FLORENCE CASE TO TEST PRIVACY VS. TECHNOLOGY

In a case that could change how courts interpret the privacy rights of
homeowners, the Supreme Court agreed Tuesday to use a Florence man's
marijuana growing conviction to decide whether police need a search warrant
to use a device to detect heat coming from someone's home.

The court said it will consider whether using a heat-detecting device
without a search warrant violated the Constitution's Fourth Amendment ban
on unreasonable searches.

Danny Lee Kyllo, 35, of Florence, was arrested in January 1992 and charged
with growing marijuana at his home.

Investigators used a thermal imaging device to detect an unusual amount of
heat coming from the roof over the garage and from one wall. Officers then
got a warrant and searched his home, finding marijuana plants, growing
equipment and dried marijuana.

Kyllo contended the marijuana plants shouldn't be used as evidence against
him, saying the police couldn't use the heat-detecting device without a
warrant.

A federal judge ruled against him, and Kyllo pleaded guilty on condition he
could appeal the search issue.

He was sentenced to 63 months in jail.

The 9th U.S. Circuit Court of Appeals upheld the use of the device, saying
it didn't amount to a search.

The court agreed with Justice Department lawyers who said using the device
didn't intrude on any reasonable expectation of privacy.

Kyllo didn't try to conceal the heat emissions, they said, and the device
sent no intrusive rays into his home, but ``passively detected and recorded
heat that escaped from the house.''

Kyllo's lawyer argued the case ``raises the fundamental question of whether
the Fourth Amendment's guarantee of personal security in one's home must
yield to scientific advances that render our traditional barriers of
privacy obsolete.''

In a dissenting opinion, federal appeals court Judge John T. Noonan agreed
with Kyllo, comparing the heat-sensing device to a telescope that agents
might use to detect activity in someone's home.

"In each case, the amplification of the senses by the technology defeats
the homeowner's expectation of privacy. The government is not entitled to
defeat this expectation by technological means," Noonan wrote.

In his opinion, Noonan noted that state supreme courts in Washington and
Montana have ruled the heat-sensing devices intrude on privacy rights.

The complete appeals court ruling is found on the Internet at:
http://www.ce9.uscourts.gov/web/newopinions.nsf/nbc2cbe0ce5be94e88256927007a37b9/49ed6ba0b6c74f7288256927007af005?OpenDocument&Highlight=0,Kyllo.