U.S. SUPREME COURT HEARS OREGON MARIJUANA CASE

At Issue Is Whether Police Can Use A Heat-Sensing Device From Outside
A Home To Check For Marijuana Growing

WASHINGTON - Supreme Court justices joined a spirited debate today
over whether law enforcement officials violated an Oregon man's
constitutional rights when they used a heat-sensing device to find he
was growing marijuana in his home.

At issue is whether narcotics agents violated a constitutional ban on
unreasonable searches when they trained a thermal imaging device on
Danny Lee Kyllo's house - without a search warrant.

Kyllo's attorney, Kenneth Lerner, said the home should be a refuge,
where people should be free to let down their guard without fearing
the government could be unreasonably looking over their shoulder.

"Why don't your reasonable expectations of privacy include
technology? ... You know there are such things as thermal imagers,"
Justice Antonin Scalia asked. "Why do we have to assume we live in a
world without technology?"

"The burden is really improperly placed on the citizen to figure out
what technology the government may come up with," Lerner replied.

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 of his
Florence home.

"If the thermal imager functioned like an X-ray machine ... then we
don't dispute that it would be a search,"Deputy Solicitor General
Michael Dreeben said. "We are not learning what activities are going
on or where they are going on in that house."

But Justice Stephen Breyer seemed skeptical. He said that bird
watchers carry binoculars and Boy Scouts have flashlights, which
improve human senses, but "who has a heat thermal device? Nobody,
except a few."

Court watcher John Elwood, a former clerk for Justice Anthony
Kennedy, thought the justices may offer a narrow decision on the
thermal technology, but one with great implications on surveillance
and law enforcement.

"This is the first time the court has addressed what the effect is to
use technology to enhance human senses," he said. "It could apply to
cases involving telescopes. It could apply to cases involving
listening devices."

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,
agents found drug paraphernalia and more than 100 marijuana plants.
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.

A district court judge in Portland originally ruled against Kyllo,
who pleaded guilty on the condition that he could appeal the legality
of the search.

After an initial ruling in his favor, the 9th U.S. Circuit Court of
Appeals later upheld the use of the thermal imaging device, saying
its use did not constitute an illegal search.

The case is Kyllo v. U.S., 99-8508.