COURT REVERSES SELF, SAYS NO WARRANT NEEDED

SAN FRANCISCO The federal appeals court for nine Western states reversed
itself Thursday and said federal agents do not need a warrant before
scanning a home with a device that can detect different heat levels indoors.

The 9th U.S. Circuit Court of Appeals had ruled in April 1998 that the
device, which is supposed to detect heat from indoor drug labs but may also
be able to peek into bedrooms, was intrusive enough that agents should have
to get a warrant by persuading a judge they were likely to find evidence of
crimes. But while the government's request for a rehearing was pending, one
judge on the panel retired and a replacement was appointed. The result was
a 2-1 majority to allow the scan without a warrant and uphold a marijuana
conviction from coastal Oregon.

The opinion by Judge Michael Hawkins -- the dissenter in last year's ruling
- -- said the device merely analyzes waste heat emitted by a house, much like
a drug-sniffing dog sensing odors that come from within.

"Whatever the 'Star Wars' capabilities this technology may possess in the
abstract, the thermal imaging device employed here intruded into nothing,"
said Hawkins, joined by Judge Melvin Brunetti.

Dissenting Judge John Noonan, a member of last year's majority, said a
closer comparison would be a high-powered telescope that let an agent look
inside a house -- a search, requiring a warrant, without an entry.

"The amplification of the senses by technology defeats the homeowner's
expectation of privacy," he said.

Defense lawyer Kenneth Lerner offered another analogy: a microphone that
could pick up voices inside a home.

Because the court decided the use of the device was not a "search," he
said, "the courts have no role in whether the police have abused people's
privacy rights."

Every other federal appeals court to consider the issue has reached the
same conclusion. However, state courts in Montana and Washington have
required warrants, based on their state constitutions, and a California
appellate court ruled in 1996 that the U.S. Constitution requires a warrant.

That means California would set different standards for prosecutions in
state and federal courts, Lerner said.

Assistant U.S. Attorney Robert R. Thomson, the government's lawyer, did not
immediately return a telephone call.

Lerner's client, Danny Lee Kyllo of Florence, Ore., pleaded guilty in 1992
to manufacturing marijuana after a federal judge upheld a search of his
home. The warrant was obtained after officers used a thermal imager to scan
the home and detected high heat levels that they associated with marijuana
growing.

Kyllo, sentenced to five years and three months in prison, has remained
free during his appeal.

The ruling overturning his conviction last year was written by U.S.
District Judge Robert Merhige of Virginia, who was temporarily assigned to
the appeals court panel. Merhige retired from the bench after the ruling
and was replaced on the panel by Brunetti.

Merhige's ruling noted that an advertising brochure touted the imager's
ability to distinguish between an animal and a person from 1,500 feet away
in complete darkness, and a government witness said the device could detect
people through curtains.

That suggests the imager could also detect people in bed, bathtubs,
kitchens and other places where their privacy was entitled to be protected,
Merhige said.

Hawkins disagreed Thursday, saying the scan merely picked up "hot spots" on
the outside of the home "and not the detailed images of private activity
that Kyllo suggests the technology could expose."

The case is U.S. vs. Kyllo, 96-30333.