HEAT-SENSING JUSTICE: COURT BARS HIGH-TECH SEARCHES WITHOUT WARRANT

In a ruling this week that involved a Lane County drug case, the U.S.
Supreme Court reaffirmed Americans' fundamental right to privacy in their
homes, even in an era when new law enforcement technologies make breaching
that privacy frighteningly easy.

The justices ruled 5-4 that police use of thermal imaging devices, which
can detect heat patterns radiating through walls, amounts to an
unconstitutional invasion of privacy unless police have first obtained a
judge's permission by showing evidence of a crime.

Chalk one up for the Fourth Amendment and its ban on unreasonable searches
and seizures. As Justice Antonin Scalia wrote for the court, at the "very
core" of the amendment "stands the right of a man to retreat into his own
home and there be free from governmental intrusion."

Yes, that's right, Scalia. It was the most conservative member of the court
who weighed in on behalf of a majority that made a crazyquilt of the normal
conservative-liberal alignment of the justices. Joining him was another
conservative, Justice Clarence Thomas, as well as three of the court's more
liberal members: Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.

In a dissenting opinion, Justice John Paul Stevens, a liberal's liberal,
said that because thermal imaging devices detect heat radiating "off the
walls," they are "simply gathering information in the public domain" and
warrants are unnecessary. Stevens was joined by three members of the
court's conservative bloc: Chief Justice William Rehnquist and Justices
Sandra Day O'Connor and Anthony Kennedy.

Such a go-figure split on the court is enough to send a veteran
courtwatcher to bed with a raging fever - a fever that just might be picked
up by a thermal imaging device like the one an Oregon National Guard
sergeant pointed at Danny Lee Kyllo's home in Florence at 3:30 a.m. on Jan.
16, 1992.

The imager, which gathers infrared radiation just as a camera gathers
visible light, detected unusual amounts of heat coming from the garage roof
and a side wall. It also revealed that Kyllo's triplex residence was giving
off significantly more heat than the adjoining units.

Using that information, along with an informant's tip and Kyllo's
suspiciously high electrical bills, federal agents secured a warrant. When
they searched Kyllo's home, they found more than 100 marijuana plants and
the high-intensity grow lights that gave off the tell-tale heat.

Kyllo pleaded guilty to a drug charge but reserved the right to appeal on
the search issue. The San Francisco-based 9th U.S. Circuit Court of Appeals
ultimately upheld the plea, concluding that law enforcement officials
didn't violate the constitutional bar against unreasonable searches.

In this week's ruling, the Supreme Court held that the information police
gathered with the thermal device cannot be used against Kyllo. The court
sent the case back to lower courts to determine whether police had enough
other basis to support the search warrant that was eventually served on Kyllo.

The court's ruling provides much-needed limits on how police should apply
increasingly powerful high-tech surveillance equipment, including devices
that may yet be developed, that enable them to peep inside private homes.

This strange concoction of conservative and liberal justices correctly
perceived that private homes need to be protected not only from physical
intrusion by police but from advancing technologies that allow police to
monitor human activity inside. In the majority opinion, Scalia noted that
directional microphones, monitoring satellites miles in the sky, and radar
scanners that can look through walls already exist or are being developed
to aid police in crime detection.

Thermal imaging already has the potential to reveal private activities in
the home, ranging from heating a Hot Pocket in the microwave to sexual
intimacy. Future improvements in technology will dramatically increase
police capabilities - and citizens' need for Fourth Amendment protection.

The court has made it clear that if law enforcement officials want to do a
high-tech scan of a private residence, they must first prove in court that
there is, in the precise words of the Constitution, "probable cause" to
believe that criminal activity has occurred on the premises. If they lack
the information needed to obtain a warrant, they must keep their thermal
imagers and other Dick Tracy devices switched to the off position.