- The Washington Times - Sunday, February 25, 2001

The temptation to use new technology against criminals sometimes makes otherwise sensible people forget about civil liberties issues that ultimately matter far more than a momentary advantage over lawbreakers. Case in point the use, without a search warrant, of infrared heat sensing technology developed by the military to scan within a private residence for indications of illegal drug activity. Marijuana growers often use high-intensity lighting systems that generate a "heat signature," which can be detected by the infrared devices.

The outcome of a pending Supreme Court case will decide the constitutionality of such warrantless searches, and whether they amount to a violation of Fourth Amendment protections. Danny Kyllo was arrested and charged with manufacturing marijuana after police aimed an infrared device the Agema 210 at his Oregon home in the winter of 1992 and detected an abnormally high "heat signature." He was subsequently arrested and charged with production and manufacture of a controlled substance; his conviction has been upheld by state courts. Kyllo has appealed his case all the way to the Supreme Court, which agreed to review the matter.

On the face of it, it seems pretty clear that using infrared technology in this manner constitutes a Fourth Amendment violation. While there is no physical search of the premises, there is certainly an invasion of a private space that would in all other instances require a court-ordered search warrant. That the "search" is accomplished via technological means rather than by feet or hands or human eyes does not change the fact that a search has, in fact, been conducted.

Assistant Solicitor General Michael R. Dreeben disagrees. He argued before the Supreme Court that the infrared detection equipment "does not penetrate the walls of the house, it does not reveal particular objects in the house" merely "heat gradients," or emanations from the interior of the house to the outside. But this is lawyerly quibbling a hairsplitting attempt to parse the law in such a way as to make an obviously invasive search appear legal.

The infrared technology permits blanket searches of an entire premise the veritable "fishing expedition" explicitly proscribed by previous court rulings and the Fourth Amendment itself. And bear in mind that the capability of such technology will only improve as time passes, making even closer scrutiny possible.

As Justice David Souter quipped during oral arguments, "I think there is a reasonable expectation of privacy that what you are doing in your bathroom is not going to be picked up when you take a bath by somebody with one of these devices." Clearly. It is not unreasonable to expect that interdiction of criminals can be accomplished without trampling civil liberties and hopefully the Supreme Court will so rule.

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