Devices used to detect drug-growing rooms are seen as unconstitutional by
some, helpful and fair by police

The Medina Drug Task Force got a tip: Marijuana was being grown in the
basement of a home in Litchfield Township. So last March investigators went
out to the three-bedroom ranch house on Jones Road and aimed a thermal
imager at it.

After the machine picked up unusually high concentrations of heat coming
from the south side of the house, police got a search warrant. Inside they
found 16 plants in various stages of growth, lights, fertilizer, seeds, an
irrigation system, other equipment used to grow marijuana and three small
bags of the drug.

"This was built as a grow room, completely sealed off, wired, plumbed and
lighted for that purpose,'' said Fred Wolk, agent-in-charge of the Medina
County Drug Task Force.

Thermal imagers are a tool police agencies can use in drug investigations.
But is the use of such devices -- without a search warrant -- an invasion
of a homeowner's privacy?

That's an issue the U.S. Supreme Court is considering.

Last month the court heard arguments in the case of an Oregon man who was
arrested in 1992 for growing marijuana in his home.

In that case, during the course of an investigation, police pointed a
thermal imager at the man's house and detected high amounts of heat coming
from his side wall and roof. After obtaining a search warrant, police
arrested the man, who pleaded guilty on the condition he could appeal the
legality of the search.

After an initial ruling in the homeowner's favor, the 9th U.S. Circuit
Court of Appeals upheld the use of the thermal-imaging device, saying that
it did not constitute an illegal search. The case then went to the Supreme

In the Akron-Canton area, police agencies say they use thermal imagers
toward the tail end of investigations and not to randomly check heat
sources coming from homes.

"We don't go out and use a thermal imager unless we have sufficient
information to initiate an investigation,'' said Wolk, whose agency uses
the devices 10 to 15 times a year.

Dr. Gerald Holst, a physicist and expert on thermal imaging who lives in
Winter Park, Fla., said thermal imagers are cameras that can detect the
infrared radiation associated with heat. These devices generally cost
$15,000 to $20,000 and are available commercially.

Besides being used in drug investigations, the devices are also used to
look for fugitives who are trying to escape at night or who may be hidden
in buildings.

New models "are becoming smaller, lighter and cheaper, and easier to use,''
Holst said. ". . . I think if they could, every police department would
have one.''

Akron police Capt. Mike Madden, head of the narcotics unit, said the Police
Department has one thermal imager and it is not used very often. But, he
said, the imager has been used to detect heat in buildings where illegal
activity is suspected.

"This is one tool toward building probable cause,'' Madden said.

Prior to the Supreme Court case, ``we tended not to look at this as a
privacy issue,'' he said. ``But thats what the court is going to decide.''

Keith Thornton, head of the Summit County Drug Task Force, does not see the
use of the camera as an invasion of privacy.

"How is this different from surveillance -- watching the comings and goings
from a house?'' he asked.

Concerns About Use

But Jack Sahl, a University of Akron law professor, disagrees.

"For me,'' he said, "the real issue is: Does someone have a reasonable
expectation of privacy in their home whether it is generating heat or not?''

Because of technological advancements, Sahl is concerned about the
government's being able to pick up more specific images other than just
levels of heat from inside a home.

Thermal imagers, he said, can "pierce the sanctity of the home.''

Marc Rotenberg, executive director of the Electronic Privacy Information
Center in Washington, D.C., said his organization believes the warrantless
use of thermal imaging is unconstitutional.

"It is simply not reasonable,'' he said, "to expect that people inside
their home should have to take extraordinary measures to control heat
emissions that could be detected by surveillance devices outside the home.''

The case being decided touches the "critical question of whether law
protects privacy as technology evolves,'' he said. "Our view is law should
protect privacy. It cant be the case just because technology makes
intrusion possible, it therefore becomes permissible.''

'Not A Problem'

Eric Tarbox, an assistant attorney general with the Ohio Organized Crime
Investigations Commission, said the technology used in thermal imagers was
not developed specifically for law enforcement purposes.

"In our view, there is not a problem because it is a passive device,''
Tarbox said. Law enforcement officers who use the devices "are not driving
down streets or flying over neighborhoods looking for hot spots.''

Stark County Sheriff's Capt. Mike Firth agrees with Tarbox.

Thermal imagers are not used "as a random tool to see how many houses we
can pick out of the sky that are growing dope,'' Firth said. Police do
routine investigations and then "use the thermal imaging device to put the
icing on the cake.''

Staff writer Stephanie Warsmith and correspondent Gina Mace contributed to
this report.

Newshawk: Sledhead,
Pubdate: Mon, 05 Mar 2001
Source: Beacon Journal, The (OH)
Copyright: 2001 The Beacon Journal Publishing Co.
Address: 44 E. Exchange Street, P.O. Box 640, Akron OH 44328
Fax: (330) 996-3520
Author: Jim Carney
Note: Staff writer Stephanie Warsmith and correspondent Gina Mace
contributed to this report.