HIGH-TECH FRISK

Will new technology redefine the search?

If police officers show up at your home, ask to look around inside,
and you tell them no, they need an order from a judge to search
against your wishes. On the other hand, if officers want to watch your
place from the street, they can, no matter what you think or say.

In public, police can pat you down without a search warrant if they
have a reasonable suspicion that you're a criminal.

Now they can also use sophisticated technology to detect things they
normally could not see -- such as heat coming off your house, or beer
on your breath, or a gun under your coat -- without your consent, even
without your knowledge. Soon, more advanced gadgets may let them peer
inside your home to see the heat given off by stoves, lamps, baths and
human bodies.

When police officers conduct such high-tech surveillance, have they
violated your legal right to privacy? Have they, in effect, searched
your home without a warrant? Or have they simply kept a watchful eye
out in their effort to protect the public's safety?

The U.S. Supreme Court will soon address those questions in an Oregon
case in which police without a search warrant used an infrared camera
known as a "thermal imager" to detect heat coming from a home where
Danny Lee Kyllo was using powerful lights to grow marijuana.

Police had used the imager to take infrared pictures of Kyllo's house
to gather visual evidence -- supplementing an informant's tip and
electricity billing records -- to support a request for a warrant to
search the house. When they got the warrant and went inside, they
found more than 100 marijuana plants prospering under hot,
high-intensity "grow lights."

Kyllo pleaded guilty but appealed the imaging all the way to the
nation's highest court. He argued that using the imager constituted a
search in itself, requiring a warrant.

Law enforcers, civil libertarians, lawyers and scholars across the
Triangle and the nation await the court's ruling in Kyllo's case,
which is expected by next month. The ruling could set a uniform
standard for using the imagers on people's homes and indicate how far
police will be allowed to go with other high-tech search and
surveillance gear.

"Of course you want to catch the bad guys," said Andy Taslitz, a
visiting law professor at Duke Univer-sity and a former prosecutor.
"But if the Supreme Court finds that this is not a search, there's no
reason why the police can't drive down the street and scan every house."

Public safety and personal privacy are inevitably somewhat at odds in
a free society. In the United States, it falls to the courts to
maintain a contemporary balance.

As technology improves, police often lag behind criminals in using the
latest gadgets. On a recent raid, Cary police officers discovered that
a resident had watched them on the front porch through a camera
relaying images to a monitor in a closet. The law, by nature largely
reactive, strains to keep current the Consti-tution's Fourth Amendment
protection from unreasonable government seizures of personal property
and searches of people's homes, the most private realm of American
life.

"Technology is advancing faster than our concepts of privacy," said
Taslitz, a Fourth Amendment scholar. "It's going to get more and more
complex as technology develops.

"What if it were a case involving explosives or bacterial sabotage?
You might feel it's OK to give up some privacy for that. What if
police are able to shoot a ray gun at you as you walk down the street
to see if you have drugs? Where do you draw the line?"

Slow-Tech Triangle:

Police across the country use a wide array of high-tech equipment,
including thermal imagers, hidden cameras and audio microphones that
pick up conversations in public places, remote microphones that hear
conversation through windowpanes, scanners that detect concealed guns,
and even flashlights and clipboards with hidden alcohol sensors at
drunken-driving stops.

Because of the high cost and controversy, Triangle police have been
slow to embrace such technology. But some is in use here.

Thermal imagers, for example, are in use by Cary police, the State
Bureau of Investigation, the State Highway Patrol helicopter team and
the N.C. National Guard. Raleigh police don't have them. Some
agencies, such as the Durham police, won't say what tools they have.

Some imagers are portable, about the size of a video camera, and
others are mounted on aircraft. The SBI has a thermal imager on an
airplane based near the Triangle that helps find criminal suspects,
lost people and marijuana growing outside and in buildings, assistant
director Mike Robertson said. The State Highway Patrol makes similar
use of imagers on helicopters.

Police say imagers make their job safer and more efficient.

Thermal imagers -- cameras that detect infrared radiation invisible to
the naked eye -- measure heat from objects and show temperature
contrasts. (They are not the same as the night-vision equipment that
transmitted nighttime images of the war with Iraq; those devices
amplify low levels of visible light.)

The blurry thermal images can pinpoint a person fleeing through the
woods at night or the waste heat wafting off a roof -- whether because
of poor insulation, marijuana-growing lamps or a hot drug lab. Police
can then use the images to get a warrant from a judge to search inside.

"These devices can be vital in certain investigations," Cary Police
Chief Windy Hunter said. "It makes the officers' job more efficient,
more effective and safer."

Triangle police say they don't scan houses randomly and can't see
inside them. They say they use thermal imagers only when they already
have reason to suspect criminal activity.

"We simply don't have the resources in law enforcement to go out and
scan every house to see if it's glowing," Raleigh Police Capt. Melvin
Matthews said. "As a citizen, I don't see a reason for it to be a
concern. Do you have anything to be afraid of if somebody measures the
amount of heat coming from your roof? Not if you're not doing anything
wrong."

Cary police Lt. Doug Scott, who commands his agency's drug, vice and
surveillance team, said thermal imagers like the one he got a year ago
are but one example of new technology that police need to do their
jobs.

