JUSTICES RULE FOR PRIVACY POLICE USE OF THERMAL IMAGING CALLED AN
UNREASONABLE SEARCH

Police may not routinely use a heat-sensing device to see if marijuana may
be growing inside a private home, the Supreme Court ruled Monday in a
decision that emphasized the importance of protecting people against
intrusive new technologies.

The 5-4 ruling was written by Justice Antonin Scalia and disrupted the
court's usual ideological lineup. Scalia attached great importance to the
sanctity of the home and said that police may not explore details of what
goes on there -- even from the outside -- without first going before a
judge to obtain a search warrant.

''In the home, our cases show, all details are intimate details, because
the entire area is held safe from prying government eyes,'' wrote Scalia,
joined by Justices David Souter, Clarence Thomas, Ruth Bader Ginsburg and
Stephen Breyer. The majority reversed a lower court decision upholding a
thermal scan of an Oregon man's home. Scalia's opinion said such
surveillance is a ''search'' covered by the Fourth Amendment prohibition
against unreasonable searches and seizures.

Dissenting justices noted that the infrared camera in the case measured the
heat emitted from the exterior of the home. Because the scrutiny was
''off-the-wall surveillance, rather than any through-the-wall surveillance,
the officers' conduct did not amount to a search and was perfectly
reasonable,'' they said.

The case was one of several police disputes the court handled this term
that weighed the competing interests between the government's ''war on
drugs'' and concerns for infringements on civil liberties.

Thermal imaging converts radiation into images based on the degree of heat.
(For example, black is cool and white is hot.) In January 1992, when
federal agents targeted the Florence, Ore., home of Danny Lee Kyllo, the
scan showed that the roof over the garage and a side wall were hotter than
the rest of the home.

They concluded Kyllo was using special lights to grow marijuana in the
house. Using that imaging data, tips from informants and utility bills,
agents persuaded a federal judge to issue a search warrant. Inside, agents
found more than 100 plants growing.

Kyllo pled guilty to manufacturing marijuana but reserved the right to
challenge the trial judge's denial of his motion to suppress the evidence
from the thermal scan. The U.S. Court of Appeals for the 9th Circuit
rejected Kyllo's claim. It said he had no reasonable expectation of privacy
in the heat emitted from his home.

In reversing that ruling Monday, the high court reiterated that ''the
Fourth Amendment draws a firm line at the entrance to the house.''

Homeowners should not be ''at the mercy of advancing technology,'' Scalia
said. ''While the technology used in the present case was relatively crude,
the rule we adopt must take account of more sophisticated systems that are
already in use or in development,'' he wrote.

Scalia rejected the federal government's arguments that the thermal imaging
was constitutional because it did not focus on ''private activities'' in
''private areas'' of the house.

The dissenting justices, in an opinion written by Justice John Paul
Stevens, distinguished between surveillance that goes ''through the wall''
to detect activities and mere scrutiny of emissions effectively ''in plain
view'' that are interpreted by police.

Because the thermal imaging in Kyllo's case was deemed ''an unlawful
search,'' a lower court judge will now have to determine whether, without
the scan evidence, the warrant would have been issued. Kenneth Lerner,
Kyllo's lawyer, said Monday that he hopes the government will drop the
case. Kyllo's original five-year sentence was reduced on other grounds and
he has been free but under court supervision for the past nine years,
Lerner said.