maximum penalty of 30 days in jail, but his case opened new vistas in 
Fourth Amendment law.

The appeal on which justices heard arguments yesterday also involved 
marijuana. It was being grown inside a home under strong halide lights that 
emit so much heat police, aided by military thermal-imaging equipment, were 
able to spot the three lamps from their heat signature on the roof.

Government attorneys said the device passively measures heat loss outside 
the house and does not intrude.

That image was used to obtain a search warrant that resulted in the arrest 
of Danny Kyllo, who was sentenced to five years and three months for his 
farming.

"Our home is the basic refuge for all citizens where we are free from 
government spying," argued Kyllo's attorney, Kenneth Lerner of Portland, Ore.

Mr. Lerner told the justices he believed that even using a flashlight to 
peer into a dark house without a warrant would violate the Fourth 
Amendment, but Justice Sandra Day O'Connor questioned whether there was an 
intrusion.

"The device cannot penetrate walls or windows," she said. Mr. Lerner asked 
the court to consider not only the facts in Kyllo's case but the potential 
such new technology has to invade privacy.

"I don't agree," said Chief Justice William H. Rehnquist. "In a Fourth 
Amendment case we look at what was actually done - not what could be done."

"You're the Supreme Court," Mr. Lerner replied in a session rife with 
whimsical questions about hypothetical intrusions ranging from an officer 
holding a thermometer out the window of a nearby house, to whether thermal 
imaging would invade Justice Stephen G. Breyer's privacy by detecting that 
he was taking a four-hour Finnish sauna while he was supposed to be 
working, to binoculars wielded by bird-watchers.

Deputy Solicitor General Michael Dreeben said there was no intrusion.

"If the thermal imager functioned like an X-ray machine . . . then we don't 
dispute that it would be a search," he said. "It does not penetrate the 
walls of the house. It does not detect objects inside of a house."
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