Date: Tue, 20 Feb 2001 14:46:29 -0500 From: freematt@coil.com (Matthew Gaylor) Subject: Thermal Imaging Privacy Case From Oregon Goes Before High Court To: freematt@coil.com (Matthew Gaylor)
http://www.oregonlive.com/news/oregonian/index.ssf?/news/oregonian/01/ 02/lc_31ther20.frame
Privacy case from Oregon goes before high court
Justices will hear arguments today on whether thermal imaging amounts to a search Tuesday, February 20, 2001 By Peter Farrell of The Oregonian staff Louis Brandeis, one of the most famous justices of his century, was upset in 1928 when his fellow Supreme Court justices allowed government agents to tap telephones with warrants.
Someday, he said, the U.S. Supreme Court would have to decide if the Fourth Amendment, which has protected the privacy of American homes since 1791, can stand up to modern technology.
Today may be that day. Portland attorney Kenneth Lerner will ask the court today to overturn a decision about an early morning investigation on the Oregon coast in 1992 that approved the use of thermal imaging -- which reads reflected heat to detect what is beyond a wall -- to examine the home of a drug suspect.
The case has attracted the attention of search and seizure legal scholars across the country.
"The court has the opportunity in this case to create general Fourth Amendment doctrine with implications for all sorts of technology of the future," said James J. Tomkovicz, a criminal law professor at the University of Iowa who wrote afriend of the court brief in the case.
Lerner's petition asking the court to hear the case said it is about a "fundamental question of whether the Fourth Amendment's guarantee of personal security in one's home must yield to scientific advances that render our traditional barriers of privacy obsolete."
Government attorneys will continue to argue that because a thermal imager does not invade a home, or show clearly what is inside, its use is not a search. They say police do not need a warrant for thermal scans any more than they need one to smell chemicals outside a drug lab.
William P. Weiner, a professor at the Thomas M. Cooley Law School in Michigan, previewed the case in an American Bar Association publication by saying it will go far beyond Florence resident Danny Lee Kyllo and his marijuana plants.
"It deals with the conflict between personal autonomy and privacy, and governmental desires to obtain information," he wrote. The decision could explain "the current relationship between changig technologies and the Fourth Amendment's protection from unreasonable searches and seizures."
At 3:30 a.m. Jan. 16, 1992, two federal agents were parked at the corner of Hemlock Street and Rhododendron Drive in Florence, using a cameralike imager that detects heat to examine a home they thought might be tied to people growing marijuana on federal land.
They found nothing remarkable about that house. Then an Oregon National Guard sergeant assisting a Bureau of Land Management agent turned his thermal imager on the home next door. Blurs of whiteness on the imager's screen indicated unusual heat near the roof of the modest triplex unit.
That's where Kyllo was growing his marijuana. The high-intensity grow lights in the attic gave off plenty of heat.
The agents used the reading to get a warrant, raided the house 10 days later, arrested Kyllo and seized his marijuana plants.
The arrest put Kyllo, a 35-year-old Reedsport High School graduate on disability from his job in a laundry, at the center o what is shaping up as an important search and seizure case. Thermal imagers are controversial because they can "see" heat patterns through walls. It's not X-ray vision, but courts have heard testimony that a thermal image taken through an open window can tell whether a person in a darkened room is undressing. The images may even disclose whether two people in a dark bedroom are making love.
1984 case plays role Lerner thinks the 9th U.S. Circuit Court of Apepals became bogged down in legal precedent when it allowed the thermal scans and rejected Kyllo's appeal of his marijuana growing conviction. He said the court, the West's next highest court to the Supreme Court, lost sight of legal history that says a person's home is by its nature private and protected.
If the Supreme Court says the heat scan is not a search, said the University of Iowa's Tomkovicz, then law enforcement agents will be free to use heat readings, with whatever technical advances that come along, without a warrant.
Tomkovicz wrote his brief for the National Association of Criminal Defense Lawyers and the American Civil Liberties Union. He said that if the court rules the scans are searches, "it isn't going to ban thermal imaging, it's just that you are going to restrict it." Investigators will need to go to a judge for a warrant for thermal scans just as they do for wiretaps.
Lerner wants the court to look more closely at a 1984 case, United States vs. Karo, where agents used a homing device to track a can of ether used in drug procesing to a private home. The court at that time said the device amounted to an illegal search because it disclosed critical information about what was inside the house. That was information agents would otherwise have needed a warrant to get.
That argument did not convince judges from the 9th Circuit in the Kyllo case. During several years of appeals, Kyllo's sentence was reduced from more than five years in prison to one month. But in the end, the 9th Circuit accepted the government iew that there is a big difference between an electronic device placed inside a house and one that merely senses information from the outside.
You can reach Peter Farrell at 503-294-7665 or by e-mail at peterfarrell@news.oregonian.com.
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