CASE PITS PRIVACY CONCERNS AGAINST NEW TECHNOLOGIES

Washington --- The case pits privacy rights against high-tech probes. On
Tuesday, the U.S. Supreme Court will examine whether police may use a
thermal imaging device to detect heat emitting from a home without first
obtaining a search warrant.

"It's like something out of a comic book, with the police using X-ray
vision glasses to see through walls," said Steven Shapiro, legal director
of the American Civil Liberties Union.

The justices' decision, expected by July, probably could guide police and
the courts on how to use expanding technology.

As in the past, the high court "has been forced to step in and figure out
how a new technology --- like wiretapping --- fits into our constitutional
protections," said David Cole of the Georgetown University Law School and
an expert on privacy.

The "new technology" in the case is not new anymore. The case began in late
1991, when agent William Elliot from the Bureau of Land Management, who was
looking into the growth of marijuana on public lands, received a tip that
Danny Lee Kyllo, a construction worker, was growing marijuana in his
Florence, Ore., house.

High-Tech Surveillance

Examining utility records, Elliot found that the triplex where Kyllo lived
was using an unusually large amount of electricity, potentially caused by
special heat lamps used to grow marijuana. But the evidence was not enough
to warrant a search of the residence.

So Elliot asked for help from Daniel Haas, an Oregon National Guard expert
on thermal imaging. In the early hours of Jan. 16, 1992, Haas parked on a
street outside the triplex and pointed at the building an Agema
Thermovision 210, which can detect heat emissions that humans cannot.

In Kyllo's house, the device showed an abnormal amount of infrared
emissions emanating from the roof and one wall. The other two units in the
triplex showed much lower levels. From that evidence, Hass deduced that
Kyllo was using high-intensity lights to grow pot.

Elliot then obtained a warrant to search Kyllo's house and found more than
100 marijuana plants, marijuana-growing equipment and several guns.

Outcome Flip-Flops

Kyllo was indicted on one count of manufacturing marijuana, based on the
evidence found during the search. During his trial in U.S. District Court
in Portland, Kyllo sought to suppress the evidence, arguing, among other
things, that the use of a thermal imager violated the Fourth Amendment,
which protects citizens against unreasonable searches.

But Judge Helen Frye decided against suppressing the seized evidence and
refused to hear Kyllo's motion. As a result, he entered a conditional plea
of guilty and was sentenced to five years and three months in prison.

He appealed. In 1994, the 9th Circuit Court of Appeals reversed his
conviction, telling Frye to hold a hearing on the thermal imaging device.

A year later, Frye decided that the use of a thermal imaging device was not
a violation of Kyllo's constitutional rights. However, noting that Kyllo
had been a model citizen in the years since his arrest, she reduced his
sentence to one month in jail, followed by five years of supervision.

Kyllo again appealed, and in 1998, by a 2-1 vote, the appeals court
reversed Frye. It ruled that the warrantless use of the thermal imaging
device was an unreasonable search, and, therefore, the evidence found in
the search of Kyllo's house was inadmissible.

The government asked for a rehearing, and, with a new judge on the bench,
the appeals court changed its mind. It ruled 2-1 that the use of the
thermal imaging device "did not constitute a search under contemporary
Fourth Amendment standards."

"While this technology may, in other circumstances, be or become advanced
to the point that its use will step over the edge from permissible
non-intrusive observation into impermissible warrantless search, we find no
violation of the Fourth Amendment on these facts," Judge Michael Daly
Hawkins wrote.

In its brief to the Supreme Court, the Justice Department argued that while
technological developments potentially could encroach on privacy, the
thermal imaging device used in the Kyllo's case did not "literally or
figuratively penetrate the home and reveal private activities within."

The department insisted that the imager revealed "only amorphous hot spots,
not intimate details" of activities within the house.

Homeowner 'Defenseless'

But Kyllo's attorney, Kenneth Lerner, disagreed, arguing that "looking"
into someone's home with the thermal imager is not just an illegal search
but also a serious threat to privacy.

"It leaves the homeowner defenseless, because the technology overwhelms
normal methods of maintaining privacy, by rendering our walls and roofs
superfluous," Lerner wrote in his Supreme Court brief.

Technology's potential threat to privacy has increased in the years since
Kyllo's arrest, Lerner said. Police now have devices that read the
radiation emitted from all materials, including human skin. With this new
technology, he said, police officers can "look through brick walls" to see
the outline of a human body and of what that person might be carrying.