Drug Bust That Sheds Light on Search-and-Seizure Law

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Pot grower Danny Kyllo stands in front of his house in Florence, Oregon

After a winter recess spent recovering from their crawl through what Felix Frankfurter called the "political thicket," the nine Justices of the United States Supreme Court are finally back to the kind of work whose national importance is a bit more theoretical.

Like, when is a man's home his castle?

Four years ago, Danny Kyllo was growing marijuana in his Oregon home, and he got busted — he admits that. But he's not crazy about how the cops found out. An Oregon National Guard soldier, using a thermal imaging device from outside Kyollo's house, noticed unusually high levels of heat coming from inside. The soldier tipped off the cops, the cops got a warrant, and Kyolo got arrested after police found dozens of marijuana plants growing in his attic. He was using halogen lamps to grow the stuff.

"I know what I done was wrong," says Kyllo, who faces five years in prison after pleading guilty to drug charges but is reserving the right to appeal the search. "But I know what they're doing is wrong."

The case hinges on whether use of a thermal imaging device to divine what goes on inside a house constitutes a search, and thus should itself have required a warrant showing probable cause. As his lawyer, Kenneth Lerner, put it in his brief, "Since we don't permit police to break into people's homes, should we permit them to use technology to accomplish the same thing? The public justifiably expects that the walls of our homes sanctify a zone of privacy against the government, and represent physical barriers that assure our privacy," Lerner wrote in his brief.

The government's argument, curiously, is that it didn't learn anything through the thermal imaging. "Thermal imagers do not literally or figuratively penetrate the home and reveal private activities within," the U.S. Solicitor General's Office wrote in his brief. "Unlike a hypothetical sophisticated X-ray device or microphone that could perceive activity through solid walls — observations that would amount to searches — a thermal imaging device passively detects only heat gradients on exterior surfaces."

Passively, yes. But the imager, argues the plaintiff, certainly did "reveal private activities within" — use of heat lamps, which led police to get a search warrant to look for drugs in Kyllo's attic. If evidence of an abnormal heat source constitutes probable cause, so would images of Kyllo — gained through a "hypothetical sophisticated X-ray device or microphone" — lighting up a joint.

To draw a line between a thermal imager wielded by a National Guardsman and a "hypothetical sophisticated X-ray device or microphone" seems difficult. Either it gathers evidence of what goes on behind the walls or it doesn't, and the thermal imager seems to meet that test. Certainly, it doesn't look as if Kyllo would have been arrested without it.

The war on drugs, if it is to be waged on marijuana growers like Kyllo, certainly demands zeal. And the Supreme Court may well rule that a man's home is his castle only if he's installed lead panels in the walls. But this is also a court that leans strongly toward individual rights, no matter how you interpret the end of the vote-counting in Florida, and they're likely to take the constitutional right against unreasonable search and seizure pretty seriously.

But if he gets his way with the high court, Kyllo may want to try moving to someplace like Arizona — to a house with a nice big skylight.

And then keep an eye out for helicopters.