- The Washington Times - Tuesday, June 12, 2001

Police can use heat-sensing devices to peer inside a home only if they have a search warrant, the U.S. Supreme Court ruled yesterday.

The decision resulted from the seizure of marijuana at a Florence, Ore., home after infrared cameras indicated to police the resident was using heat lamps to grow the illegal plant. Police lacked a warrant or the resident´s permission when they aimed the thermal-imaging camera at the home of Danny Lee Kyllo.

In a 5-4 ruling, the Supreme Court ruled the Fourth Amendment´s ban against unreasonable searches required police to obtain a search warrant based on evidence of a crime before they could use the infrared camera.

"Where, as here, the government uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search´ and is presumptively unreasonable without a warrant," Justice Antonin Scalia wrote for a majority of the court. He was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and Clarence Thomas.

Justice John Paul Stevens wrote a dissent that was joined by Chief Justice William H. Rehnquist, Anthony M. Kennedy and Sandra Day O´Connor.

Yesterday´s ruling apparently would prohibit the kinds of searches that led to a Silver Spring man´s forfeiting his home last year in lieu of jail time after Montgomery County police found marijuana in his basement.

The Supreme Court ruling reversed two lower court decisions that said use of heat-sensing devices was not a search requiring a warrant because there was no entry into Mr. Kyllo´s home, merely detection of heat escaping from it.

The decision sets limits on any police technology the court calls "sense-enhancing."

Allowing police with high-technology devices to peer inside homes without warrants "would leave the homeowner at the mercy of advancing technology, including imaging technology that could discern all human activity in the home," the court majority said.

In a dissenting opinion, Justice Stevens argued that use of the Agema Thermovision scanner represented no unreasonable intrusion into Mr. Kyllo´s privacy.

"Those observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of petitioner´s home but did not invade any constitutionally protected interest in privacy," Justice Stevens wrote.

Government attorneys had argued that police use of infrared cameras should be allowed without warrants as long as they did not observe "intimate details."

However, the Supreme Court said, "Such an approach would be wrong in principle because, in the sanctity of the home, all details are intimate details."

In other recent Fourth Amendment cases, the Supreme Court has ruled that police must have owners´ consent or a search warrant to squeeze their luggage while looking for drugs and that they must have a warrant to put electronic eavesdropping devices inside homes or in telephone booths.

However, police do not need warrants to search through garbage left on curbs, to put beepers on cars allowing them to be easily followed or to observe back yards while flying overhead.

In Mr. Kyllo´s case, police were investigating his neighbor but began suspecting him of growing marijuana when they aimed an infrared camera at his home from a car. It showed bright spots in the attic over his garage and a side of his house indicating they were relatively hot, which they interpreted as the presence of high-intensity lamps.

Based on records of unusually high electricity bills and an informant´s tip, they obtained a search warrant. Police found 100 marijuana plants in the hot areas shown by the infrared camera.

Kevin Neely, spokesman for the Oregon Attorney General´s Office, said law enforcement personnel used infrared cameras without warrants in few cases. He was not surprised by the Supreme Court´s ruling. "We will abide by it," he said.

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