However, there have been legitimate concerns about the use of this technology by law enforcement in some counties to monitor people in their homes.
Recently, the Georgia Supreme Court held that Georgia law doesn’t allow warrants for police to use special heat-detecting equipment to spy on illegal activity in people’s homes. This heat-detecting equipment can be used to detect heat loss patterns, including “hot spots” that are consistent with the use of high-intensity lights to grow marijuana indoors.
The decision that recently addressed this issue was Brundige v. State. Ironically, the decision was actually a loss for the defendant on appeal. The defendant, accused of illegally growing marijuana inside his garage, argued that he was the victim of an illegal search and seizure because the police obtained and executed a warrant at his home that allowed a search with electronic thermal detection. Since state law only authorizes a search warrant only for “tangible evidence,” not heat evidence, the defendant argued that his 4th Amendment rights had been violated.
The Court held that Brundige was right that the Georgia search warrant statute doesn’t permit warrants for thermal imaging. Heat loss is not tangible evidence, Justice Hines explained. “Giving the word ‘tangible’ full effect, it appears that the General Assembly intended ‘tangible evidence’ to mean evidence that is essentially an object with material form that could be touched by a person.”
However, the Court found that even without evidence from a thermal imaging device, the State had sufficient probable cause to get a warrant to search the house for marijuana based on other evidence that had been legally gathered.
I noticed that Justice Hines made the point that the Legislature has the power to authorize warrants to capture heat loss. However, I am still not convinced that a Georgia statute specifically defining “tangible evidence” to include heat loss and thus authorizing such a search would pass a constitutional test.
Additionally, there does not seem to be a real need to use this type of technology in enforcing our drug laws. I have handled hundreds of drug cases where an officer has obtained solid and lawful search warrant with a detailed affidavit to support the warrant. Examples of the types of information that can be lawfully used to obtain a search warrant include, but are not limited to, anonymous tips from concerned citizens, controlled purchases by law enforcement and/or confidential informants, surveillance of homes from lawful areas (such as public roads, parking lots etc.), and legal traffic stops on vehicles coming to and from a home.
On the other hand, I do understand that law enforcement legitimately feels the need to use all of the resources at their disposal to enforce the law. Thermal imaging devices seem easier and safer to use as opposed to setting up controlled purchases of drugs using a human being. I believe that officer and citizen safety is a paramount concern.
But, I am also a protector of the Constitution by the oath that I took as an attorney in this state. In that role, I do not believe that the use of thermal imaging in crime investigations would be constitutional under the vast majority of circumstances.
Remember, the Constitution can only protect the all of us when it also protects those accused of wrongdoing as well.
Swindle, a Carrollton attorney, writes a weekly column in the Times-Georgian on legal issues.