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Blue_Screen

I have heard mixed things about this so I thought I would ask (can't find a definite answer) -
Does marijuana itself give off a heat signature that police detect with an IR camera (say, when cops are overhead in a helicopter scanning areas for pot in houses and fields), or is it just the hydroponics and other heating lamps that they can see?
Would someone in a lower-heat environment using fluorescent bulbs be less likely to get caught?
Thanks

 

TheUnseenTruth

http://www.marijuana.com/420/legal-i...izure-faq.html

Our good friend Phuzz ( an L.E.Officer ) made this thread, I think it will help you alot.It's my understanding that they can't look into your house with IR cameras unless the have a warrant, as nothing is plain view.

If I were growing, I'd say there's nothing better than real sunlight, and it's free.

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Quote:

Originally Posted by goodgirl I think I will be stopping by the bunker tonight....I could use a little of what you are all serving.

phuzz01

Infrared detects heat signatures. So, the camera would be used to scan for lamps and other equipment that gives off heat. That is why it is useful for searching for suspects at night. When the bad guy is lying in a bush, the camera detects his body heat, which appears in stark contrast to his colder surroundings.

Also, the Supreme Court has ruled that using infrared equipment is a search, and is therefore governed by the 4th amendment. So we cannot just randomly drive (or fly) around looking into people's houses with it. We would need probable cause plus a search warrant, or one of the valid exceptions to the requirement for a search warrant.

TGR

Hey Phuzz,
Are you by chance familiar with the 9th Circuit Court of Appeals decision on USA v Danny Lee Kyllo No. 96-30333 D.C. No. CR-92-00051-1-HJF?
In the opinion, Circuit Judge Hawkins dissents: "My colleagues have made the best case imaginable for the proposition that the use of a thermal imaging device constitutes a search within the meaning of the Fourth Amendment.
I am not persuaded.

A search, whether of a home, a car, or a body, is, at bottom, an intrusion; a non-consensual invasion of protected space. Whatever its Star Wars capabilities, the thermal imaging device employed here intruded into nothing. Rather, it measured the heat emanating from and on the outside of a house.
Nor did law enforcement randomly choose its choice of targets: the agents employing the device were alerted to Kyllo's house because of its extraordinary use of electricity, a use consistent with indoor marijuana cultivation.

I would follow the lead of our sister circuits and hold that he use of thermal imaging technology does not constitute a search under contemporary Fourth Amendment standards."

In the case, the thermal imaging "search" was conducted, and then the power records were acquired, and then a warrant to search was issued by DEA. The decision to convict and sentence Mr. Kyllo to 63 months was upheld.
Now, I wonder, given that this case is about 10 years old, did Mr. Kyllo maybe finish his sentence while appealing and then just "let it go?". I can't seem to find any reference to Judge Hawkins decision ever being reversed.

TGR

Here's the document of the case if anyone is interested. There are several other case referrals in the body of the document.

9th Circuit Opinion

 

phuzz01

TGR,

Yes, I am familiar with that case. And the 9th Circuit decision was overturned by the US Supreme Court. See KYLLO V. UNITED STATES (99-8508) 533 U.S. 27 (2001) 190 F.3d 1041

KYLLO V. UNITED STATES

Generally, when deciding whether something constitutes a search for 4th amendment purposes, the Court determines whether a person has a reasonable expectation of privacy in the place or object being searched. In this case, somebody is concealing evidence of a crime inside their home. When law enforcement uses technology not ordinarily available to or used by the public to look for evidence that is inside of the home, that is generally considered by the Courts to be violating the homeowner's expectation of privacy.

For example, the Court usually considers using binoculars to not be a search for 4th amendment purposes. Binoculars are widely available and frequently used by the public for any number of purposes. Therefore, if somebody leaves something that is in plain view with the use of binoculars, it would stand to reason that they are not subjectively asserting their privacy rights with respect to that object.

For another example, the police could go over to your neighbor's house, get the neighbor's permission to look out their upper story window, and look over your fence into your backyard. Again, if you leave something out in your backyard, you do not have a reasonable expectation of privacy in it, because any person with a line of sight can see it.

In contrast, infrared technology is not commonly used by the public. And when law enforcement uses it in drug cases, it is used to specifically circumvent measures that people use to keep evidence hidden (i.e. keeping it inside). Therefore, the Courts consider it to be a search for 4th amendment purposes.

TGR

I see, makes total sense. I didn't find the further judgments in the Kyolo case. It definitely seemed inevitable.
It appears that the finding to reverse the decision was filed probably after Mr Kyolo had served his time for the cultivation charge. Do you know what, if any, legal ramifications this could have regarding the essentially closed case of Mr Kyolo?

Take care. TGR

phuzz01

One thing that most people do not realize is that, if a higher court overturns a decision, they usually do not enter a finding in the case. In some cases they CAN'T enter a finding, as that is a power that only the lower courts have. So usually, a higher court will overturn a lower court's decision on a motion to suppress evidence, and then remand the case back to the lower court for further proceedings (such as a new trial).

So, in the case that we are looking at, the defense files a motion to suppress evidence gained by using IR, on the grounds that it is a search under the 4th amendment. The trial court denies the motion, allows the evidence, and proceeds with trial. On appeal, the 9th circuit upholds the trial court's ruling, but then the US Supreme Court overturns the previous courts' rulings. In that case, the original motion to suppress is granted, and the IR evidence in suppressed. Now, the case is remanded back to the original trial court for a new trial, without the IR evidence. It would then be up to the State to decide whether they still had sufficient evidence to continue with a new trial, or whether to drop the charges.

If the State drops the charges, or a new trial finds the defendant not guilty, then his criminal record would be cleared of the conviction. However, if he has already served his time, that obviously can't be taken back. I suppose that the defendant could TRY a civil suit, but I doubt that it would be successful. He would have to show gross negligence, recklessness, intentional civil rights violations, etc. And given that the trial court, the appeals court, AND the 9th circuit all ruled in favor of the State, I doubt that he could meet the burden of proof.

Of course, it is always possible for the State to proceed with a new trial and win, in which case there is no effect on the defendant except that he has speant a boatload of money (trial=$, appeal=$$, Circuit Court appeal=$$$, Supreme Court appeal=$$$$$$$$).

BartSimpson

Phuzz01's Advice=Priceless!

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TGR

Makes the world go round doesn't it??!!

Makes total sense, thanks for the reply!