In a case involving emerging technology, a public defender in Athens, Ga will speak before the State Supreme Court on Monday about the use of technology to collect evidence for his client’s case. In 2009 Authorities used a thermal imaging device on James Brundige’s home where they suspected he was involved in criminal activity. The thermal imaging device showed a hotspot in Mr. Brundrige’s home. The authorities in the case took that evidence of a hot spot in his house to a Judge saying it was evidence of a hot lights to grow marijuana in his home. The Judge granted the warrant, and on May 29th of 2009 the Northeast Georgia Regional Drug Task Force raided Mr. Brundige’s home, and indeed found an indoor cannabis garden.
The 28 year old was charged with manufacturing, possession with intent to distribute and possession of a controlled substance. His public defender took his case to the Superior Court to try and have the case dismissed arguing the the evidence in the case was illegally seized. Western Judicial Circuit Assistant Public Defender, Benjamin Pearlman told the judges that a mere hotspot wasn’t enough evidence to gain a warrant. He told the Justices that a search warrant commands an officer to enter onto someone’s premises to search for a specific thing, something tangible that you can touch, that a jury can examine. A reading from a device that indicates a large amount of heat is not something that can be held, according to Pearlman.
Those arguments were exactly the same when he tried to suppress evidence in Superior Court. When that failed, he brought them to the Georgia Court of Appeals. Now he is hoping that the State Supreme Court will understand the reasoning behind suppressing thermal technology device gathered evidence. What they are arguing today is the term “Tangible Evidence” – the requirement for a warrant according to Georgia law. According to the law, a search warrant may not be issued for anything other than physical, tangible evidence. Pearlman is arguing that Heat, or heat loss standing alone cannot be brought into the court for a jury to examine. He says according to Black’s Law Dictionary, the most widely used law dictionary in the country, the legal definition of tangible means anything “having or possessing physical form; capable of being touched and seen; capable of being understood by the mind.” Prosecutors are arguing that tangible includes definitions that are measurable and readily apprehensible by the mind, therefore they hope the warrant stands, the evidence can be used, and Mr. Brundige will be locked up for some time for his crimes.
Now if you thought that the United States Supreme Court had already ruled on thermal imaging to detect marijuana gardens, you are right. A 10-year-old U.S. Supreme Court decision in Kyllo vs. the United States, requires officers to get a search warrant to aim a heat-measuring camera at a suspect’s home. But Georgia law dealing with search warrants specifically applies to “tangible evidence”.