Pubdate: Tue, 28 Jan 2003
Source: Toronto Star (CN ON)
Copyright: 2003 The Toronto Star
Contact:  http://www.thestar.com/
Details: http://www.mapinc.org/media/456
Author: Tracey Tyler

RULING CURBS USE OF HEAT-SEEKING CAMERAS

Police Aircraft Now Need Warrant Appeal Court Acquits Man of Charges

The Ontario Court of Appeal has effectively grounded police aircraft 
equipped with heat-seeking cameras, saying they can no longer fly over 
private residences taking pictures unless officers obtain a warrant.

A homeowner's right to privacy extends to the heat generated inside a home 
and reflected on the outside, a three-judge panel said yesterday.

And the use of Forward Looking Infrared (FLIR) cameras to detect heat 
emanating from a home amounts to a search, which requires judicial 
authorization, the court said.

"I am satisfied that the FLIR technology discloses more information about 
what goes on inside a house than is detectable by normal observation or 
surveillance," Madam Justice Rosalie Abella wrote for the court, adding 
that "some perfectly innocent" activities, such as taking a bath or using 
lights at unusual hours, can create the kind of heat emanations picked up 
by infrared aircraft cameras used in drug investigations.

The court acquitted Walter Tessling of Kingsville, Ont., near Windsor, of 
charges of possessing firearms and marijuana seized after an RCMP plane 
equipped with a FLIR camera flew over his home in May of 1999, taking 
pictures of the thermal energy radiating from the building.

In an interview yesterday, Frank Miller, Tessling's lawyer, said the case 
isn't about "guilty people hiding things," it's about protecting people "so 
they don't have this feeling Big Brother is watching" as they go about 
their lives.

Letting police use "technological tricks" to encroach on a homeowner's 
privacy can have a chilling effect on the use of anything from a pottery 
kiln to a hot tub, he said.

Knowing police are flying overhead taking pictures and could use your 
electrical consumption as an excuse for questioning your neighbours is 
enough to put a damper on anyone's activities, Miller added.

In its decision, the court is saying "Look, that kind of spy technology is 
going to have to be looked at very carefully," he said.

Planes equipped with FLIR cameras are used "an awful lot" for drug 
investigations in the United States but far less so in Canada, party 
because of the cost, Miller added. However, it's something police are 
likely to push for more of, he said.

In its decision yesterday, the appeal court excluded "a large quantity" of 
marijuana and weapons discovered in Tessling's home because they were 
seized as a result of an illegal search in which the FLIR camera played a 
central role. The operating theory behind the technology is that while heat 
usually emanates evenly from a building, the lights used in marijuana 
growing operations give off an unusual amount of heat and an area of 
intense heat might signal a marijuana-growing operation, Abella said.

"In my view, there is an important distinction between observations that 
are made by the naked eye or even by the use of enhanced aids, such as 
binoculars, which are in common use, and observations which are the product 
of technology," she said yesterday.

"A member of the public can walk by a house and observe the snow melting on 
the roof, or look at the house with binoculars, or see steam rising from 
the vents."

"Without FLIR technology, however, that person cannot know that it is 
hotter than other houses in the area or that one room in particular reveals 
a very high energy consumption," she said, writing for Associate Chief 
Justice Dennis O'Connor and Justice Robert Sharpe.
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