Public Defender in GA: Cops Can't Use Thermal Images of Possible Grow Lights For Search Warrants

A public defender in Georgia is hoping to have his client’s case dismissed by a Georgia Superior Court after claiming that evidence against his client was illegally obtained. James Brundgie has been charged with the manufacture of marijuana, possession with intent to distribute, and possession of a controlled substance after a judge approved a warrant to search his property after thermal imaging detected a “hot spot” in his garage. If the search warrant is upheld it will be a worrying precedent to set as police forces and other agencies will be able to justify thermal imaging of entire neighborhoods in search of similar “hot spots”.

The public defender, Benjamin Pearlman, is rightly arguing that the warrant should never have been issued as Georgia law states that a warrant may not be issued “for anything other than physical, tangible evidence,” It is hard to see exactly how a thermal scan fits into the category of physical or tangible evidence.

As Pearlman stated in his filing:

Logically, search warrants are sought by officers to enable them to search for and seize evidence which would be brought to court and introduced in the course of proving the state’s case against a defendant…Heat or heat loss, standing alone, cannot be brought to court for a jury to examine.

Andrew Napolitano wrote last week that there is already a worrying amount of surveillance and evidence-mining going on with the most asinine of justifications. Current legislation allows government agencies to share the “evidence” collected by domestic surveillance with other government agencies so long as "the recipient is reasonably perceived to have a specific, lawful governmental function" It is worrying that the definition of “evidence” is being stretched as far as the English language will allow and that the means by which it is being gathered is permitted in the first place. As Napolitano pointed out, this is the first time since the Civil War that military personnel are being deployed within the United States to spy on citizens, and the use of similar technologies by police authorities is hardly any less worrying. 

The unfortunate reality is that largely beneficial breakthroughs in technology have granted the government and police forces an arsenal of irresistible toys that make intrusion a lot easier and more disguised. Let’s hope that the Georgia Superior Court rules in favor of James Brundgie. Not only is it questionable whether thermal “hot spots” fit the criterion for evidence, but allowing the use of thermal scans is an intrusion too far that could soon become the norm.

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  • some guy||

    We need to have federal, state and local registration for all indoor gardening activities. Failure to register will result in a fine, jail time and having your dog shot during a no-knock raid.

  • Hyperion||

    Actually, all gardening, inside or outside, by private citizens should be banned. How can government agencies determine the nutritional value of that tomato that you are growing by yourself? Ban all personal gardening now!, it's for our own good!

  • Brendan||

    Yep, how else can they determine the salt, fat, or fiber content of homegrown vegetables?

    First it was homegrown vegetables, then homeschooled kids. I've even heard of people homebrewing alcohol and people engaging in homemaking. Where does it end?

  • some guy||

    And heaven forbid you should try to share your home grown veggies with your neighbors. They might assume the food was safe based on their trust of you, rather than their trust of the state. We simply can't have that!

  • Brendan||

    Possession of bootleg vegetables with intent to distribute.

  • Hyperion||

    Just be patient. There's only so much that the Bloomburg and Nutter nanny army can do in one day. Just be thankful that we have such forward thinking saints among us.

  • o3||

    this is irrevelant since electric usage is a dead give-away. in fact illegal grow houses often bypass the meter so neighborhood usage is then checked in order to start narrowing-down street by street.

  • jasno||

    No, that's not true. There are all kinds of legitimate activities that use as much power as growing plants indoors. Also, one could grow plants other than marijuana indoors.

  • ||

    How is a thermal scan not "physical"? It's photons, just like visible light.

  • Brett L||

    Well, for one thing, the police officer can't observe it before recording it, which is how warrantless video evidence is justified. Also, please note, cellular packets are also just photons, yet you need a warrant to intercept them... unless you're the NSA or invoke the magic word "terrorism".

  • ||

    Sure he can- just like he can see something in the visible light range. Most thermal scanners are real-time, recording is optional. With cell packets, it's not the interception, it's the decoding. But expect that this is the next part of the camel under the tent.

    To be clear, I hate this sort of gestapo spying, but this is a shitty argument against it.

  • niobiumstudio||

    A better argument would be considering it the same as a police dog's scent detection. While the scent is simply molecules floating through the air, the police need a warrant to detect them on your property. They should need a warrant to collect thermal data on your property.

