JUSTICES HEAR ARGUMENTS ON MARIJUANA CASE

WASHINGTON -- An Oregon man says narcotics agents invaded his privacy and
trampled on his Fourth Amendment rights when they used a device to detect
excessive heat coming from his house -- without a search warrant. The
"thermal imager," a camera-like device that depicts infrared radiation,
gave law enforcement officials a piece of evidence that led to a search
warrant for Danny Lee Kyllo's home in Florence, Ore. Inside, agents found
drug paraphernalia and more than 100 marijuana plants, and arrested him.
Kyllo has appealed his case to the Supreme Court, which on Tuesday was
considering whether law enforcement officials violated a constitutional ban
on unreasonable searches when they used the heat-sensing device. The
nine-year-old case pits technology against personal privacy. "Technology
that exploits invisible, sub-sensory phenomena ultimately fails to respect
the traditional boundaries of society, and therefore leaves the population
defenseless against such surveillance," Kyllo's attorney Kenneth Lerner
wrote in court papers.

Lerner said the government downplays the fact that an experienced operator
of the device can glean a wealth of information from the thermal imaging
scans, including "fairly precise" images through some glass windows. The
government argues that law enforcement officials were within constitutional
limitations when they utilized the scan, which sensed heat patterns
emanating from Kyllo's home indicative of lights used to grow marijuana.
They used the images -- along with a tip from an informant and electricity
records -- to obtain a search warrant.

In court papers, government attorneys compared the thermal imaging scan to
an officer observing someone's home. They argued that the scan does not
penetrate the house and reveal private activities, and is not a
constitutional violation.

The "government investigator stationed in a public place used a thermal
imager to observe an area exposed to the public -- the roof and exterior
walls of a house -- and did not observe private activities," they wrote. In
1991, a narcotics task force was investigating whether Kyllo's neighbors
were growing marijuana at a triplex house.

But when officers used a thermal imager on Kyllo's residence, they found
unusual amounts of heat coming from his home's side wall and garage roof.
After obtaining a warrant and searching the house in January 1992, Kyllo
was arrested.

He was sentenced to 63 months in prison, but the high court's decision
could lead to important new guidelines on how law enforcement officials use
technology while conducting searches.

In the past, the high court has allowed law enforcement agencies -- without
warrants -- to fly over a person's property or use a flashlight to
illuminate a person's car.

However, the justices have required warrants when officials put microphones
inside a person's home or listening devices on public telephones, among
other surveillance methods.