COURT FAVORS WARRANT TO SEARCH

The U.S. Supreme Court, in a case pitting constitutional privacy
protections against the intrusive power of modern technology, ruled Monday
that police must obtain a search warrant before using high-tech devices to
gather information from inside a private home.

In a 5-4 ruling, the court said the key test was whether law enforcement
officers would have had to enter the home of Danny Lee Kyllo of Florence to
obtain the same information if they hadn't had access to modern devices.

In such a case, the majority said, the officers must first show probable
cause of a crime and obtain a search warrant, just as they have to do
before they can physically enter and search a home.

Kyllo, 35, said Monday he was immensely pleased by the court ruling because
it will put a stop to police use of an invasive piece of technology without
a search warrant.

"I done wrong, and I admit I done wrong," said the former laundry worker,
who has been unemployed because of a shoulder injury. It would have been
easy not to appeal his conviction for growing marijuana, serve his sentence
and put the incident behind him, he said, but he and his attorney, Kenneth
Lerner of Portland, resolved not to give up the fight.

"I didn't just win for me, I won for everybody," he said.

The case involved an early morning surveillance in 1992 by two federal law
enforcement agents who pointed a thermal imaging device at the outside of
Kyllo's home. The device recorded unusual amounts of heat coming from parts
of the home, reinforcing the agents' suspicion that Kyllo was using
high-intensity lamps to grow marijuana inside.

Based in part on that information, a judge issued a warrant to search the
home, where the agents found more than 100 marijuana plants.

But Monday the Supreme Court said the use of the heat-sensing device before
the warrant was issued was an impermissible search of Kyllo's home,
violating his Fourth Amendment protection against unreasonable searches and
seizures.

The decision sends the case back to the court of U.S. District Judge Helen
Frye in Portland.

Legal experts said the decision was an important reaffirmation of Fourth
Amendment rights in the face of rapidly advancing technological changes
that are enhancing law enforcement's ability to gather information about
those they suspect of wrongdoing.

Law enforcement officials characterized the ruling as merely requiring an
additional step they must take before using such high-tech devices.

Writing for the majority, Justice Antonin Scalia said the case confronted
the court with the question of what limits are on the power of technology
"to shrink the realm of guaranteed privacy."

"Where, as here, the government uses a device that is not in general public
use, to explore details of the home that would previously have been
unknowable without physical intrusion, the surveillance is a 'search' and
is presumptively unreasonable without a warrant," Scalia wrote for the
majority.

Citing the rapid pace of technological development, Scalia added that to
rule otherwise "would leave the homeowner at the mercy of advancing
technology - including imaging technology that could discern all human
activity in the home."

Scalia was joined in the majority opinion by one of the court's other more
conservative justices, Clarence Thomas, and liberal Justices David Souter,
Ruth Bader Ginsburg and Stephen Breyer.

Justice John Paul Stevens, usually a leader of the court's moderate to
liberal bloc, was joined in dissent by Chief Justice William Rehnquist and
the court's swing votes in many important cases, Justices Sandra Day
O'Connor and Anthony Kennedy.

In his dissent, Stevens drew a distinction between "through-the-wall
surveillance," which he said was impermissible, and "off-the-wall
surveillance" that records conditions outside, but not inside, a home.

Since the thermal imaging device that was pointed at Kyllo's home only
recorded heat levels outside the structure, "the officers' conduct did not
amount to a search and was perfectly reasonable," he said.

Lerner, Kyllo's court-appointed attorney, said that the Constitution and
the courts always have protected unwarranted searches and that the high
court's ruling firmly said that principal is a line not to be crossed, even
by technology.

On the other hand, he said, the ruling is a landmark because every other
federal court that ruled on the issue took the opposite position. "It
totally changes the landscape and re-emphasizes a fundamental principal of
our constitutional liberty - that the home is sacrosanct," he said.

Four federal appeals courts in 1994 and 1995 said thermal scans used to
read heat images on a screen were not searches requiring a warrant. In
1998, the 9th U.S. Circuit Court of Appeals ruled that such searches do
require a warrant, but then withdrew that opinion and took the opposite
position a year later.

It was the latter ruling that Kyllo and Lerner appealed to the Supreme Court.

Harvard Law School Professor Bill Stuntz, a leading expert on Fourth
Amendment issues, said the decision means "the Constitution protects some
level of privacy that is not defined by current technology. That's very
important in a society where technology is advancing as rapidly as in ours."