  • Bryan C||

    Be careful there. Infrared imaging is no more exotic or intrusive than any other kind of photography. If you're going to allow telephoto lenses or binoculars then there's no rational distinction which can be used to exclude IR.

    I think this sort of thing is a stupid waste of time, but I don't think the answer is to forbid cops (and, by extension, the rest of us) from noticing what's in front of our eyes.

  • ||

    "I don't think the answer is to forbid cops (and, by extension, the rest of us) from noticing what's in front of our eyes."

    I do. Disagree with the "extension," as well.

  • niobiumstudio||

    I think the biggest problem with this is that the thermal scans prove NOTHING whatsoever. Having a large aquarium and aquarium equipment in the house will light it up on thermal just like a grow-op. Also, legal grow operations and legal green houses will light up the same as a pot grow-op. This is NOT probable cause whatsoever. This would be the same as waiting outside of a gardening store and getting a warrant on anyone who buys high output grow lights - which is currently not allowed...

  • ¿Ex Nihilo?||

    Be careful there. Infrared imaging is no more exotic or intrusive than any other kind of photography.

    So you don't mind if I set outside your house and take infrared pictures of your kids? Or you and your wife during intimate moments? Because it can see through walls it is distinct from telephoto lenses and binoculars.

  • ¿Ex Nihilo?||

    How is a thermal scan not "physical"? It's photons, just like visible light.

    “for anything other than physical, tangible evidence,”

    It may be physical, but not tangible. You see a hot spot but can't articulate what you are seeing beyond that. Could be tomatoes or pot, or even someone with lizards, you can't tell.

  • ||

    That's a more reasonable argument, but I think it's one that's already been lost. "Your honor, I smelled alcohol in the car, which gave me probable cause to search."

  • ¿Ex Nihilo?||

    "Your honor, I smelled alcohol in the car, which gave me probable cause to search."

    Alcohol has a distinct smell, so you could make the case that you would have probable cause. Heat does not have a distinct quality based on what it is heating. It would look the same no matter what you were heating.

  • some guy||

    Well how far can cops push this now? Is it enough for someone to "look suspicious"? Or do they have to specify exactly which actions "looked suspicious" and what crime they "looked suspicious" of?

  • ¿Ex Nihilo?||

    Good question. I would think the cops would have to be able to articulate what they were seeing that would allow them to get a warrant. Heat would not do it. Smell shouldn't either since you can't pinpoint where the odor is coming from.

  • ||

    But alcohol has many sources, like fuel. Did he smell it because you're drinking or because you're a Green? And even worse, it can't be "recorded" without a spectrometer (coming next, folks!), so it's truly a Free Pass for the cops.

  • ¿Ex Nihilo?||

    But alcohol has many sources, like fuel.

    Yes it does. It could also be coming from the passengers. But it is more reasonable (drink) to think you can smell alcohol and determine where it is coming from. From Jasno below, it looks like the cops had a warrant. They got it after going through the guy's trash.

  • niobiumstudio||

    Regardless if "thermal scans" are allowed to be collected by police really doesn't matter and isn't all that scary - the scary part is it's use in justification for a warrant and counting as "Probable Cause". A "Hot Spot" on thermal imaging can be literally ANYTHING.

    This should fall under the same category as a police dog sniffing. They are not allowed to sniff your property without a warrant with a police dog so they should not be allowed to collect thermal data on your property all the same. While a police dog's nose can ONLY mean drugs are present or were present at some time in the general vicinity, a hot spot determines absolutely nothing.

    Using thermal imaging to determine probable cause for a pot growing operation would be akin to monitoring the amount of bandwidth a person is using to get probable cause for copyright infringement. The two things (heat and grow operation) are NOT mutually exclusive.

  • Hyperion||

    A "Hot Spot" on thermal imaging can be literally ANYTHING.

    Yeah, I guess everyone should be sure before having sex with their partner that might generate a lot of body heat, that they hide the dog first.

  • some guy||

    It is worrying that the definition of “evidence” is being stretched as far as the English language will allow and that the means by which it is being gathered is permitted in the first place.

    "Well, your honor, he's a human being between the ages of 4 and dead. Given the number of laws we have in this country/state/county/city it is reasonable to think that he must be in violation of at least one of them."

    "Warrant granted. Next!"

  • T||

    Didn't SCOTUS already cover this issue?

  • Abdul||

    States can grant more freedoms in their state constitutions than is guaranteed by the federal constitution, they just can't grant less.

