*1
Supreme Court 20, 2000. Jan. ORDER PER CURIAM. NOW, January, 20th the Order day
AND is affirmed. Commonwealth Court
Argued March 1999. Decided Dec. 1999. *2 Erie, for Attorney, District Taylor, Garrett A. Assistant appellant. Erie, Segel, appellee.
Elliot J. CAPPY, FLAHERTY, C.J., ZAPPALA, Before SAYLOR, CASTILLE, NIGRO, JJ. NEWMAN and OPINION ZAPPALA Justice. of wheth- presents impression question the first appeal
This imaging of an infrared thermal agents’ enforcement er law a search obtaining residence without private device to scan in violation of the an unlawful search warrant constitutes Constitution. The Fourth Amendment to the United States *3 an unlawful that such use does constitute Superior Court held now the Fourth Amendment. We purрoses search for of affirm. 1994, officers entered the basement area police
On April to a Gindlesperger’s pursuant residence Appellee Gregory of marijuana approximately plants. warrant and seized search based, in part, was on informa- Probable cause the search (Cl) informant to Officer tion a confidential provided Pfadt, County veteran of the Erie Mobile year five Gerald The Cl told Officer Pfadt Drug Task Force. he/she in marijuana growing Appellee’s at residence plants observed Pfadt asked the Cl to confirm February of 1994. Officer in marijuana Appellee’s during was basement growing 13, 1994 the Cl did so. In March of February wеek of now Appellee using told Officer Pfadt that the Cl marijuana growth operation. lights artificial facilitate his Captain Greg- occurred when tip Further verification of Army Drug National Guard ory Pennsylvania Davis of the enforcement, Force, Respon- law “viewed” along with local a thermal device known as a using imaging residence dent’s Cause, and Affidavit of Probable “WASP.” Search Warrant 546a, designed distinguish 5. This device is Paragraph R. noticeable amounts of extraneous heat. Id. appreciable unexplainable “an source of heat com- Davis detected Captain area that was not consistent with ing from the basement of the furnace or other know heat sources.” Id.1 location based, A for Respondent’s search warrant was issued home in on the fact that heat source would be consistent part, “[t]his coming lighting the heat source from the artificial used in with growing marijuana.” of Id. Officer Pfadt further averred in of in following probable support the affidavit cause the search warrant: marijuana in grow setting who an indoor do so
[IJndividuals continuing operation plants stages and have various growth so as to be able to have a continuous supply marijuana to be harvested. provided Cl has information to this officer in the past
[T]he that has proven been reliable and will result thе arrests drug individuals for violations of the laws. Id.
Appellee’s police residence was then searched and found lighting equipment marijuana plants artificial as well as in the Appellee basement. was arrested and with various charged Substance, violations of the Controlled Drug, Device and Thereafter, Act. Appellee pre-trial Cosmetic filed a motion to suppress during evidence seized the search of his resi- dence and the trial court A denied the motion. bench trial *4 May was conducted on 1995. found Appellee guilty all the him. charges against appeal, Superior
On Court the trial reversed court’s motion, denying Appelleе’s suppression holding order that the Captain 1. Davis also checked five of similar structure and residences design Appellee’s on either side of home and detected no such heat pattern. device violated the Fourth warrantless use of the WASP use of the results of and that law enforcement’s Amendment a warrant “was invalid to obtain search scanning device of the warrant.” Com- a basis for issuance proper and not (Pa.Su- Gindlesperger, v. 1216, 1218 monwealth 706 A.2d per.1997).2 Superior maintains that
The Commonwealth use of the WASP concluding that the warrantless erred constituted a search pursu- to scan residence Appellee’s to the Fourth Amendmеnt.3 ant pro we note that the Fourth Amendment
Initially,
persons,
to be secure
their
right
people
tects “the
of the
houses,
against
effects
unreasonable searches
papers, and
Const,
right
This fundamental
is
U.S.
amend. IV.
seizures.”
pursu
that searches be conducted
by requirement
preserved
judicial
an
officer
independent
ant
to a warrant
issued
Carney,
471 U.S.
probable cause.
based
California
(1985).
