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WASHINGTON (AP) - An Oregon man says narcotics agents invaded his privacy and
trampled on his Fourth Amendment rights when they used a device to detect
excessive heat coming from his house - without a search warrant.
The ``thermal imager,'' a camera-like device that depicts infrared radiation,
gave law enforcement officials a piece of evidence that led to a search
warrant for Danny Lee Kyllo's home in Florence, Ore. Inside, agents found
drug paraphernalia and more than 100 marijuana plants, and arrested him.
Kyllo has appealed his case to the Supreme Court, which on Tuesday was
considering whether law enforcement officials violated a constitutional ban
on unreasonable searches when they used the heat-sensing device. The
nine-year-old case pits technology against personal privacy.
``Technology that exploits invisible, sub-sensory phenomena ultimately fails
to respect the traditional boundaries of society, and therefore leaves the
population defenseless against such surveillance,'' Kyllo's attorney Kenneth
Lerner wrote in court papers.
Lerner said the government downplays the fact that an experienced operator of
the device can glean a wealth of information from the thermal imaging scans,
including ``fairly precise'' images through some glass windows.
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.
In court papers, government attorneys compared the thermal imaging scan to an
officer observing someone's home. They argued that the scan does not
penetrate the house and reveal private activities, and is not a
constitutional violation.
The ``government investigator stationed in a public place used a thermal
imager to observe an area exposed to the public - the roof and exterior walls
of a house - and did not observe private activities,'' they wrote.
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, 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.
On the Net: For the Supreme Court Web site: Home - Supreme Court of the United States
By KATHERINE PFLEGER
.c The Associated Press
trampled on his Fourth Amendment rights when they used a device to detect
excessive heat coming from his house - without a search warrant.
The ``thermal imager,'' a camera-like device that depicts infrared radiation,
gave law enforcement officials a piece of evidence that led to a search
warrant for Danny Lee Kyllo's home in Florence, Ore. Inside, agents found
drug paraphernalia and more than 100 marijuana plants, and arrested him.
Kyllo has appealed his case to the Supreme Court, which on Tuesday was
considering whether law enforcement officials violated a constitutional ban
on unreasonable searches when they used the heat-sensing device. The
nine-year-old case pits technology against personal privacy.
``Technology that exploits invisible, sub-sensory phenomena ultimately fails
to respect the traditional boundaries of society, and therefore leaves the
population defenseless against such surveillance,'' Kyllo's attorney Kenneth
Lerner wrote in court papers.
Lerner said the government downplays the fact that an experienced operator of
the device can glean a wealth of information from the thermal imaging scans,
including ``fairly precise'' images through some glass windows.
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.
In court papers, government attorneys compared the thermal imaging scan to an
officer observing someone's home. They argued that the scan does not
penetrate the house and reveal private activities, and is not a
constitutional violation.
The ``government investigator stationed in a public place used a thermal
imager to observe an area exposed to the public - the roof and exterior walls
of a house - and did not observe private activities,'' they wrote.
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, 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.
On the Net: For the Supreme Court Web site: Home - Supreme Court of the United States
By KATHERINE PFLEGER
.c The Associated Press
