Thermal Imaging -- Newest Weapon in "War on Drugs;" Court Rules Use Is Not a Search
"My initial reaction was, 'this has got to be baloney, and it's got to be a violation of the Fourth Amendment," New Jersey defense attorney William Buckman said of thermal imaging technology, addressing the National Association of Criminal Defense Lawyers summer CLE program on August 12. "Thermal imaging is an assault on our right to privacy in our own homes" ("Thermal Imaging: 'Search' or Just Bad Investigation?" BNA Criminal Practice Manual, vol. 8, no. 20 (Sept. 28, 1994): p. 458-462).
In an unrelated case a California Court of Appeals ruled that use of thermal imaging does not constitute a 'search' and does not necessitate obtaining a warrant.
Thermal imaging devices, or FLIRs (forward-looking infrared devices), map relative heat levels over an area. Imaging units, which look similar to home camcorders, cost between $25,000 and $100,000 and have been used to detect indoor marijuana growing operations.
Most federal courts have ruled that thermal imaging does not constitute a search of a home. In U.S. v. Fields (W.D.Wisc., 94-CR-13-C; magistrate's report, June 9, 1994; dismissed July 8, 1994) however, the court decided otherwise:
Thermal imagers don't see through walls in the sense that a telescope sees through a window. But the devices provide visual images of varying clarity that allow the operator to draw, or claim to draw, conclusions about what is happening on the other side of the house wall. ... So, it is disingenuous for the government to argue that thermal imagers do not reveal what is happening inside of a home (Slip op. at 28-29).
Buckman discussed State v. Kozic (NJ SuperCt [Gloucester Cty], 92-03-129-I), in which he defended Edward Kozic and argued that thermal imaging evidence should not have been used to obtain a search warrant. In 1991 as part of Operation Green Merchant the DEA obtained the customer list of a mail order company from which Edward Kozic had bought indoor plant lights in 1989. In October of 1991, Detective John Silver of the New Jersey State Police began surveillance of the Kozic apartment. Based on the thermal imaging evidence, Silver swore in his affidavit for a search warrant that Kozic was operating an indoor growing operation. Buckman attempted to get the evidence suppressed, but the motion was denied and Kozic was convicted. Kozic refused to appeal the decision and was sentenced to one year probation and six-month suspension of his driver's license.
In the latest case to involve thermal imaging, U.S. v. Ford (CA11, No. 92-5181, Sept. 12, 1994), officers used the technology to find an extraordinary amount of heat coming from the defendant's mobile home. The officers surmised that the defendant was operating an indoor marijuana-growing operation and was able to obtain a search warrant based on the thermal imaging information. The court found that the technology could not reveal "intimate details" of the mobile home, and is comparable to the use of dogs to sniff for drugs in luggage.
Buckman disagrees with the court's assessment of the technology. He said that thermal imaging could be extended for other purposes. "It is even possible for a highly skilled operator, given the right conditions and equipment, to detect whether individuals are engaging in sexual activity," he said.