HIGH-TECH TOOL HELPS METH HUNT

Questions Remain Whether Courts Will Allow The Heat-seeking Device.

WASHINGTON -- A potential tool for sniffing out chemicals used in Central
Valley methamphetamine labs provokes an intriguing constitutional debate.

The core question seems simple but grows quickly complicated. What is a search?

It's a legal question that expands with every technological leap.

A search is certainly the police combing through a suspect's house. But is
it also police parked outside while scooping up heat emissions from a pot
grower's house or chemical emissions from a meth cooker's kitchen?

Those questions have Valley law enforcement officials and defense lawyers
alike awaiting a Supreme Court case this month involving a high-tech
anti-drug weapon that was used to bust a man accused of growing marijuana.

"No one," wrote federal Judge John Noonan Jr., an appointee of President
Reagan, "wants to live in a world of Orwellian surveillance."

Valley officials aren't thinking Orwellian as they contemplate purchase of
a "stand-off chemical agent detector." They're thinking meth fighting and
say the device, set for a field test this month, could help track the
Valley's scattered meth labs.

A $500,000 state grant would be used for the chemical detector, originally
deployed to search out signs of Iraqi chemical weapons use during the
Persian Gulf War. Though the High Intensity Drug Trafficking Area program
serving nine counties from Sacramento to Kern hasn't made a decision to
buy, officials have been exploring the idea.

"We have talked to a bank of lawyers already," Stanislaus County Sheriff
Les Weidman said, "and they feel comfortable that they can defend it."

At the same time, Weidman acknowledged that defense lawyers could seek to
challenge use of the chemical sniffer.

After all, that's what defense lawyers are paid to do. Judges, for
instance, had to rule in 1927 that the Coast Guard's use of the
technological innovation we now call a common spotlight was not an illegal
search. Decades later, judges decided drug-sniffing dogs amounted to an
illegal search -- because incriminating odors are out in public.

Sometimes, defendants can find conservative judges to agree with them.

The 74-year-old Noonan, a judge on the 9th U.S. Circuit Court of Appeals,
uttered his warning about Orwellian technology while writing in dissent
from an appellate panel's decision in the case of accused Oregon pot grower
Danny Lee Kyllo.

Kyllo's case, with all its implications for Valley law enforcement, will be
heard by the Supreme Court Feb. 20. Police busted Kyllo in 1992 after an
Oregon National Guard sergeant had used an Agema Thermovision 210 device to
detect otherwise invisible heat waves from Kyllo's house. The device,
resembling a video camera, produced a thermal scan showing more heat coming
from Kyllo's garage roof and side walls than other houses.

The heat waves, combined with other evidence, convinced police that Kyllo
was running an energy-intensive, pot-growing operation.

Police then obtained a search warrant and found more than 100 marijuana
plants. Kyllo, however, contends the Agema Thermovision 210 violated the
Constitution's Fourth Amendment guarantee against unreasonable search and
seizure.

"It leaves the homeowner defenseless, because the technology overwhelms
normal methods of maintaining privacy, by rendering our walls and roofs
superfluous," Kyllo's lawyer, Kenneth Lerner, wrote in his Supreme Court
brief. "When technology can exceed the natural senses, it subverts the
human ability to contain private matters in a normal way."

Nor is Lerner alone in thinking so. State supreme courts in Montana and
Washington have found that thermal imaging devices violate state
constitutions. Moreover, Kyllo first prevailed by a 2-1 margin before the
9th Circuit but lost after the government sought a rehearing and one judge
was replaced.

"Technological developments hold a serious potential to encroach on
privacy," the Justice Department states in its Supreme Court brief, "but
thermal imagers do not literally or figuratively penetrate the home and
reveal private activities within."

The thermal scan works by detecting infrared radiation and by converting
that to a visible image displayed on a screen. It does not look through
walls nor does it emit beams or rays.

The merely passive acquisition of heat signals, displayed as "amorphous
white or gray blotches" on the screen, therefore does not entail a search,
the government argues. In its earlier cases, the Supreme Court sets a
two-part test for Fourth Amendment violations: Does the person have an
expectation of privacy, and is that expectation reasonable?

"Whatever the Star Wars capabilities this technology may possess in the
abstract, the thermal imagery device employed here intrudes into nothing,"
the 9th Circuit's two-member majority wrote in upholding Kyllo's conviction.

Valley law enforcement officials, too, say their proposed meth detector
would pass the constitutional smell test.

"It doesn't really permeate the residence," said Bill Ruzzamenti, the
Fresno-based director of the Central Valley HIDTA. "It only detects what
escapes."

Like the thermal imager, the military's chemical agent detectors also
passively pick up infrared radiation. The incoming infrared radiation,
which in some military devices can be picked up from 5,000 meters away if
conditions are right, is then compared to the infrared radiation
characteristics associated with known chemical agents. For meth hunters,
this might be telltale chemicals such as red phosphorous.

"Right now, we feel pretty optimistic that this will work," Weidman said.

This month, the device, developed by a Southern California firm, could be
brought into the Valley for a field test. Weidman said this likely would
involve setting up a simulated meth lab, with its associated chemicals, and
then setting the detector's handlers off on an infrared treasure hunt.