WASHINGTON (AP) - Police violate the Constitution if they use a
heat-sensing device to peer inside a home without a search warrant, the
Supreme Court ruled Monday.
An unusual lineup of five justices voted
to bolster the Fourth Amendment's protection against unreasonable searches
and threw out an Oregon man's conviction for growing marijuana.
Monday's ruling reversed a lower court decision that said officers' use
of a heat-sensing device was not a search of Danny Lee Kyllo's home and
therefore they did not need a search warrant.
In an opinion written
by Justice Antonin Scalia, by many measures the most conservative member of
the court, the majority found that the heat detector allowed police to see
things they otherwise could not.
``Where, as here, the government uses a
device that is not in general public use to explore details of the home that
would previously have been unknowable without physical intrusion, the
surveillance is a 'search' and is presumptively unreasonable without a
warrant,'' Scalia wrote.
While the court has previously approved some
warrantless searches, this one did not meet tests the court has previously
set, Scalia wrote.
The decision means the information police gathered
with the thermal device - namely a suspicious pattern of hot spots on the
home's exterior walls - cannot be used against Kyllo.
The court sent
the case back to lower courts to determine whether police have enough other
basis to support the search warrant that was eventually served on Kyllo, and
thus whether any of the evidence inside his home can be used against him.
Justices Clarence Thomas, David H. Souter, Ruth Bader Ginsburg and
Stephen Breyer joined the majority.
Justice John Paul Stevens wrote
a dissenting opinion joined by Chief Justice William H. Rehnquist, and
Justices Sandra Day O'Connor and Anthony M. Kennedy.
At issue was
how modern police technology fits into the court's long line of decisions on
what should be considered a search requiring a court warrant.
Last year,
the Supreme Court ruled that police must get bus passengers' consent or a
search warrant before squeezing their luggage to see if drugs might be
inside. The court also requires a warrant to put a ``bug'' in someone's home
or in a telephone booth.
But the justices have said police do not need a
warrant to go through someone's garbage left on the curb, fly over a
backyard to see what is on the ground, or put a beeper on a car to make it
easier to follow.
Kyllo was arrested in January 1992 and charged with
growing marijuana at his home in Florence, Ore.
Police had been
investigating his neighbor, but they focused on him after they trained a
thermal imaging device on his home and saw signs of high-intensity lights.
Using those images, electricity records and an informant's tip, police got a
warrant and searched Kyllo's home, finding more than 100 marijuana plants.
Kyllo contended the marijuana plants could not be used as evidence
against him because the police did not have a search warrant when they used
the heat-sensing device. A judge ruled against him, and Kyllo pleaded guilty
on condition he could appeal the search issue.
The 9th U.S. Circuit
Court of Appeals upheld the use of the device, saying it should not be
considered a search.
During arguments at the Supreme Court in February,
Kyllo's lawyer told the justices that people should feel free to let down
their guard at home without fear of the government unreasonably looking over
their shoulder.
The Justice Department contended the heat-sensing device
did not intrude on Kyllo's home but instead passively detected the heat that
escaped from it, and the court's dissenters apparently agreed.
Police gathered only information available on the outside walls, and
used ``a fairly primitive'' device to do so, Stevens wrote.
Using
the Thermovision device ``did not invade any constitutionally protected
interest in privacy,'' Stevens wrote.
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