HIGH-TECH SPYING NEEDS WARRANT, COURT SAYS

WASHINGTON -- Police must get warrants before using devices that
search through walls for criminal activity, the Supreme Court ruled
Monday in a decision that bolstered protections against high-tech
monitoring of Americans' homes.

The 5-4 decision, in a lineup of justices that shattered the normal
ideological split, struck down the use without a warrant of a
heat-sensing device that led to marijuana charges against an Oregon
man.

Conservative Justice Antonin Scalia wrote for the majority that
police conducted an illegal search from outside the man's home.
Liberal Justice John Paul Stevens backed the officers in a dissent.

The two jabbed at each other throughout their respective opinions,
with Stevens -- adopting the conservatives' typical stance --
accusing Scalia of failing "to heed the tried and true counsel of
judicial restraint." Scalia called Stevens' conclusion that police
acted constitutionally an "extraordinary assertion."

"It's authentically a case of role reversal," said University of
Virginia law professor A.E. Dick Howard. "One doesn't think of Scalia
as anything but a law and order judge. And you don't call Stevens the
wildcard on the court for nothing."

The ruling reversed a lower court decision that said federal
officers' use of the heat-sensing device was not a search of Danny
Lee Kyllo's home -- and therefore a warrant was not needed.

Scalia wrote that the court could not cast away the Florence, Ore.,
man's Fourth Amendment protections against illegal searches to allow
police to use "sense-enhancing technology."

Any evidence obtained from the interior of someone's home, which
could not have been gathered legally by a physical intrusion,
constitutes a search, he wrote. That's especially true, he said, when
the technology is not in general public use.

"This assures preservation of that degree of privacy against
government that existed when the Fourth Amendment was adopted,"
Scalia concluded.

"Reversing that approach would leave the homeowner at the mercy of
advancing technology -- including imaging technology that could
discern all human activity in the home."

The ruling sent the case back to lower courts to determine whether
police have enough other legal grounds to support the search warrant
that was eventually served on Kyllo.

Conservative Justice Clarence Thomas joined the majority, as did more
liberal Justices David H. Souter, Ruth Bader Ginsburg and Stephen
Breyer.

Stevens was joined by conservative Chief Justice William H.
Rehnquist, and swing-vote Justices Sandra Day O'Connor and Anthony M.
Kennedy.

Kyllo was arrested in January 1992 and charged with growing marijuana
at his home. Police had trained a thermal imaging device on his home
and found signs of high-intensity lights. Using those images,
electricity records and an informant's tip, police got a warrant and
searched Kyllo's home.


Newshawk: John Smith
Pubdate: Tue, 12 Jun 2001
Source: Herald, The (WA)
Copyright: 2001 The Daily Herald Co.
Contact: letters@heraldnet.com
Website: http://www.heraldnet.com/
Details: http://www.mapinc.org/media/190
Author: Larry Margasak, Associated Press