COURT LIMITS SEARCHES

The recent decision by the U.S. Supreme Court that police must get
warrants before using heat-sensing devices to survey suspects' homes
was a blow for civil liberties. It also demonstrated that the court
is not always as politically predictable as it might have seemed.

Justices ruled that the use of a device to detect the heat emitted by
lamps inside a home represented an illegal search. Marijuana growers
often use high-powered sun lamps to cultivate plants indoors, and
police have trained the heat-sensing equipment on homes when they
suspect pot is being grown there.

Police contend that they use the device only when they suspect
someone is growing marijuana, not to randomly check houses. All they
are doing, they say, is measuring the heat coming off the exterior
surfaces of a suspect's home. And a lower court decision had ruled
that the use of the devices did not represent a search and,
therefore, did not require a warrant.

But in reversing that decision, the majority on the Supreme Court
asserted that gathering any evidence from the interior of someone's
home that could not have been obtained without a physical intrusion
is a search. That is especially true when the technology is not in
general use, said the Court's opinion.

That opinion was written by conservative Justice Antonin Scalia,
ordinarily considered a law-and-order judge who can be counted on to
side with the police on Fourth Amendment cases. He was joined by
fellow conservative Clarence Thomas but also by more liberal Justices
David H. Souter, Ruth Bader Ginsburg and Stephen Breyer.

Writing the dissent was a liberal justice, John Paul Stevens, who, in
something of a role reversal, accused Scalia of failing "to heed the
tried and true counsel of judicial restraint." He was joined by
conservative Chief Justice William H. Rehnquist and swing-vote
Justices Sandra Day O'Connor and Anthony M. Kennedy.

This unusual ideological split is likely to produce long-ranging
implications for law enforcement. The majority, going beyond the
parameters of this specific case, appeared to assert that the use of
high-tech devices to spy on people during routine surveillance must
be restrained. Scalia, writing in the majority opinion, worried that
the homeowner could be left "at the mercy of advancing technology -
including imaging technology that could discern all human activity in
the home."

We agree that it is important to draw a clear line regarding the use
of sophisticated devices in surveillance. As Scalia notes, technology
soon could enable police to peer through walls and watch what goes on
inside our homes. Clearly, that constitutes a search, and citizens
need protection against the abuse of that power.

In this case, both liberals and conservatives joined to support that
opinion. That is both a welcome departure from traditional roles and
a reminder that not all issues break down clearly along ideological
lines.