  • RBS||

    That is true. Explain how allowing this type of surveillance is expanding freedom.

  • niobiumstudio||

    They certainly can't if the SCOTUS rules on 4th Amendment grounds...State laws are NOT allowed to violate the constitution...

  • jasno||

    A commenter on the linked article, 'realitycheck09', clarifies with the following comment:

    As is often the case, this article is poorly written and does not explain the issue and how this case is different from Kyllo. In Kyllo, the Supreme Court said that using the imaging technology was a search and thus a warrant was required.

    In this case, an officer found marijuana in a trash can near the house (don't ask me how) and got a WARRANT to use the imaging technology. Once it showed a hotspot consistent with a grow house, the officer got a SECOND WARRANT to search the home for marijuana.

    So, I think that clears up why this search was actually okay because the officer had already obtained a warrant for the use of the imaging technology.

    I seem to remember trash being private property as well, but maybe that doesn't apply to Georgia?

  • T||

    No, once you put the trash out for collection, it's fair game for anybody. Now, near the house might be problematic depending on how trash pickup works there.

  • BOBSAYSO||

    In 1993,I had 3 teenage boys who had many friends each. There was a constant flow of traffic in and out of my house. Because I came of age in the `70's I was not naive. I knew what my teenage boys were up to.
    Their mother and I to keep an eye on what was going on at my house pretty-much 24-7. I searched rooms regularly. I had a good repore with my boys and they trusted what I had to say. When I said no dealing drugs from this house, I felt I could depend on them to do as I asked. My constant vigilance seemed to confirm this for me.
    After trying unsuccessfully several times to make a controlled buy at my house, the NARCS decided to confiscate my garbage. In the affidavit filed with the request for a search warrant the NARCS stated that after confiscating my garbage for a month they found a quantity of stems and seeds in my garbage - " a quantity of stems and seeds" never specifying total weight. The stems and seeds in the garbage - were mine.
    I spent $4000 challenging the warrant and after 3 years I won. In order to get a search warrant the officer filing the affidavit must swear under oath that a felony was committed on the property. A quantity of stems and seeds without felony weight is not a knowable felony.
    BTW - the only drugs found in my house was in my possession. 6.4 grams of weed. I knew I could trust my son's. I never suspected that NARCS were so hard-up for a bust that they would go through garbage literally full of dog and cat shi(f)t

  • Abdul||

    Georgia law states that a warrant may not be issued “for anything other than physical, tangible evidence,”

    That seems like an odd or outdated law that could lead to weird situations.

    While I don't really care much about a pot-grower, what if a person were accused of stealing radioactive material from a radiology lab, the police couldn't seek a warrant for radioactive signature?

    Could you argue that there is no "tangibility" to a digital image of child porn, because it's just a mass of electrons?

  • Brett L||

    Well, if they had some physical or tangible reason for suspecting a certain person of stealing a radio-isotope, like a fingerprint, that's one thing. Scanning neighborhoods seems like just as bad an idea here as with thermal imaging. Tangible evidence in your hypothetical could be proof of employment at said lab coupled with proof of person not showing up afterwards plus sworn testimony of him ranting about building a dirty bomb.

  • some guy||

    ...the police couldn't seek a warrant for radioactive signature?

    Gamma rays: Not OK.
    Alphas and betas: Yes OK.

  • Brett L||

    So you don't buy the wave/particle duality, huh?

  • some guy||

    Sure I do. But gammas have no rest mass, so it's hard to see them as ever being "tangible".

  • ||

    ESPECIALLY alphas: they're challenging the cops' authority, and they can't have that.

  • ||

    Did you just fucking go right to "CHILD MOLESTERZ"? Really? How unbelievably pathetic.

  • Abdul||

    I started with WMD and tapered off to child molestrz. Or didn't you notice because some pervy uncle touched you in your reading comprehension?

  • Tulpa the White||

    A radioactive signature is not generated by legal activity.

  • some guy||

    Hey. Maybe collecting smoke detectors is my hobby or something. No harm in a hobby...

  • Sudden||

    Euro Cup Non-Spoiler Update

    Sweden v Ukraine has great pace of play. Much more entertaining than the old guard England/France matchup.

  • robc||

    Thanks for non-spoilering, as I wont be watching that one until tomorrow morning.

    England-France was amazing unaggressive. Did they forget they hated each other?

