- The Washington Times - Wednesday, February 21, 2001

The Supreme Court ruled 8-1 yesterday that police can bar a suspect from entering his own house while they obtain a search warrant and heard sharply opposing views on whether high-tech heat seekers can be used to detect an indoor marijuana farm.

The search warrant case among the half-dozen search-and-seizure appeals dominating this term's docket united conservative and liberal justices, except for Justice John Paul Stevens.

The court ruled that a two-hour forced delay in allowing Charles McArthur to re-enter his mobile home was constitutional because it likely kept him from destroying marijuana he shoved under the couch when police arrived.

"The police officers … reasonably believed that [he] would destroy that evidence," said the court's opinion, written by Justice Stephen G. Breyer.

Officers were called on April 2, 1997, by Tera McArthur, who asked them to accompany her while she removed her belongings from the trailer she shared with her husband. She told the police Mr. McArthur had hidden "dope" under the couch.

When Mr. McArthur refused to allow a search, an officer enticed him outside and then wouldn't let him go back in alone. Once they got a warrant, officers found a "one-hitter" box of marijuana containing 2.5 grams.

With the evidence now cleared for admission in court, Mr. McArthur faces a maximum penalty of 30 days in jail, but his case opened new vistas in Fourth Amendment law.

The appeal on which justices heard arguments yesterday also involved marijuana. It was being grown inside a home under strong halide lights that emit so much heat police, aided by military thermal-imaging equipment, were able to spot the three lamps from their heat signature on the roof.

Government attorneys said the device passively measures heat loss outside the house and does not intrude.

That image was used to obtain a search warrant that resulted in the arrest of Danny Kyllo, who was sentenced to five years and three months for his farming.

"Our home is the basic refuge for all citizens where we are free from government spying," argued Kyllo's attorney, Kenneth Lerner of Portland, Ore.

Mr. Lerner told the justices he believed that even using a flashlight to peer into a dark house without a warrant would violate the Fourth Amendment, but Justice Sandra Day O'Connor questioned whether there was an intrusion.

"The device cannot penetrate walls or windows," she said. Mr. Lerner asked the court to consider not only the facts in Kyllo's case but the potential such new technology has to invade privacy.

"I don't agree," said Chief Justice William H. Rehnquist. "In a Fourth Amendment case we look at what was actually done not what could be done."

"You're the Supreme Court," Mr. Lerner replied in a session rife with whimsical questions about hypothetical intrusions ranging from an officer holding a thermometer out the window of a nearby house, to whether thermal imaging would invade Justice Stephen G. Breyer's privacy by detecting that he was taking a four-hour Finnish sauna while he was supposed to be working, to binoculars wielded by bird-watchers.

Deputy Solicitor General Michael Dreeben said there was no intrusion.

"If the thermal imager functioned like an X-ray machine … then we don't dispute that it would be a search," he said. "It does not penetrate the walls of the house. It does not detect objects inside of a house."

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