2066,
386,
227 the Court Katz by was established Amendment Fourth States, 19 L.Ed.2d U.S. 88 S.Ct. United (Harlan, J., asserting that one (1967) concurring), requiring demonstrate, first, an has unlawful search occurred an that that which actual, subjective expectation privacy society second, is one our expectation and that searched Here, main- the Commonwealth to be reasonable. recognizes fail to the test the of the instant case meet that facts tains and, Court Katz Supreme United States articulated the search, an thus, improper requiring to fail establish cause, disagree. occurred. probable based We upon warrant a federal violating in Katz was convicted The defendant wagering the transmission of prohibiting interstate statutе Katz, To evidence by telephone. against obtain information recording listening an electronic and agents FBI attached which public of the booth from telephone to the outside of this objected Katz the use placed Katz his calls. obtained contending illegally at trial that it had been evidence agreed, Fourth in violation Amendment. Court use of government’s warrantless the electronic holding recording device to unconstitutional. listening be government’s assertion that because rejected The Court physi- it did not involve a technique employed surveillance booth, Fourth Amendment phone of the penetration cal aсtivity by that such implicated. not The Court concluded agents government justifiably
violated the which [the defendant] constituted using telephone while booth thus relied Fourth meaning within the a ‘search and seizure’ employed Amendment. The fact the electronic device not the wall happen penetrate to achieve that end did significance. can no constitutional the booth have 353, Id. at S.Ct. 507.4 has ruled yet States
While
United
of a
of law
warrantless use
validity
on the
enforcement’s
noted,
Harlan,
opinion,
concurring
in his
formulated
4. As
Justice
determining
particular
violates
whether a
search
above stated test for
thermal imaging device to
privаte
scan a
residence as occurred
case,
in this
courts,
number of federal circuit
district courts
and state courts have done so. There is a split among the
authorities that have examined
Seventh,
the issue. The
Eighth, Ninth and Eleventh Circuits
upheld
have
the use of
thermal imaging
devices
law enforcement officials to scan
*6
(7th
residences.5 United
Myers,
States v.
The Commonwealth relies on those cases that have upheld the use of thermal imaging devices based upon the conclusion that one does not have a subjective expectation of privacy in the “heat waste” that emanates from one’s residence. In so concluding, these courts have essentially analogized this so called “heat waste” to discarded trash the odor that can and/or
the Fourth
prong
Amendment. His two
formally
formulation was
adopted by
735,
Maryland,
Court in Smith v.
442 U.S.
99 S.Ct.
2577,
(1979).
heat waste
relied
device,
beyond
from
the curti-
employed
imager
passive
is a
does
intrude
rays
no
or beams
which
lage, which emits
property.
the interior
observed
any
fashion
that the resolution
significant
also found
fact
*7
Courts have
and,
hot
generally,
only
of such a
is limited
detects
device
building.
The Eleventh
on
exteriоr surfaces of
spots
the
at
that
thermal
issue here
imagery
“the
Circuit observed
it incapable
render
of such low resolution as to
appears to be
activity
by
protected
of detail and
revealing
intimacy
the
Ford,
34
at 996.
Pinson
the
Amendment.”
F.3d
Fourth
of the
was not an
court
“The detection
heat waste
observed:
home;
intimate
of the home were
intrusion into the
no
details
the
of the
observed,
upon
privacy
there
no intrusion
and
Likewise,
Pinson,
the
Courts that constitutionally to be imaging the use of thermal devices that these have done so the conclusion repugnant based 230 do, fact, in regarding
devices reveal intimate details activities home, occurring sanctity within the of the the place deserving protection pursuant the utmost Fourth the Amendment. York, 100 Payton See v. New U.S. S.Ct. (1980) (searches in L.Ed.2d 639 public places seizures are treated than searches and differently occurring seizures the home); States, 505, 511, Silverman United 365 U.S. 81 S.Ct. (1961) (“the 679, 5 man right L.Ed.2d of a to retreat into his own home and there be free from unreasonable gоvern- ‘very mental intrusion stands at core’ of the Fourth Amendment”). Field,
Specifically, the district court found unpersuasive government’s that argument imaging devices are merely incapable of passive penetrating walls. The court stated: irrelevant; passive
Whether a what device is is relevant is walls, what seeing through the device records. As for not imager escaping records heat from the walls that is object emitted an on the of the other side wall. To the pick it, extent the can such up radiation and record it case, instance, can “see through” walls. imager the thermal energy recorded emitted a dehumidi- fier within inside a closet defendant’s residence. The imag- er emitting did not reveal the heat source was a dehumidifier, but it did reveal facts about activities within the house: fact heat emission and its general location.
