In Brundige v. State, the Georgia Supreme Court has held that Georgia law prohibits police officers from using thermal imaging technology to obtain evidence of suspected marijuana growing operations.
With the use of such equipment, the police had been able to detect heat loss patterns emanating from a residence without having to physically cross the threshold of the building. The equipment can detect “hot spots” that could be consistent with the use of high-intensity lamps used to grow marijuana indoors.
In 2009, the University of Georgia police department discovered evidence they believed indicated that James Brundige was conducting an illegal marijuana growing operation in his Athens, Georgia home. Officers found an amount of marijuana consistent with such an operation in a trash can next to Brundige’s driveway. Based on this evidence, the UGA police applied for a warrant to search the residence using a thermal imaging device. After obtaining the warrant, UGA police proceeded to scan Brundige’s home and uncovered the existence of “hot spots” in the garage. Officers used this information to obtain a second warrant to physically search Brundige’s entire home for marijuana and other items. During this search, officers found marijuana, high-intensity plant-growing lamps, as well as other items.
Brundige filed a motion to suppress arguing that Georgia law (O.C.G.A. § 17-5-21) only authorizes a search warrant for the seizure of tangible evidence which would not include evidence of the detection of heat coming from a residence. The Court agreed with Brundige that the term tangible refers to an object with such a material form that it can be touched. Thus, the Court concluded that Georgia law does not authorize the issuance of search warrants to obtain evidence of heat detection gathered by the use of thermal imaging devices.
Despite this statutory victory, Brundige was ultimately unsuccessful on his appeal. Although the Court ruled that it was improper for the police to conduct its thermal imaging scan of Brundige’s residence, the Court pointed out that law enforcement had gathered sufficient evidence from the legal search of the trash can outside Brundige’s house to establish probable cause to search the home for marijuana.
This decision undoubtedly prohibits the use of thermal imaging devices in private places for the time being. As the Court indicated in its decision, however, the legislature could cure the problem by amending O.C.G.A. § 17-5-21 to include the issuance of search warrants for not only tangible evidence but intangible evidence as well. Georgia criminal defense lawyers will be watching closely to see if this does, in fact, happen during the next legislative session.
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