A little before midnight on August 21, 1990, acting on an anonymous tip, two law-enforcement officers went to the home of Robert Alan Young in Edmonds, Washington. They never went inside. They stayed on the sidewalk. After an hour they were certain that Mr. Young was growing marijuana.
The officers relied upon an infrared thermal detection device. The cultivation of in-house marijuana demands a great deal of heat. The detectives found the basement much warmer than the upstairs. One chimney vent was hot, the other cool. No neighboring homes showed such an odd pattern.
The detectives obtained a search warrant, and sure enough, they found a marijuana-growing operation. The trial court admitted the infrared evidence, but on February 10, 1994, the Supreme Court of Washington said no: The evidence should have been excluded. The officers had violated Mr. Young's Fourth Amendment rights. Said the court:
''With this device the officer was able to, in effect, 'see through the walls' of the home. The device goes well beyond an enhancement of natural senses. In addition, the nighttime infrared surveillance enabled the officers to conduct their surveillance without Mr. Young's knowledge. The infrared device thus represents a particularly intrusive means of observation . . . ''
Now let us leap halfway across the continent. It is 1:20 a.m., July 25, 1991, in St. Louis. Police officers are in a helicopter hovering over the home of Joseph Pinson on Knox Street. They have mounted a Forward Looking Infrared Device (FLIR) beneath the aircraft. It detects an amazing amount of heat escaping from a skylight and the roof.
On the basis of the FLIR evidence, the officers obtain a search warrant. They find more than 100 marijuana plants under cultivation. Mr. Pinson moves to exclude the evidence. The trial judge refuses. A jury in U.S. District Court finds Mr. Pinson guilty.
He appealed, and the U.S. Court of Appeals for the 8th Circuit affirmed the conviction. What was inadmissible in Washington is admissible in Missouri. Mr. Pinson's Fourth Amendment rights had not been violated. Said the court:
''Any subjective expectation of privacy Pinson may have had in the heat radiated from his house is not one that society is prepared to recognize as 'reasonable.' The detection of the heat waste was not an intrusion into the home; no intimate details of the home were observed, and there was no intrusion upon the privacy of the individuals within.''
One more leap. It is 4 a.m., August 19, 1993. Federal officers are in a helicopter with a FLIR device, a thousand feet above a secluded rural location in Nacogdoches County in east Texas. They suspect that Rohn Marshall Ishmael is growing marijuana. The device confirms their suspicion. Six weeks later, having obtained a warrant, they make their raid and find 770 marijuana plants growing in the basement.
Mr. Ishmael moved to suppress the FLIR evidence. U.S. District Judge Robert M. Parker granted the motion. Evidence obtained through infrared surveillance may not be admitted. Said the court:
''We must take care that the war on drugs not count as one of its victims fundamental rights. The benefit to our society of safeguarding the right to privacy is such that the courts must say that there is a limit to the use of technological weapons, VTC even in the war on drugs.'' The Fourth Amendment is not violated, said Judge Parker, by ordinary photographs or by naked-eye aerial observations, but thermal images go too far. If such advanced technology is permitted, ''there is precious little left of the right to privacy.''
After all, added the judge, the venting of excessive heat is not necessarily evidence of marijuana. ''The evidence was consistent with developing a new patented strain of African violets, and innumerable other perfectly legal activities.''
Now to Waikoloa, Hawaii, 5:15 a.m., April 3, 1990. Same story. U.S. District Judge Martin Pence admitted the evidence. Infrared detection, he concluded, is not a ''search'' that violates the Constitution.
There you have it. Two courts have let the evidence in. Two courts have thrown it out. It's just as Charles Evans Hughes once remarked: We live under a Constitution, but the Constitution is what the judges say it is.
James J. Kilpatrick is a syndicated columnist.