"When many of us got hired, we just talked on a radio and used a pen,"
Scott said. "In 2001, using technology is the only way to deter
violators. If you're going to get serious about crime-busting, you've
got to give law enforcement the tools to do the job."

Public-Safety Benefits:

Cary police use their $14,000 thermal imager not only to look for
marijuana houses but also to find prowlers, suspects in hiding and
lost children, he said.

"It's not a search," Scott said. "It's not an invasion of privacy.
There's no need for a warrant. It's no more than looking at heat sources."

Some police agencies elsewhere announce when they're trying new
surveillance technology in an effort to gauge the public's view of
their reasonableness and to allay concerns about secret spying on
ordinary, law-abiding citizens.

But that disclosure also may teach attentive criminals what to look
out for. For that reason, some police keep their gadgets secret.

"We're afraid that if people knew what we've got, they'd start looking
for it," Durham police Lt. Ed Sarvis said. "The more people know about
it, the easier it is for people to defeat it and make it worthless. We
don't want to compromise our investigations."

Robertson, the SBI assistant director, said portable imagers often
help protect agents when armed suspects are hiding.

"We don't want to send our people in blindly," he said. "The thermal
imagers can show us where the suspects are."

State Patrol Sgt. Todd Woodard, who supervises the helicopter unit,
said the patrol has used thermal imagers for a decade. They've helped
find bank robbers, spot millions of dollars worth of illegal marijuana
plants, rescue stranded boaters and locate victims of hurricane flooding.

"It's a great tool, but we use ours strictly for catching bad guys and
rescuing people," Woodard said. "I think the things we do are good."

The patrol air unit flew 43 "forward-looking infrared RADAR" missions
on two helicopters last year, including 14 searches for criminal
suspects or prison escapees and 11 searches for missing people, he
said. In March, the unit helped find an elderly Burlington woman who
wandered from home and got lost.

Woodard's boss, Patrol Capt. Randy Coble, said the missions are
carefully targeted, not random peeks into private lives.

"We've never used the FLIR to look at the roof of your house," Coble
said. "We've never been asked to do that since I've been over the
unit, since 1998. What the future holds, I don't know."

Privacy Concerns:

Skeptics say the high-tech surveillance gear goes too far. If cops use
it, critics argue, they should get search warrants first to keep it
legitimate and protect people's privacy.

"The potential here is for Big Brother action in which we're followed
all of the time," said Bob Mosteller, a Duke University law professor.
"We think we're protecting ourselves from prying eyes when we go
inside and shut the door. Technology threatens the efforts we make to
stay private."

So far, Mosteller said, police have been fairly conservative in their
use of such technology, perhaps for fear of causing a backlash in the
courts.

The U.S. Supreme Court in 1967 said physical intrusion is not
necessary to constitute a police search. That ruling required a search
warrant for phone wiretaps.

On the other hand, the Supreme Court said in 1983 that using dogs to
sniff for drugs in airport luggage without a warrant is OK.

Another Supreme Court doctrine says that evidence gathered illegally
can't be used in court.

The legal test for what constitutes a search under the Fourth
Amend-ment depends partly on the contemporary consensus about
reasonable expectations of privacy, so the standard evolves over time.

"People have an enormous expectation of privacy in their homes," said
Deborah Ross, executive director of the state affiliate of the
American Civil Liberties Union, which supports Kyllo's challenge to
the thermal imaging of his Oregon house. "If this is allowed, police
could use the next iteration of technology willy-nilly. The other
thing is people do a lot of things that are hot in their house that
are not illegal."

Ross said thermal-image scans plainly are searches. "Get a warrant;
it's so easy," she said. "And the Constitution kind of demands it."

Courts See in Different Light:

Federal courts have issued conflicting rulings during the past decade
in a number of challenges to warrantless thermal imaging.

One federal judge, for example, ruled that letting heat escape from
marijuana growth lights in a house is like setting garbage outside for
pickup: Even if the resident does not realize it, he has sacrificed
any expectation of privacy by discarding his waste in public.

In another case, a federal appeals court ruled to the contrary, that
"people need not ... anticipate and guard against every investigative
tool" of the government. "To hold otherwise would leave the privacy of
the home at the mercy of the government's ability to exploit
technological advances."

Federal appeals courts are divided on whether thermal imagers require
search warrants, so a Supreme Court ruling in Kyllo's case could set a
uniform standard.

Taslitz, the Duke professor, said it is conceivable that the Supreme
Court will take a middle path, ruling that police thermal imagery is
not a search requiring a warrant based on probable cause, but one
requiring only reasonable suspicion of criminal activity.

The court might, in other words, allow a high-tech frisk, letting
police act on informant tips and other leads while outlawing random
scans of private homes.

The Kyllo case gives the legal system a chance to catch up with
surveillance technology, if only for a while amid perpetual innovation.

"I don't think the sky falls whichever way the court goes," Taslitz
said. "It's an early sign how they're going to decide Fourth Amendment
issues on new technology."

Cary Police Chief Hunter hopes the court will give cops a clear rule
on what they can and can't do.

"There's a balance there that we recognize between people's privacy
rights and law enforcement's need to gather information," he said. "A
lot of times technology is ahead of the courts. It's changing. And
we're all learning as we go."

The Fourth Amendment:

The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.