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Thermal imaging of building leads to weed bust and trial

Police claim the hot thermal images they got at 2953 Imperial Avenue were incidental.
  • Police claim the hot thermal images they got at 2953 Imperial Avenue were incidental.

On February 12, 2012, police executed a search warrant at a commercial building at 2953 Imperial Avenue in Grant Hill. "Numerous items" were seized related to a marijuana-growing operation said to belong to Howard Maurice Greenspan.

The police's information was based in part on information derived from a warrantless thermal-imaging scan of Greenspan's building in an earlier search for a suspect in an unrelated armed robbery.

Greenspan filed a motion to suppress the evidence because it came from a warrantless thermal-imaging scan of the building. The prosecution argued that there was no constitutional violation because the police were legitimately using the thermal imaging device to search for a robbery suspect, and they could properly use any evidence in plain view.

On July 8, superior court turned down Greenspan's argument and the Fourth Appellate District Court of Appeal upheld the court trial.

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I wonder if Greenspan cited Kyllo v. United States in his defense? To me it seems like some ignorance of stare decisis on the appellate bench.

"The Supreme Court ruled 5-4 that the thermal imaging of Kyllo's home constituted a search. Since the police did not have a warrant when they used the device, which was not commonly available to the public, the search was presumptively unreasonable and therefore unconstitutional. The majority opinion argued that a person has an expectation of privacy in his or her home and therefore, the government cannot conduct unreasonable searches, even with technology that does not enter the home. Justice Scalia also discussed how future technology can invade on one's right of privacy and therefore authored the opinion so that it protected against more sophisticated surveillance equipment. As a result, Justice Scalia asserted that the difference between "off the wall" surveillance and "through the wall" surveillance was non-existent because both methods physically intruded upon the privacy of the home. Scalia created a "firm but also bright" line drawn by the Fourth Amendment at the "'entrance to the house'". This line is meant to protect the home from all types of warrantless surveillance and is an interpretation of what he called "the long view" of the Fourth Amendment."

This decision by the US Supreme Court clearly says that law enforcement need a warrant to use imaging technology to collect evidence.

Ponzi: The appeals court discusses the Kyllo decision. But, the appellate court says, "Notwithstanding the general constitutional prohibition against warrantless searches of constitutionally protected areas, the courts have recognized 'a wide range of diverse situations' that provide for 'flexible, common-sese exceptions to the warrant requirement, including the 'plain view' doctrine."

"The plain view doctrine can apply in two situations, (1) when an officer observes an object in a public place, or (2) when an officer observes an object that is 'situated on private premises to which access is not otherwise available for the seizing officer.'

"When the object is in a private place, the officer may seize the property in open view if the officer has lawfully made the initial intrusion into the private place or is otherwise properly in a position from which he or she can view the particular area."

After the officers suspected the evidence of a marijuana grow without a warrant, they investigated the place for several weeks. Best, Don Bauder

Well it seems like a slippery slope. With this decision, law enforcement may just expand their flight radius during future chases and capture more grow operations and this could become SOP.

Ponzi: Possibly it is a slippery slope, but I am not sure of that. It seems to me if the police find out about a marijuana grow while in the neighborhood looking for somebody else, and then continue to investigate the matter, it should be considered proper police procedure. Best, Don Bauder

Murphyjunk: That I don't know. Greenspan pleaded guilty to cultivation and storage of marijuana and possession of marijuana for sale. He got five years of probation. Best, Don Bauder

Ponzi for Supreme Court! Bauder, don't give up your day job.

It was a fishing expedition without probable cause, based on the information given. Unless the fishing expedition had a warrant based on specific relevant-to-the case information. But any fishing expedition, by definition, is a violation of Constitutional rights. Same applies to this message being stored in a government database.

Twister: I am not sure you would call it a fishing expedition, because the cops suspected something untoward when they were investigating something entirely different. Then, the police investigated Greenspan for several weeks before it moved in on him. He pleaded guilty to possession and storage of marijuana and possession of marijuana for sale. Best, Don Bauder

Considering the part of the city involved, I'd think the cops are constantly looking for bad stuff there. Just a short drive up Imperial Ave through there is enough to give anyone the heebie-jeebies. I'd surmise that the SDPD, even when Lansdowne was running it, kept a close watch on commercial buildings and anything else in that neighborhood.

Visduh: I would agree with that. Cops go hunting where the ducks are, just as politicians do. Best, Don Bauder

The Constitution had might as well be toilet-paper.

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