Originally created 02/21/01

Court hears arguments on thermal image search

WASHINGTON -- Supreme Court justices joined a spirited debate Tuesday over whether law enforcement officials violated an Oregon man's constitutional rights when they used a heat-sensing device to find he was growing marijuana in his home.

At issue is whether narcotics agents violated a constitutional ban on unreasonable searches when they trained a thermal imaging device on Danny Lee Kyllo's house -- without a search warrant.

Kyllo's attorney, Kenneth Lerner, said the home should be a refuge, where people should be free to let down their guard without fearing the government could be unreasonably looking over their shoulder.

"Why don't your reasonable expectations of privacy include technology? ... You know there are such things as thermal imagers," Justice Antonin Scalia asked. "Why do we have to assume we live in a world without technology?"

"The burden is really improperly placed on the citizen to figure out what technology the government may come up with," Lerner replied.

The government argues that law enforcement officials were within constitutional limitations when they utilized the scan, which sensed heat patterns emanating from Kyllo's home indicative of lights used to grow marijuana. They used the images -- along with a tip from an informant and electricity records -- to obtain a search warrant of his Florence, Ore., home.

"If the thermal imager functioned like an X-ray machine ... then we don't dispute that it would be a search," Deputy Solicitor General Michael Dreeben said. "We are not learning what activities are going on or where they are going on in that house."

But Justice Steven Breyer seemed skeptical. He said that bird watchers carry binoculars and Boy Scouts have flashlights, which improve human senses, but "who has a heat thermal device? Nobody, except a few."

In 1991, a narcotics task force was investigating whether Kyllo's neighbors were growing marijuana at a triplex house.

But when officers used a thermal imager on Kyllo's residence, they found unusual amounts of heat coming from his home's side wall and garage roof.

After obtaining a warrant and searching the house in January 1992, agents found drug paraphernalia and more than 100 marijuana plants. Kyllo was arrested.

He was sentenced to 63 months in prison, but the high court's decision could lead to important new guidelines on how law enforcement officials use technology while conducting searches.

In the past, the high court has allowed law enforcement agencies -- without warrants -- to fly over a person's property or use a flashlight to illuminate a person's car.

However, the justices have required warrants when officials put microphones inside a person's home or listening devices on public telephones, among other surveillance methods.

A district court judge in Portland originally ruled against Kyllo, who pleaded guilty on the condition that he could appeal the legality of the search.

After an initial ruling in his favor, the 9th U.S. Circuit Court of Appeals later upheld the use of the thermal imaging device, saying its use did not constitute an illegal search.

The case is Kyllo v. U.S., 99-8508.

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For the Supreme Court Web site: http://www.supremecourtus.gov


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