  • Sudden||

    England France was the worst sleeper in the tourney so far, but Sweden and Ukraine are making the group look respectable with their play. Seriously one of the best matches I'e watched in a while in terms of nothing other than the energy and urgency that the two clubs are bringing into it.

  • Sudden||

    Absolutely epic match.

  • R C Dean||

    It is hard to see exactly how a thermal scan fits into the category of physical or tangible evidence.

    Easy peasy. The cop ran off a hardcopy image. As hardcopy, it is physical and tangible.

    Query: Isn't "physical, tangible" redundant?

    In all seriousness, I am having a really hard time with this statute. I imagine a cop's eyewitness report that he saw a whole heap of pot plants would get a warrant, but what is "physical, tangible" about that? Or how about a phone call that a neighbor just saw someone shoot their husband?

  • some guy||

    Query: Isn't "physical, tangible" redundant?

    I think that's the crux of many other arguments here. Photons are physical, but not tangible. Beer cans are both.

  • ¿Ex Nihilo?||

    I read tangible as "able to definitively describe what you are seeing."

    As with most laws, this one is written as shoddy as possible.

  • ¿Ex Nihilo?||

    *shoddily*

    There ought to be a law.

  • some guy||

    Dictionary.com says:

    tan·gi·ble   /ˈtændʒəbəl/ Show Spelled[tan-juh-buhl] Show IPA
    adjective
    1. capable of being touched; discernible by the touch; material or substantial.
    2. real or actual, rather than imaginary or visionary: the tangible benefits of sunshine.
    3. definite; not vague or elusive: no tangible grounds for suspicion.
    4. (of an asset) having actual physical existence, as real estate or chattels, and therefore capable of being assigned a value in monetary terms.

    So, I guess you can see the photons as an extension of whatever emitted them. If a beer can in your backseat emitted the photons, then it is valid evidence. If your pot garden emitted the photons, then it is valid evidence. Even if the pot farm can't be resolved in the imagery, the actual farm itself can be touched...

  • Hyperion||

    What about the uncertainty principle? Maybe the fuzz created the lights and weeds at a quantum subatomic level just by their observation.

  • ¿Ex Nihilo?||

    What about the uncertainty principle?

    So you are saying it's pot and it may be there, or it's there and it may be pot.

  • Tulpa the White||

    In that case atoms aren't tangible either.

  • ||

    Only if you can see them- and that means, you guessed it, photons.

    BTW, they are indeed tangible. They have energy, can exert force, and can collide with other particles. Can't get more tangible than that unless you can find a legal definition of "tangible" limited to fermions.

  • Pro Libertate||

    Schrödinger's Law: All citizens are in a simultaneous state of guilt and innocence. Only when a cop observes a citizen does his state of guilt become apparent.

  • ¿Ex Nihilo?||

    Bravo PL Bravo.

  • Pro Libertate||

    It's the superimposition principle.

  • Pro Libertate||

    Or, perhaps better stated, the superinquisition principle.

  • Hyperion||

    Obviously, you crazy libertarian types have something to hide or you wouldn't be worried about this.

    The best solution is just to install state mandated surveillance cameras in all rooms and outdoor areas of every home, to be monitored by newly hired public employees of a newly created government agency. It will create millions of new jobs and insure that you crazy radical extremist types don't hurt yourself with things that are not state approved.

  • some guy||

    Hyperion, you'll never sell this idea that way. Say it like this:

    "It will create millions of new jobs and insure that you crazy radical extremist types don't hurt yourself the children with things that are not state approved."

  • Hyperion||

    Thanks. With that amendment, I can now email this proposal off to Chuckie Shumer and Lindsey Graham.

  • John||

    This post is very confusing. Did they get the warrant to do the infrared scan or did they use evidence obtained from the scan to get the warrant?

  • niobiumstudio||

    Used it to justify probable cause.

  • ||

    The scan was evidence used to secure a search warrant, which then resulted in the discovery of the growhouse.

  • John||

    Then how was the warrant a search for evidence that wasn't tangible? They were searching for pot plants based on the probable cause to believe they were there from the scan.

    When I have time later I will have to read the case. This post was terribly unclear.

  • ||

    I think the point was that the scan was not tangible evidence of a growhouse. A heat spike could be caused by many things.

  • Tulpa the White||

    The warrant is supposed to be based on tangible evidence.

    I personally think that argument against the warrant is weak. Seems to me that the IR scan was a search in itself.