Field, F.Supp. Likewise, at 1519. Tenth Circuit in Cusumano expressed regarding same concerns the ther- mal imager’s pointed use and out the proper inquiry subjective should focus not on one whether has a expectation home, escaping rather, the heat from their but on *8 subjective expectation whether one has a of exhibited in the occurring activities within the home.6 The court stated: recognize 6. While we that the court’s decision Cusumano was eventually vаcated the matter was decided on non-constitutional sufficient, grounds independent court that found there was infor- —the probable support mation in the affidavit of cause to the issuance aof a radiating from structure the “waste heat” To focus the the manner the of device ignore purpose to both is measures “waste imager it The operates. in which differentials; gradients it records heat heat heat” but rather The of building. of a laws exterior surface across the the of heat radiated inform us that amount thermodynamics directly of is related a section the exterior wall given from by proximi- sources generated the amount of heat heat generate that a interior of that wall. Activities ty to the a heat “signa- therefore produce amount heat significant optimal condi- imager the can detect. Under ture” that into a darkened viewing through open an window tions— room, (or it) much like imager might one example —the signatures into heat somewhat be able to resolve these well See, at 595 Young, (noting 867 P.2d images. e.g., indistinct through cur- an can a human form imager that discern circumstances). typical- More under certain tained window (as hot on a wall only ly, spots the machine identifies case). instance, the it is existence true either indirectly interior sources the thеse distinct with greater varying or lesser recognizes imprecision —with of the exterior walls—and records. insulating the attributes building of some limited by heat lost is data While the value, very reason that true worth of the derice—the imager on the home of the government turned the translation of these predicated upon Defendants —is (albeit into informa- intelligible speculative) thermal records heat. generate the observed tion about activities on the depends of the machine therefore not utility on ubiquitous of heat loss but phenomenon inevitable and heat inside the presence distinguishable signatures see ourselves to the structure. We no reason blind our relationship severing analysis of this physical reality of a emanating through differentials walls heat heat from an informed structure consideration sources that structure. within is, nevertheless, analysis disposition useful to our
warrant —the court’s
thoroughly analyzed
properly
before us
since the court
issue that
analysis
persuasive.
employed
to be
and we find the
the court
*9
Cusumano,
(footnotes omitted)
The court concluded that the foregoing analysis flowed from naturally the Supreme Court’s analysis Katz noting that when
Reduced to its operational fundamentals, bug employed [the by law did not enforcement] monitor the interior of the phone all; rather, booth at it measurеd the molecular vibrations of the glass that encompassed that interior. Al- ternatively, might it fairly be said bug that the passively recorded propagation of waste vibrational energy into the public sphere. Drawing upon logic by embraced our circuits, fellow one could reason that the translation of the vibrational record into an account of that which transpired within the phone booth simply a useful interpretation of abandoned energy analysis would, note, which ap- we —an prove the search Katz. condemned Supreme Court in Katz did not dwell physical minutiae, but, these rather, recognized that the Fourth Amendment broadly protects government from intrusion that person which a reasonably seeks to keep private.
Id. earlier,
As noted the Court in Katz specifically rejected the government’s argument that because the surveillance tech- nique utilized law enforcement did not involve a physical penetration issue, of the structure at the Fourth Amendment was not implicated noting that “the reach of [the] Amendment cannot turn upon presence or absence of a physical Katz, intrusion into any given enclosure.” 389 U.S. at S.Ct. 507.
As did the Cusumano court, we too hold that proper focus of our inquiry should on be whether Appellee was able to demonstrate a legitimate exрectation of privacy in heat-generating activities occurring within his home. In so By focusing 7. expectation on one’s in the “heat waste” that home, emanates from one’s rather than on the occurring activities home, within the it would have to be concluded that the use aof more that the reject argument government’s concluding, we was no Appellee’s to scan residence imager different, analysis, of Fourth than Amendment purposes gone through law have discarded enforcement cases where drug dogs to detect contraband. trash or used trained Greenwood, upheld the California, garbage left for search and seizure discarded warrantless *10 curtilage of Greenwood’s Respondent outside the collection the Court concluded that Greenwood Specifically, home. subjective expectation privacy of his to demonstrate a failed accept to society prepared trash which is as reason- discarded conclusion, on the Court focused the this reaching able. of his relinquishment trash voluntary nature of Greenwood’s The Court found further parties. into hands of third the noting frequency with conclusion the justification through rummage garbage or curbside people which animals The Court noted: bags.
Here, garbage their respondents exposed that we conclude to to Fourth sufficiently defeat their claim public the It knowledge plas- common protection. Amendment of on or at side street are bags public tic left the garbage children, animals, scavengers, snoops readily accessible Moreover, respondents the public. other of member purpose the for the of placed express their refuse at curb collector, who party, might it to a third the trash conveying permit- or through respondents’ have trash himself sorted others, Accordingly, having such to do so. police, ted as “in particularly their an area suited for garbage deposited of public еxpress purpose having for the consumption, it,” no respondents take could have reasonable strangers inculpatory they of items expectation discarded. persons capable tracking of of sophisticated movements resolving gained from such heat a structure and the information within constitutionally images proper since the waste into distinct would be entirely upon expectation privacy in the
focus would be
heat
occurring
radiating from
rather
on the
within
the home
than
activities
danger
adopting
This
such an
the home.
result demonstrates
analysis.
