The use of thermal imaging equipment with a warrant has been in practice by police officers for more than a decade, after a ruling by the U.S. Supreme Court in Kyllo v. United States determined that it is permitted for detection of marijuana grows houses as long as a warrant has been obtained. Before this case was decided officers could use the devices indiscriminately in order to show probable cause. But, on Monday the Georgia Supreme Court ruled that state law would not allow warrants for police officers to use special heat-detection devices to spy on illegal activity in people's homes. The case of Brudige v. State resulted from a pair of police warrants that were obtained by the University of Georgia police in Athens.
An officer applied for a warrant to search James Brundige's home using an electronic thermal detection and imaging device. To get the thermal imaging warrant the officer noted that he had found marijuana in an amount which indicated a grow operation in a garbage can beside the driveway of the house. A warrant was issued to permit a scan, and subsequently "hot spots" were discovered. The officer then applied for a second warrant to enter the residence, which relied partially on the thermal scan activity readings.
When the Prosecutors charged Brundige with various drug crimes after marijuana, prescription drugs and plant-growing lights were discovered in his home, he filed a motion to suppress all evidence from both searches. This was based on the argument that the applicable state statute on warrants authorizes a search warrant only for "tangible evidence," and that heat evidence from the devices would not apply. Another argument raised was the fact that his garbage was searched unauthorized and that there was a delay in leaving a copy of the first warrant at his residence, rendering any evidence acquired inadmissible. Georgia has a statute requiring that a duplicate copy of a warrant be left at the location being searched.
The motion to suppress was denied by Superior Court Judge Steve Jones, who is now a federal judge, and the Court of Appeals panel also rejected the arguments to declare the evidence inadmissible. The State's Supreme Court did however agree to take up the tangible evidence matter and the officer's delay in leaving the warrant at the residence where the search took place. Justice P. Harris Hines wrote in his opinion for the court that Brundige was correct in that the Georgia search warrant statute does not permit warrants for thermal imaging, because heat loss is not tangible evidence. He further noted that "although the Court of Appeals noted that heat radiating from a building is 'real and substantial, rather than imaginary' such a formulation would cause 'tangible' to become superfluous in the wording of OCGA § 17-5-21 (a) (5); there is no such thing as imaginary evidence." Hines determined that in order to give the word "tangible" full effect, that it should be intended that "tangible evidence" is considered an object with material form that can be touched by a person.
Despite this decision, the Court did not rule in the defendant's favor. It was determined that there was a substantial amount of probable cause for the issuing of both warrants, even without the thermal imaging scans being brought into account. The court determined that in light of that ruling, there was no need to address the issue of delay in leaving a copy of the first warrant. A footnote by Hines pointed out that the Legislature has the ability to make a statutory change regarding the warrants to capture heat loss. However, the court's ruling for the Prosecution, despite the exclusion of the thermal imaging evidence illustrates why this may not be a priority issue for law enforcement to pursue.