Warrant Needed to Scan Home with Imager, Court Rules

April 08, 1998 - San Diego Union Tribune - letters@uniontrib.com

SAN FRANCISCO -- Federal agents need a warrant before scanning a home with a thermal imager, which is supposed to detect heat from indoor drug labs but also may be able to peek into bedrooms, the federal appeals court for nine Western states ruled yesterday.

As technology improves, heat-sensitive scanners are being developed "which are increasingly able to reveal the intimacies that we have heretofore trusted take place in private," said the 9th U.S. Circuit Court of Appeals in a case from coastal Oregon.

The court noted that an advertising brochure for the device used in this case touted its ability to distinguish between heat levels emitted by an animal and a person from 1,500 feet away in complete darkness. A government witness said an imager could detect people through curtains near a window. A defense lawyer said the device could pick up general outlines of objects through walls.

Other federal appeals courts, however, have ruled that thermal imagers merely measure the heat given off by the outside of a home and can be used by police without a warrant. Some state courts have agreed, but courts in California, Washington and Montana have required search warrants, said Kenneth Lerner, lawyer for defendant Danny Lee Kyllo.

With the courts divided, "I think the Supreme Court has got to wrestle with how you evaluate technology that can intrude into people's homes," Lerner said.

Government lawyers were unavailable for comment.

Kyllo, of Florence, Ore., pleaded guilty in 1992 to manufacturing marijuana after a federal judge upheld a search of his home, based on a warrant that was obtained after officers used a thermal imager to scan the home. He was sentenced to five years and three months in prison but has remained free during his appeal, Lerner said.

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