IS HOUSE HEAT GROUNDS FOR A SEARCH?

In a realm of law that involves sniffing dogs and beeping cans, the
Supreme Court is about to explore one more tough question: Under the
Fourth Amendment, is it unreasonable for police, without a warrant, to
measure the heat escaping from a private home?

I will not keep you in suspense. Under the circumstances described in
three cases now pending in the high court, the use of "thermal
imaging" strikes me as an Orwellian intrusion by the state into the
privacy of our homes. I would exclude evidence so acquired.

These are the facts in the lead case of Danny Lee Kylio of Florence,
Ore. Toward the end of 1991, federal agents conducted an investigation
into a suspected conspiracy to grow marijuana. When Kylio's wife was
arrested for delivery of a controlled substance, the feds decided to
take a close look at the Kyllo residence. Examination of utility
records indicated that the occupants were using an unusually large
amount of electricity.

What to do? The government enlisted the help of Daniel Haas, a sergeant in
the Oregon National Guard who had acquired expertise in the art of thermal
imaging. Early on a January morning in 1992, Haas parked on a street outside
the Kyllo triplex. He pointed his trusty Agema Thermovision 210 at the
home. Behold! The device showed abnormal infrared radiation emanating from
the roof and one wall. The other two houses in the triplex showed much lower
levels of lost heat. Deduction: Kyllo was using high-intensity lights to
grow a little pot.

On this evidence agents obtained a search warrant. Sure enough, they
found a small crop of marijuana plants in a room above the garage.
Kyllo moved to suppress the evidence, but after several years of
bouncing up and down with in the 9th federal circuit, the case came to
a pause in 1999. A panel held 2-to-I that thermal imaging is OK. It
does not constitute an unreasonable search under the Fourth Amendment.
If the high court agrees, Kylio may go to jail.

The facts are substantially the same in two other Supreme Court cases
that hang on Kylio's fate. Police in Richland County, Wis., turned a
thermal imager on the home of Charles J. Acker. Police in Erie County,
Pa., pointed an imaging WASP toward the home of Gregory Gindlesperger.
In each case the device registered large amounts of inexplicable heat.
Search warrants turned up a handful of marijuana plants. The
defendants moved to suppress the evidence. Acker lost his forfeiture
case in the 7th Circuit. Grindlesperger won his criminal case in the
Supreme Court of Pennsylvania. These appeals followed.

The Supreme Court has been through this constitutional argument time
after time. The string of relevant cases goes back to the landmark
case of Katz vs. United States in 1967. In an effort to break up a
gambling enterprise, police attached an electronic recording device to
a public telephone booth. The court held that evidence thus obtained
could not be admitted at trial.

Since then the court has pondered a dozen variations on the
theme.

Several cases have upheld the use of evidence obtained from
drug-sniffing dogs. Still others have turned on evidence obtained from
garbage cans placed on a public street, from dumpsters used by tenants
at an apartment complex, and from trash discarded in the wastebasket
of a hotel room. Trial courts have admitted evidence obtained from
low-flying aircraft and from devices that monitor telephone calls.

Lower state and federal courts are sharply divided on the use of
thermal imaging. Five of the 13 federal circuits have upheld the use
of such devices. The top appellate courts of Montana,
Pennsylvania, Washington and California have ruled the other way. As a
curbstone constitutionalist, I would demand a warrant based on
probable cause, before I would approve surreptitious imaging of a dwelling.

Maybe it's a terrible social evil for a man to grow 15 marijuana
plants in his basement. I don't think so, but I'm certain that erosion
of our Fourth Amendment freedom is an infinitely greater evil. If the
feds want to stomp out a pot crop in an attic, let them first get a
warrant.