SEARCH AND SEIZURE

	February 20, 2001
	The Supreme Court heard arguments today about whether high-tech surveillance by the government constitutes "unreasonable search and seizure." NewsHour regular Jan Crawford Greenburg reports.

GWEN IFILL: The Court heard arguments today in a case from Oregon, which pits police use of technology against the Fourth Amendment guarantee against unreasonable searches and seizures. At issue: Whether law enforcement officials may use thermal imaging devices to detect heat coming from a house- - in this case, heat produced from an indoor marijuana growing operation-- without first obtaining a warrant. For more on today's proceedings, we're joined by NewsHour regular Jan Crawford Greenburg, legal affairs correspondent for the "Chicago Tribune." So, Jan, I take it that this case, it's privacy and technology all coming to a head in what case? What brought it to the court? JAN CRAWFORD GREENBURG: Well, it kind of has a long and convoluted history. It came about in 1992 when authorities in Oregon were conducting a drug task force investigation and they began to suspect that Danny Kyllo might be growing marijuana in his home. So one night in the middle of the night, two officials trained this thermal imaging device on his house. And the device, which records heat that comes out of your house, like infrared, radiation, it's like a camera, detected some hot spots. GWEN IFILL: They were outside of his house. JAN CRAWFORD GREENBURG: Right, sitting outside on the street basically taking this kind of high-tech photograph that showed these hot spots. So they took that information to a judge and, coupled with some other information that they had gotten on Mr. Kyllo, were able to get a warrant. They got the warrant. They executed the warrant, went inside his home and lo and behold found 100 marijuana plants all growing under these high intensity heat lamps. Now, Mr. Kyllo pleaded guilty to this offense, but he conditioned that plea on the assumption that he could challenge the government's use of these thermal imaging... this thermal imaging device in this case. GWEN IFILL: Was it in itself a search? JAN CRAWFORD GREENBURG: Exactly. When I mention the procedural that is kind of convoluted he initially won in a San Francisco-based federal appeals court. But the government asked for a rehearing and one of the judges resigned, another judge took his place and so when the court reheard the case, he lost. That's how he took it to the Supreme Court, and that's how he ended up here today. GWEN IFILL: One of the courts along this long convoluted path, one of the defenses on the part of the government was that this was akin to a neighborhood... someone who lives in a home leaving their garbage on a curb and that garbage if that was looked through by law enforcement authorities -- that was not a warrantless search, that was not a violation. JAN CRAWFORD GREENBURG: That wouldn't be a search at all because the court has long held that things that we, you know, that we hold out to the public, like the garbage we leave on our curb, you know, we don't expect that they're going to be kept private. So, the government doesn't do anything wrong when it starts looking through, for example, like you said, the garbage, and doesn't infringe on our privacy and doesn't need a warrant. Now, I mean, as you know, the Fourth Amendment protects against unreasonable searches and seizures. And the issue in this case is whether or not this was a search at all. The court has long held that a search occurs when the government intrudes into an area that people would reasonably expect would be private. GWEN IFILL: Not the same thing as a flashlight in a car at a traffic stop. JAN CRAWFORD GREENBURG: Right, right, because that's something that has become accepted uses, and we know people have flashlights. The Boy Scouts, as I think Justice Breyer said today, walk around carrying flashlights. So we might not expect that something, you know, that a person could detect with a flashlight outside would remain private. But, Mr. Kyllo's lawyer argued today that we do expect things that go on inside our home to be private, and the use of this thermal imaging device detected something that he was doing inside his house. So, therefore, that violated his expectations of privacy and constituted a search so the government should have been forced to get a search warrant before they used the device in the first place. GWEN IFILL: Now, the government had a tip. They had reason to believe that there was a reason why the excess heat was coming out the house, just not driving down the street trying to see who has got their heat turned up too high. JAN CRAWFORD GREENBURG: Right. GWEN IFILL: What did the government say if their defense? JAN CRAWFORD GREENBURG: Well, the government said, look, this is not - you know -- some scary technological device that can go through concrete or penetrate walls, that it's not detecting, you know, what you're doing in your home, an object or a person that's walking around; all it's doing is looking at the outside of the house. It's detecting the heat emissions from the roof. You know, it doesn't really show up anything more than what the police could have learned if they had waited and allowed a snow to come down, a snowfall, and the hot spots would have melted in little spots on the roof. So the government's case basically was this is not a big deal. GWEN IFILL: Okay. Here comes tea leaf reading or marijuana leaf reading time, here it comes. What did the Court say today? What was the argument like? What did the Justices seem to be listening to? JAN CRAWFORD GREENBURG: Well, it was interesting. I mean, they clearly - the Justices clearly are concerned about the power of technology to invade our privacy -- the government's use of that technology. The question was, is this the case? Does this case do it? It broke somewhat along traditional lines with the liberal Justices, the more liberal ones, being very concerned that the government was essentially going into the home here with this device and violating this man's privacy. The more conservative justices, particularly Justice Scalia were sympathetic to the government. Justice Scalia liked the snowfall analogy and said this doesn't show anything -- said this device doesn't show anything that police couldn't have used, couldn't have learned with their unaided eye in another context. He said, look, if we don't allow this thermal imaging device without a warrant, what about the... You know, flashlight, binoculars, what about eye glasses? All of those things help police officers detect. GWEN IFILL: Have there been other similar cases that this court has ruled on which we might look as a precedent? JAN CRAWFORD GREENBURG: Well, you mentioned one. The garbage on the curb; that's the one the appeals court relied on. That's the one the government relied on today. So whether the court goes that route, it would be a victory for the government. The defendant here, Mr. Kyllo though puts forth another case. He said, you know, you shouldn't look at the garbage. This isn't heat waste. This is more like the wire tapping cases, electronic surveillance cases where the court has ruled that you can't put a microphone, for example, on the outside of a phone booth to detect the sound waves. I've got to tell you, a couple Justices seemed to suggest today that that's how they saw this case. Justice Souter, for example, said that measuring heat emissions to him seemed more like measuring sound waves that, you know, that you might detect with a wire tap. As the court has long ruled if you're going to detect something with a wire tap, you have got to first get a warrant. GWEN IFILL: The court also has to deal with this notion that technology issues are going to become more and more of a factor in privacy cases. Did that come up at all in the discussion? JAN CRAWFORD GREENBURG: Yes. And Mr. Kyllo's attorney argued for this really broad rule. He asked the Court to basically use this case to limit the government's use of new technologies, at least this trying to detect what's going on inside your house. He said the police should not be able to use technology to detect what's going on inside a home if they couldn't see it with their unaided eye or other senses. The Justices did not seem to want to go that far today, not in this case. They don't have to go that far. Frankly, several -- Justice O'Connor, for example, suggested that that rule is too broad because that could invalidate the flashlights, the, you know, I mean some of the other things... the drug- sniffing dogs, I mean some of the other things they've allowed. GWEN IFILL: We'll be watching this. Jan Crawford Greenburg, thank you very much. JAN CRAWFORD GREENBURG: Thank you.