SEARCH AND SEIZURE DOMINATES SUPREME COURT SESSION

The Supreme Court ruled 8-1 yesterday that police can bar a suspect from
entering his own house while they obtain a search warrant and heard sharply
opposing views on whether high-tech heat seekers can be used to detect an
indoor marijuana farm.

The search warrant case - among the half-dozen search-and-seizure appeals
dominating this term's docket - united conservative and liberal justices,
except for Justice John Paul Stevens.

The court ruled that a two-hour forced delay in allowing Charles McArthur
to re-enter his mobile home was constitutional because it likely kept him
from destroying marijuana he shoved under the couch when police arrived.

"The police officers . . . reasonably believed that [he] would destroy that
evidence," said the court's opinion, written by Justice Stephen G. Breyer.

Officers were called on April 2, 1997, by Tera McArthur, who asked them to
accompany her while she removed her belongings from the trailer she shared
with her husband. She told the police Mr. McArthur had hidden "dope" under
the couch.

When Mr. McArthur refused to allow a search, an officer enticed him outside
and then wouldn't let him go back in alone. Once they got a warrant,
officers found a "one-hitter" box of marijuana containing 2.5 grams.

With the evidence now cleared for admission in court, Mr. McArthur faces a
maximum penalty of 30 days in jail, but his case opened new vistas in
Fourth Amendment law.

The appeal on which justices heard arguments yesterday also involved
marijuana. It was being grown inside a home under strong halide lights that
emit so much heat police, aided by military thermal-imaging equipment, were
able to spot the three lamps from their heat signature on the roof.

Government attorneys said the device passively measures heat loss outside
the house and does not intrude.

That image was used to obtain a search warrant that resulted in the arrest
of Danny Kyllo, who was sentenced to five years and three months for his
farming.

"Our home is the basic refuge for all citizens where we are free from
government spying," argued Kyllo's attorney, Kenneth Lerner of Portland, Ore.

Mr. Lerner told the justices he believed that even using a flashlight to
peer into a dark house without a warrant would violate the Fourth
Amendment, but Justice Sandra Day O'Connor questioned whether there was an
intrusion.

"The device cannot penetrate walls or windows," she said. Mr. Lerner asked
the court to consider not only the facts in Kyllo's case but the potential
such new technology has to invade privacy.

"I don't agree," said Chief Justice William H. Rehnquist. "In a Fourth
Amendment case we look at what was actually done - not what could be done."

"You're the Supreme Court," Mr. Lerner replied in a session rife with
whimsical questions about hypothetical intrusions ranging from an officer
holding a thermometer out the window of a nearby house, to whether thermal
imaging would invade Justice Stephen G. Breyer's privacy by detecting that
he was taking a four-hour Finnish sauna while he was supposed to be
working, to binoculars wielded by bird-watchers.

Deputy Solicitor General Michael Dreeben said there was no intrusion.

"If the thermal imager functioned like an X-ray machine . . . then we don't
dispute that it would be a search," he said. "It does not penetrate the
walls of the house. It does not detect objects inside of a house."