Court Reverses Self, Says No Warrant Needed

Court Reverses Self, Says No Warrant Needed
Posted by FoM on September 09, 1999 at 21:09:53 PT
By Bob Egelko, Associated Press Writer 
Source: Sacramento Bee
SAN FRANCISCO The federal appeals court for nine Western states reversed itself Thursday and said federal agents do not need a warrant before scanning a home with a device that can detect different heat levels indoors.
The 9th U.S. Circuit Court of Appeals had ruled in April 1998 that the device, which is supposed to detect heat from indoor drug labs but may also be able to peek into bedrooms, was intrusive enough that agents should have to get a warrant by persuading a judge they were likely to find evidence of crimes.But while the government's request for a rehearing was pending, one judge on the panel retired and a replacement was appointed. The result was a 2-1 majority to allow the scan without a warrant and uphold a marijuana conviction from coastal Oregon.The opinion by Judge Michael Hawkins -- the dissenter in last year's ruling -- said the device merely analyzes waste heat emitted by a house, much like a drug-sniffing dog sensing odors that come from within."Whatever the 'Star Wars' capabilities this technology may possess in the abstract, the thermal imaging device employed here intruded into nothing," said Hawkins, joined by Judge Melvin Brunetti.Dissenting Judge John Noonan, a member of last year's majority, said a closer comparison would be a high-powered telescope that let an agent look inside a house -- a search, requiring a warrant, without an entry."The amplification of the senses by technology defeats the homeowner's expectation of privacy," he said.Defense lawyer Kenneth Lerner offered another analogy: a microphone that could pick up voices inside a home.Because the court decided the use of the device was not a "search," he said, "the courts have no role in whether the police have abused people's privacy rights."Every other federal appeals court to consider the issue has reached the same conclusion. However, state courts in Montana and Washington have required warrants, based on their state constitutions, and a California appellate court ruled in 1996 that the U.S. Constitution requires a warrant.That means California would set different standards for prosecutions in state and federal courts, Lerner said.Assistant U.S. Attorney Robert R. Thomson, the government's lawyer, did not immediately return a telephone call.Lerner's client, Danny Lee Kyllo of Florence, Ore., pleaded guilty in 1992 to manufacturing marijuana after a federal judge upheld a search of his home. The warrant was obtained after officers used a thermal imager to scan the home and detected high heat levels that they associated with marijuana growing.Kyllo, sentenced to five years and three months in prison, has remained free during his appeal.The ruling overturning his conviction last year was written by U.S. District Judge Robert Merhige of Virginia, who was temporarily assigned to the appeals court panel. Merhige retired from the bench after the ruling and was replaced on the panel by Brunetti.Merhige's ruling noted that an advertising brochure touted the imager's ability to distinguish between an animal and a person from 1,500 feet away in complete darkness, and a government witness said the device could detect people through curtains.That suggests the imager could also detect people in bed, bathtubs, kitchens and other places where their privacy was entitled to be protected, Merhige said.Hawkins disagreed Thursday, saying the scan merely picked up "hot spots" on the outside of the home "and not the detailed images of private activity that Kyllo suggests the technology could expose."The case is U.S. vs. Kyllo, 96-30333.Pubdate: September 9, 1999Copyright  The Sacramento Bee 
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Comment #3 posted by FoM on August 03, 2001 at 11:27:14 PT
Thanks Danny!
I posted your link and the articles I have here on Cannabis News! Way to Go!
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Comment #2 posted by Danny Lee Kyllo on August 03, 2001 at 11:04:41 PT:
Victory in the United States Supreme Court !!!
To who it my concern, If u want to relay the information to me I can get a hold of my attorney and see if he wants totalk with U.Anyway it sounds pretty interesting and I havea lot of interesting articles U might like to read.Leftclick on my web address until U get to my sight.
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Comment #1 posted by sholweg on March 06, 2001 at 15:17:57 PT:
Thermal imaging vs portable FM waves & the law
I just watched attorney Ken Lerner on court TV defending privacy rights in arguments he just made before the high court. I waited for him to draw the comparison between using sophisticated (and crude) technology to intercept private telephone conversations & the use of heat detecting equipment to detect what is going on in a private residence. He did not mention it on Catherine Crier's program, although he may have made such an arguement to the court. I simply wanted to point out that the US Congress passed a law in, I believe, the 104th Congress that made interception of portable telephone FM waves illegal and considered a violation of privacy rights. The Supreme Court sited the federal law a year or so later when they ruled it unlawful for a neighbor to have listened to and recorded another neighbor's conversations with an FM receiver. I have no way of contacting Mr. Lerner, buta web search pulled up your article in the newsletter. Please forward this information to Mr. Lerner if you have that ability. If anyone is interested in the case law and federal law I have those in my file. Thank you.
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