RULING CURBS USE OF HEAT-SEEKING CAMERAS

Police Aircraft Now Need Warrant Appeal Court Acquits Man of Charges

The Ontario Court of Appeal has effectively grounded police aircraft
equipped with heat-seeking cameras, saying they can no longer fly over
private residences taking pictures unless officers obtain a warrant.

A homeowner's right to privacy extends to the heat generated inside a home
and reflected on the outside, a three-judge panel said yesterday.

And the use of Forward Looking Infrared (FLIR) cameras to detect heat
emanating from a home amounts to a search, which requires judicial
authorization, the court said.

"I am satisfied that the FLIR technology discloses more information about
what goes on inside a house than is detectable by normal observation or
surveillance," Madam Justice Rosalie Abella wrote for the court, adding
that "some perfectly innocent" activities, such as taking a bath or using
lights at unusual hours, can create the kind of heat emanations picked up
by infrared aircraft cameras used in drug investigations.

The court acquitted Walter Tessling of Kingsville, Ont., near Windsor, of
charges of possessing firearms and marijuana seized after an RCMP plane
equipped with a FLIR camera flew over his home in May of 1999, taking
pictures of the thermal energy radiating from the building.

In an interview yesterday, Frank Miller, Tessling's lawyer, said the case
isn't about "guilty people hiding things," it's about protecting people "so
they don't have this feeling Big Brother is watching" as they go about
their lives.

Letting police use "technological tricks" to encroach on a homeowner's
privacy can have a chilling effect on the use of anything from a pottery
kiln to a hot tub, he said.

Knowing police are flying overhead taking pictures and could use your
electrical consumption as an excuse for questioning your neighbours is
enough to put a damper on anyone's activities, Miller added.

In its decision, the court is saying "Look, that kind of spy technology is
going to have to be looked at very carefully," he said.

Planes equipped with FLIR cameras are used "an awful lot" for drug
investigations in the United States but far less so in Canada, party
because of the cost, Miller added. However, it's something police are
likely to push for more of, he said.

In its decision yesterday, the appeal court excluded "a large quantity" of
marijuana and weapons discovered in Tessling's home because they were
seized as a result of an illegal search in which the FLIR camera played a
central role. The operating theory behind the technology is that while heat
usually emanates evenly from a building, the lights used in marijuana
growing operations give off an unusual amount of heat and an area of
intense heat might signal a marijuana-growing operation, Abella said.

"In my view, there is an important distinction between observations that
are made by the naked eye or even by the use of enhanced aids, such as
binoculars, which are in common use, and observations which are the product
of technology," she said yesterday.

"A member of the public can walk by a house and observe the snow melting on
the roof, or look at the house with binoculars, or see steam rising from
the vents."

"Without FLIR technology, however, that person cannot know that it is
hotter than other houses in the area or that one room in particular reveals
a very high energy consumption," she said, writing for Associate Chief
Justice Dennis O'Connor and Justice Robert Sharpe.