HIGH COURT DECISION BLOW TO LAW

If the U.S. Supreme Court rules police need a search warrant before using
devices outside a home to measure heat generated inside it, it will be a
blow to law enforcement, a federal prosecutor says.

"I won't say it would be devastating, because we were able to function
before the technology came along, but it would certainly impede law
enforcement efforts," Assistant U.S. Attorney Richard Moore said Wednesday.

Moore should know. He prosecuted a similar case in East Texas in 1993.

A Drug Enforcement Administration task force used two thermal imagers to
collect evidence that became part of the probable cause for a search
warrant for a building belonging to Rohn Martin Ishmael, Moore said.
Officers found more than 640 marijuana plants growing in a hidden chamber
beneath the building, located near Cushman, in Nacogdoches County, he said.

"One was mounted on an airplane that flew over his property. It showed the
building was radiating quite a bit of heat, for a building" out in the
country, he said.

The thermal imager also revealed a hot area about 20 or 30 feet outside the
40-by-80-foot building that turned out to be an exhaust vent for the
chamber, Moore said. A hand-held imager showed one end of the building was
hotter than the other, indicating a power generator might be located there,
he said.

On Tuesday, the high court heard arguments in the case of Danny Lee Kyllo,
an Oregon man convicted of growing marijuana in his home. His attorney
argued that the police engaged in an illegal search by using a thermal
imager to detect the distinctive heat pattern made by the high-intensity
lights used for marijuana cultivation. The police used the information to
obtain a warrant to search the house.

The underlying question is how the Constitution should take account of
changing technology, and of society's changing understanding of
technology's threat to privacy.

Under the court's precedents, the Fourth Amendment protects only those
expectations of privacy that are "reasonable." Someone who conducts
business in front of an open living room window, for example, may be deemed
to have forfeited any reasonable expectation of privacy.

People have a reasonable expectation of privacy in what goes on behind the
opaque walls of their homes, attorney Kenneth Lerner told the justices.
What the thermal imager captures "really is molecular information that
migrates through our walls," he said Tuesday.

But Michael R. Dreeben, a deputy solicitor general representing the
government, said people did not have a reasonable expectation of privacy
"in the heat that's on the exterior surface of their walls."

In the East Texas case, Ishmael was charged in a five-count indictment with
possessing marijuana with the intent to distribute it and carrying a
firearm during a drug-trafficking crime. He was sentenced Oct. 29, 1996, to
10 years in federal prison, according to court records.

Moore said officers did not rely solely on the thermal imager data to
obtain the search warrant. "There was quite a bit of evidence to suggest
that something unique was going on there," he said. Receipts showed Ishmael
had bought more concrete than he needed for the slab underneath the metal
building, "which led you to believe that there was an underground
structure," Moore said.

Pipes ran from a small lake about 100 yards away to the building, entering
it below ground level, he said. Ishmael also bought a number of huge lamps,
the kind used to light football fields or grow marijuana, Moore said.

"One of the most interesting things about it, we got a search warrant and
got out there and could not at all figure out how to get into the
underground area," Moore said. "Ultimately one of the agents found a fresh
air vent, a 5-foot-square concrete tunnel. He went through it and ended up
in the structure."

In the hidden chamber, the agent found the marijuana plants, Moore said. A
button on the wall activated an elevator that was disguised as a giant
welding table on the ground floor.

Ishmael's attorney "said the use of the thermal imager was itself a search,
and therefore we should have gotten a search warrant to use a thermal
imager," said Moore, a board member of the Law Enforcement Thermographers'
Association. The organization, founded in 1995, offers training and
certification in the use of the devices.

"The entire case turns on the legality of the search. If the search warrant
is no good, then we have no right to be there and we lose completely," he said.

U.S. District Judge Robert Parker in Tyler ruled in Ishmael's favor, Moore
said. But prosecutors appealed to the 5th U.S. Circuit Court of Appeals in
New Orleans.

"The Ishmael case was one of the first federal cases that I'm aware of that
was taken to a circuit court," he said. The 5th Circuit overturned Parker
and sided with prosecutors, Moore said. The case set a precedent for
criminal cases in the 5th Circuit.

Thermal imagers "can't see through walls. ... It's useful for measuring
relative heat only. I don't think a person has an expectation of privacy in
the heat that is emitted from their residence, for example," he said. "The
analogies are made that this is waste heat, this is heat being dispensed
from your structure. You have no more expectation of privacy from that than
you do from your trash being set out on the side of the road," Moore said.