COURT SHIELDS HOMES FROM HIGH-TECH SCRUTINY BY POLICE

The Supreme Court, fearing a high-tech future in which police with special
scanners could detect what is happening inside a private home, ruled 5 to 4
yesterday that officers must get a search warrant to use such devices.

"The question we confront," Justice Antonin Scalia wrote for the majority,
"is what limits there are upon the power of technology to shrink the realm
of guaranteed privacy" under the Constitution.

Specifically, the court ruled it unconstitutional for police without a
warrant to use a heat-sensing device aimed at the outside of a house to
seek evidence of crime - in this case growing marijuana - inside the dwelling.

But the ruling went well beyond that specific circumstance, laying down a
broad "bright-line rule" that would apply to all sophisticated devices that
may yet be developed that increase police surveillance capability by
allowing them to "see" inside homes and detect what they could not view
with their own eyes.

As long as the devices that police use for surveillance are "not in general
public use," the court said, the use of new technology will be treated as a
search limited by the Constitution's warrant requirement, as specified in
the Fourth Amendment's privacy guarantee.

The court refused to draw the protective line of privacy so that it would
shield homes only from physical intrusion by police, saying "that would
leave the homeowner at the mercy of advancing technology, including imaging
technology that could discern all human activity in the home."

Beyond the heat-sensing device at issue in the case before the court,
Scalia noted that directional microphones, monitoring satellites miles in
the sky, and radar scanners that can look through walls now exist or are
being developed to aid police.

The court's ruling came in the case of Danny Lee Kyllo of Florence, Ore.,
who was challenging his conviction for illegally growing marijuana after an
officer gauged the heat coming from his house by using a thermal imager
that works like a video camera but shows only heat rays.

There was extra heat coming from Kyllo's house, which the officer concluded
was a sign that Kyllo was using high-intensity lamps inside to aid in
growing marijuana. With that and other information, officers got a search
warrant and found more than 100 plants growing inside.

Kyllo argued that the use of the heat sensor was a search, and that police
needed a warrant to use that device. The court agreed, and sent the case
back to lower courts to decide what to do about Kyllo's conviction and his
63-month prison sentence.

The decision produced unusual lineups within the court. Scalia, one of the
court's most conservative members, drew the support not only of fellow
conservative Justice Clarence Thomas, but also of three of the court's more
liberal members, Ruth Bader Ginsburg, David H. Souter and Stephen G. Breyer.

Justice John Paul Stevens, another liberal, wrote the dissenting opinion,
joined by three members of the court's conservative bloc: Chief Justice
William H. Rehnquist and Justices Anthony M. Kennedy and Sandra Day O'Connor.

The dissenting justices protested that the heat sensor did not pick up
anything going on inside Kyllo's home, and certainly nothing that was
"intimate." But Scalia retorted, "In the home, all details are intimate
details, because the entire area is held safe from prying government eyes."

If police were allowed to use a heat sensor without having a court's
permission, Scalia said, the device might monitor something as intimate as
determining the hour each day that "the lady of the house" took her bath.

The case is Kyllo v. US, 99-8508.