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Breaking Legal Developments

06-11-2001

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Maryland Court Affirms that Intended Arson and Reckless Endangerment Are Separate Offenses for Sentencing
  2. U.S. Supreme Court Finds Use of Thermal Imager Without Warrant Improper


(1) MARYLAND COURT AFFIRMS THAT INTENDED ARSON AND RECKLESS ENDANGERMENT ARE SEPARATE OFFENSES FOR SENTENCING

In Holbrook v. State, (PDF Format) No. 88, June 5, 2001, the Maryland Court of Appeals reviewed the defendant's arson and reckless endangerment convictions. The defendant had argued the court erred at his sentencing in not merging the convictions.

The court rejected the defendant's argument that fundamental fairness required the two offenses to have merged into the arson conviction. He had received additional jail time for his reckless endangerment convictions. The court held the legislature created separate and distinct offenses and the sentences were appropriate.


(2) U.S. SUPREME COURT FINDS USE OF THERMAL IMAGER WITHOUT WARRANT IMPROPER

In Kyllo v. U.S., (PDF Format) No. 99-8508, the United States Supreme Court reviewed the use of thermal imaging devices. Agents had used the device to scan a triplex to see if marijuana was being grown based on the amount of heat emanating from the house. The scan showed that Kyllo's garage roof and side wall were hot and substantially warmer than neighboring units. A magistrate issued a warrant based in part on this information. Agents found marijuana when the warrant was executed.

The district court refused to suppress the evidence and the Ninth Circuit Court of Appeals affirmed. The U.S. Supreme Court disagreed finding a device that is not in general public use to explore details of a private home that previously had been unknowable without physical intrusion required a warrant or was presumptively unreasonable.

The Court rejected the Government's argument that the imaging could be upheld because it detected only heat radiating from the home's external surface. The Court had previously rejected such an argument where the eavesdropping device in question picked up only sound waves that reached the exterior of the phone booth to which it was attached. Katz v. U.S., 389 U.S. 347 (1967) . Reversing that approach would leave the homeowner at the mercy of advancing technology including imaging technology that could discern all human activity in a home. The case was remanded to the district court to determine whether, without the evidence it provided, the search warrant was supported by probable cause.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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