'HOT SEARCHES' GET A CHILLY RECEPTION

When is a search not a search? In law there will always be gray areas and
fine-tuning because the Fourth Amendment protects citizens from
"unreasonable" searches and seizures, and reasonable people can disagree as
to what constitutes an unreasonable search.

While we have sometimes criticized the U.S. Supreme Court on
search-and-seizure issues, we are encouraged that the court this week came
down on the side of citizens when it comes to high-tech surveillance devices.

The case - Kyllo vs. United States - involved a triplex in Florence, Ore.,
and the suspicion by police that someone there was growing marijuana inside.

Drug agents used a heat-imaging device and figured that the concentrations
of heat it showed were halide bulbs used for growing marijuana. They got a
warrant, searched Danny Kyllo's house and found 100 marijuana plants.

Lower courts had held that the use of the heat-imaging device was not
really an unconstitutional warrantless search because Mr. Kyllo had made no
effort to conceal the heat, and the device did not reveal any "intimate
details of Mr. Kyllo's life."

The Supreme Court ruled, as Cato Institute director of constitutional
studies Roger Pilon summarized it, "that the use of a high-tech device does
not render what we all know to be a search to be a non-search." It also
affirmed, as the court's syllabus put it, that "in the sanctity of the
home, all details are intimate details."

The case was interesting in that the majority included Justices Antonin
Scalia and Clarence Thomas, generally viewed as conservatives, and Justices
David Souter, Ruth Bader Ginsburg and Stephen Breyer, generally viewed as
liberals, and was written by Justice Scalia.

"It was good to see Scalia and Thomas standing for constitutional
principle, which, in this case, means freedom from warrantless searches,"
Mr. Pilon said.

The decision was also important in making it clear to police agencies that
just because certain kinds of snooping devices are available or feasible,
it doesn't automatically follow that they can be used to inspect citizens
without solid evidence.

The lower courts had argued that the device in question furnished only
"amorphous hot spots" on outside walls.

The requirement that a warrant be issued by a neutral party is one more
example of how the separation of powers protects individual liberty. When
the police, an executive agency, must get permission from the judicial
branch to do certain things, the tendency to abuse power is restrained.

Disagreement about what kinds of surveillance are permissible given
technological advances is virtually inevitable.

With this decision, the high court offers reassurance that the basic
premise - that the Fourth Amendment creates a strong presumption in favor
of individual liberty and privacy that can be overridden only in
extraordinary circumstances - still holds a powerful position in American law.