SPYING AND SEARCHES

On Monday, the U.S. Supreme Court held back the ever-expanding police
state ... just barely. A 5-4 majority ruled that police may not use
heat-sensing devices and other surveillance technologies to gather
evidence unless they get a search warrant in advance.

The case, not surprisingly, involves the war on drugs. Police in
Florence, Ore., suspected that Danny Lee Kyllo was trafficking
marijuana, and set up a thermal imaging device in a vehicle on a public
street outside his home. The device picked up "unusual" amounts of heat
radiating from the house; operating on the belief that Mr. Kyllo was
using heat lamps to grow marijuana, the cops obtained a search warrant
and found more than 100 plants in the house.

Mr. Kyllo sued the police, charging that the use of heat detectors
constituted an illegal search under the Fourth Amendment. At trial, and
on appeal, federal courts sided with the government.

Fortunately, the Supreme Court ruled that such spying can indeed
constitute an unauthorized search ... especially if the surveillance is
used to gather evidence of activities taking place inside a home. "To
withdraw protection of this minimum expectation would be to permit
police technology to erode the privacy guaranteed by the Fourth
Amendment," Justice Antonin Scalia wrote for the majority. Using the
thermal-imaging device was no different than physically entering the
house, the majority ruled.

In a chilling dissent, "liberal" Justice John Paul Stevens found no
problem with police using thermal detectors, or just about any other
surveillance technologies imaginable, to root out illegal activities. He
argued that the "countervailing privacy interest is at best trivial."

By placing the cops on notice that certain types of high-tech
surveillance will not be countenanced, Justice Stevens feared that the
majority "has endeavored to craft an all-encompassing rule for the
future." Let's hope so.