NINTH CIRCUIT TOSSES POT CONVICTION CASE

Heat detection device ruled illegal

A federal agent who used a heat detection device to gather evidence against
an alleged Oregon marijuana grower violated the suspect's constitutional
right against unreasonable searches, the U.S. Circuit Court of Appeals
ruled yesterday.

In a split ruling, the Ninth Circuit Court of Appeals in San Francisco
threw out the conviction of Danny Kyllo, an Oregonian who was arrested in
1992 for cultivating and distributing marijuana. In a move almost certain
to be appealed further, the court ordered Kyllo's case sent back to U.S.
District Court in Portland for a new trial.

Kyllo was arrested in 1992 after an investigator for the federal Bureau of
Land Management searched his home, which revealed marijuana, drug
paraphernalia and weapons.

According to court files, the agent obtained a warrant to search the
residence after surveying it from a distance with a high-tech
thermal-imaging device he had borrowed from the Oregon National Guard.

The gadget detected high levels of heat radiating from parts of Kyllo's
home, and the agent cited the results in his request for a warrant, arguing
that the heat was produced by high-intensity lights frequently used by pot
cultivators to covertly grow the plants indoors.

Kyllo appealed his conviction, arguing that the use of the thermal-imaging
equipment was an intrusive surveillance method that violated his Fourth
Amendment right against unreasonable government search and seizure.

Based on earlier appellate cases involving the issue, Kyllo's appeal was
rejected by the U.S. District Court in Oregon. But in its split decision
yesterday, a Ninth Circuit panel consisting of Judges John T. Noonan,
Michael Daly and Robert R. Merhige, Jr., ruled that Kyllo's objection to
the device had merit.

Writing for the majority, Judge Merhige said the device was capable of
detecting such minor household activities as using a shower, taking a bath
or operating household appliances, and that the constitution prohibited the
government from monitoring private activities in such detail without a
court-authorized search warrant.

``Even the routine and trivial activities conducted in our homes are
sufficiently `intimate' to give rise to Fourth Amendment violation if
observed by law enforcement without a warrant,'' Merhige wrote.

In a dissenting opinion, Judge Hawkins argued that the agent who used the
detection gear had not entered Kyllo's home or violated his constitutional
rights.

``The thermal-imaging device employed here intruded into nothing,'' Hawkins
said. ``The use of thermal-imaging technology does not constitute a search
under contemporary Fourth Amendment standards.''

1998 San Francisco Chronicle