NEW TECHNOLOGY LEADS TO TOUGH PRIVACY CASE FOR SUPREME COURT

Lawyer Says Police Use Of Thermal Imaging Violates Reasonable
Expectation Of Privacy

WASHINGTON -- The Supreme Court wrestled Tuesday with how to apply
the Fourth Amendment's ban on unreasonable searches to a
technological development the Constitution's framers most likely did
not have in mind: a thermal imaging device that the police can use
from outside a home to detect patterns of heat being generated from
inside.

The specific question in the hourlong argument was whether use of a
thermal imager by the police is a search that, no less than an actual
entry into a house, requires a warrant. The underlying question was
how the Constitution should take account not only of changing
technology but also 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, has forfeited any reasonable expectation of privacy.

In the case Tuesday, the lawyer for an Oregon man convicted of
growing marijuana in his home 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 that are often used to
grow marijuana. The police used the information to obtain a search
warrant.

People have a reasonable expectation of privacy in what goes on
behind the walls of their homes, the lawyer, Kenneth Lerner, told the
justices. What the thermal imager captures ``really is molecular
information that migrates through our walls,'' he said. ``If we are
now saying that we can capture that kind of information without a
warrant, we can reduce our whole world to that type of wave and
molecule, and our walls mean nothing.''

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

``Heat loss is an inevitable feature of heat in a structure,''
Dreeben said. ``That's why there is an insulation industry.''

Justice Stephen Breyer objected that the expectation of privacy ``is
not in heat loss, it's in what is going on in the house.''

Breyer said the question was whether ``you have a reasonable
expectation that the kind of thing you're doing in the house will not
be picked up by somebody out of the house, not a law enforcement
officer, but just ordinary people.''

``Where you're walking in front of the window, the answer is no,'' he
continued. ``Where you're walking in front of the window and people
pick it up with binoculars -- every bird-watcher has binoculars.
Where they're picking it up with flashlights -- every Boy Scout has a
flashlight. Who has a heat thermal device? Nobody, except a few.''

Breyer said it was at least open to argument whether people had a
valid expectation of privacy that when they took a long hot bath,
that fact would not be disclosed to the world by the use of a thermal
imaging device.

Dreeben replied that although the device can detect heat, ``it will
not tell you what's going on inside the house.''

Lerner, representing the defendant, Danny Lee Kyllo, also came in for
tough questioning.

``Why don't your reasonable expectations of privacy include
technology?'' Justice Antonin Scalia asked. Inasmuch as there are
thermal imagers in the world, why not expect people to guard against
them just as ``you pull your curtains if you want privacy because you
know people have binoculars,'' Scalia said.

``The burden,'' Lerner said, ``really is improperly placed on the
citizen to anticipate what type of technology the government may come
up with.''

Justice David Souter asked: ``Are you saying, in effect, that if
thermal imaging becomes very common and every schoolkid has a $5
thermal imager, that at that point it really would be unreasonable
not to expect that the government was going to use it to figure out
what's going on in the house?''

Lerner said the court would then have to step in just as it has to
prevent indiscriminate use of wiretapping, a technology that everyone
knows is available yet is still regarded as an unconstitutional
invasion of privacy except in limited circumstances.

Lerner's client entered a conditional guilty plea while challenging
the use of the thermal imager. He first won his case before the 9th
U.S. Circuit Court of Appeals, in San Francisco, but the appeals
court changed its mind and issued a new opinion after one of the
original members of the three-judge panel retired. Kyllo served a
month in jail on his marijuana conviction.