EDITORIAL: HIGH-TECH SEARCHES

The Issue: Court cools use of heat-sensing device.

Our View: Decision keeps constitutional principle intact.

Personal privacy may be doomed by ever more pervasive technology, but a
divided Supreme Court has staved off that unhappy day for at least a while.

In a 5-4 decision, the court ruled that it was a search requiring a warrant
when police officers used a heat-sensing device to detect high-intensity
lights to grow marijuana inside Danny Kyllo's home. Because they detected
unnaturally warm spots in Kyllo's garage and attic, police obtained a
warrant and did indeed find more than 100 marijuana plants under grow-lights.

Just how conflicted the court found itself was apparent in the odd lineups
for and against: Justices Antonin Scalia and Ruth Bader Ginsburg, usually
polar opposites, were in the majority, and Chief Justice William Rehnquist,
a conservative, and John Paul Stevens, the court's most liberal justice,
were in the minority.

The precedent is important because ever more sophisticated Big Brother
surveillance devices are in the works. The distinction that Stevens drew,
between "off-the-wall" as opposed to "through-the-wall" surveillance, may
one day be technologically irrelevant. Through-the-wall radar and
ultrasound technology are already available to police, and this decision
has at least raised the bar for use of such devices.

Scalia argued that any evidence about the interior of a private home that
could not have otherwise been legally gathered without physical entry was
an illegal search under the Fourth Amendment.

Scalia seemed to open the door to further mischief by using as one of his
criteria the fact that the thermal imaging device was not widely available
to the public. Just because a surveillance device can be easily and freely
acquired doesn't mean the right to privacy should be diluted.

Kyllo is not off the hook. His case now goes back to a lower court to
determine whether the other grounds - heating bills, an informant's tip -
were adequate for obtaining the warrant. And, in the game of cops and
robbers, the need to obtain a warrant for high-tech surveillance is another
procedural step for law enforcement, but it is still an important
constitutional protection.

Both the majority and the dissenting justices made strong arguments
(Stevens noting that heat waves are in the public domain once they leave a
building), and the decision could reasonably have gone either way.

But the majority decision was one that appears to have kept an important
constitutional principle intact in a time much different from the time it
was established.