  • Hyperion||

    Details, details. The important part is that they got the bad guys! That marijuana could have killed millions of the childins had it made it to the street and the playgrounds. They don't call it dope for nothing you know! Geez...

  • some guy||

    I think they used the scan to get the warrant. Basically they assumed the IR scan was the same as a visible interrogation and didn't require a warrant. In the scan they saw a hotspot, which was evidence of indoor gardening. They presented that evidence in order to get a warrant to search and seize.

    All kidding aside, it's hard to see how we can let cops use their eyes to gather evidence in the visible spectrum without a warrant, but prevent them from using cameras to gather evidence in the IR without a warrant...

  • ||

    That's sort of like saying we allow TSA agents to search us with their eyes, so why not pornoscannners?

  • some guy||

    Yeah, it is like that. I'm not saying I like it, though. Airlines and airports should be in charge of their own security. TSA shouldn't even exist...

  • Tulpa the White||

    In the scan they saw a hotspot, which was evidence of indoor gardening.

    I wasn't aware indoor gardening was illegal. Plus a hotspot could be caused by a gazillion other legal activities.

    it's hard to see how we can let cops use their eyes to gather evidence in the visible spectrum without a warrant, but prevent them from using cameras to gather evidence in the IR without a warrant...

    No it isn't. The expectation of privacy is tuned to human capabilities, not those of machines.

    If we allow IR scans to be done without a warrant, there's no limit to the stuff they could spy on, particularly considering humans are essentially IR light bulbs.

  • some guy||

    I'm on your side, Tulpa. I was just giving my interpretation of the case mentioned in the article.

    The expectation of privacy is tuned to human capabilities

    Does this mean cops are not allowed to point sound enhancing equipment, binoculars or telecopes at your house without a warrant? What about flash lights? Flash lights are certainly more active than IR cameras. If they can use a flash light, why not a spectrometer, etc.

    I think we need laws they specifically lay out the technology cops can use without a warrant. Anything not on the list is illegal. There's no other way to draw a definitive line, given the way technology advances.

  • Tulpa the White||

    Does this mean cops are not allowed to point sound enhancing equipment, binoculars or telecopes at your house without a warrant?

    I'm not allowed to look into someone's windows with binoculars as a 'civilian' either, so of course cops shouldn't be allowed to do that. Looking at the exterior of the house? MAYBE. Depends on the reason they need to use binoculars. If it's a hostage stand-off, fine. If it's because they don't want them to know they're being watched, no.

    Flashlights aren't sensory equipment so it's not really the same thing. I'm concerned with the nature of the phenomena that can be seen, not with the lighting.

  • Xenocles||

    You just need to invest in some IR blocking walls. Of course, those will become probable cause the second they hit the market.

  • jasno||

    Cops found pot in the trash, which they used to get a warrant for the scan, which they used to get a warrant for entry.

  • Xenocles||

    How is this story anything more than "Defense lawyer submits a motion that would benefit his client?" Defense lawyers say all kinds of things. Wake me up when the judge goes along with it.

  • 4tehsnowflakes||

    State appeals court decision here.

    The Georgia Supreme Court (not the superior court) is considering it now.

    Following Kyllo (thermal imaging on residences requires search warrant), police here got a warrant to use thermal imaging based on finding some of the devil’s own herb in the defendant’s father’s trash bin, which had been placed at the curb for pickup. The police then applied for and got a second warrant authorizing the search of the premises.

  • 4tehsnowflakes||

    Supreme Court says the police may search your garbage without a warrant unless you take special precautions to show a reasonable expectation of privacy in its contents, so the search of the garbage can is a loser for the defendant even with the local anti-homeless ordinance that prohibits people from rummaging through garbage cans. The “tangible” argument is also weak as the commenters have shown. Evidence you can touch is not the only admissible or valid evidence. Tangible means something like “specific and credible” in this context. You can maybe examine the expert who operated the equipment, but that’s about it unless it is junk science on the level with the forensic bite mark.

    Maybe a heat signature alone, without more, is not enough for a premises search warrant if that is all the police have, but in this case there was additional evidence tending to confirm the suspicions of the Man about the nature of the grow operation. Anyway, thermal imaging is not as distressing as the local sheriff’s good old boys being able to peer into your fenced backyard from above on a whim, where perhaps your teenaged daughter thinks she is sunning herself in privacy.

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