Greenwood,
(citations
40-41,
at
U.S.
Clearly there is a significant differencе between heat which escapes from garbage one’s home and which is voluntarily placed at the curb for collection. We find the Supreme Court of Washington’s summary of these differences to persua- be sive. The court observed:
First, it is difficult to say one voluntarily vents heat waste way the same Heat, that one disposes garbage. unlike garbage, automatically person’s leaves a home without any deliberate participation by the homeowner. Even if some outside, heat is vented to the as in Peeny-Feeney[Penny- Feeney], the device detects all heat leaving home, just the heat directed out through Moreover, thе vent. Greenwood court relied in part on the notion that when one curb, places garbage out at the one assumes the foreseeable children, risk other people, or animals discovering and seizing what is in garbage However, can. it is difficult to say one should expect people other to use sophisticated infrared on instruments one’s home to view so-called heat *11 waste. The Greenwood court also noted one can avoid the risk by not placing private information in the garbage. On hand, the only other the way person for a to avoid the risk of exposure in this case ... would be to turn off all heat home, sоurces in the even in subzero temperatures. Washington v. Young, 867 Likewise, P.2d at 602-03. the Supreme Court of Montana criticized this approach, noting:
The problem with this approach is that it does not address heat, the fact that waste garbage, unlike only can be detect- ed means of a technologically advanced device. It is not readily “animals, children, accessible to scavengers, snoops, and other members of public,” the as was the in garbage Furthermore, Greenwood. since dissipation is an inevitable result of heat production, it does not require a deliberate act nor it preventable is in the same way that one can conceal incriminating garbage. The laws of thermodynamics dictate that no matter insulates, how much one heat will still Moreover, fact one insulates to heat keep the escape. expectation privacy. subjective in indicates at 186. v. 934 P.2d Siegal, State Place, 2637, 462 U.S. 103 S.Ct. In States v. United (1983), the warrant- upheld the L.Ed.2d in dogs to contraband drug passen- trained detect less There, personal luggage at an Place’s airport. ger luggage law enforcement officials so that detained temporarily dog detection based it to trained narcotics expose could con- that Place’s contained luggage suspicion their reasonable traband. imager, drug like a true that the thermal trained
While it is
interior
an
information about
the
merely extracts
dog,
phenomena,
analysis
physical
from
of external
object solely
an
the
emphasized
particu-
in Place
that it is
Supreme Court
the
is able to detect contra-
drug dog
which a trained
larity with
The Court stated:
justifies
dog’s
the
use.
band that
presence
the
or absence of
only
sniff discloses
canine
[T]he
Thus,
narcotics,
the fact that
despite
a contraband item.
something
authorities
about
contents
the sniff tells the
This
the information obtained is limited.
luggage,
of the proper-
disclosure also ensures that
owner
limited
subjected
and inconvenience
ty is not
to
embarrassment
investigative
more intrusive
entailed
less discriminate and
generis.
canine sniff is sui
respects,
methods.
these
that is so
investigative procedure
aware of no other
We are
manner in
both
which the information
limited
content of the information revealed
obtained and
procedure.
Place,
This
U.S. at
Based on the foregoing, we do not find use of the thermal
imager here
analogous
the warrantless
upheld
searches
do,
Greenwood or
however,
Place. We
find the analysis
employed by
Court in
Karo,
United States v.
U.S.
(1984),
S.Ct.
ether. The ether was obtained by Respondent Karo from a government informant and wаs to be used to extract cocaine from clothing that had been imported into the United States. Agents then tracked the can, of movements using visual times, surveillance at and the beeper exclusively at times. Eventually, agents tracked beeper private inside a resi- Thereafter, dence. agents obtained a warrant to search the based, residence in part, on the information derived through the use of the beeper.
One of the issues addressed by the Court was “whether the
monitoring
a
beeper
private residence,
a location not
open
surveillance,
visual
violates the Fourth Amendment
rights of those who have a justifiable interest in
the residence.”
Id. at
At the risk of obvious, belaboring private residences are places in which the individual normally expects privacy free governmental intrusion not warrant, authorized that expectation plainly one that society is prepared to recognize justifiable. as
Id.
The Court found that the the beeper no was more proper than if a DEA agent, warrant, without a entered the house in order to verify its presence. The Court stated:
For purposes Amendment, the result is the same where, warrant, without a the Government surreptitiously *13 device to obtain information that it an electronic employs from outside the not have obtained observation could of the house. curtilage as a monitoring beeper of an electronic device such
The search, course, full is, intrusive than a scale but it of less premises the interior the reveal a critical about does fact knowing interested in and extremely that Government a could have otherwise obtained without war- that it not rant. added). 715, 104 (emphasis
Id. S.Ct. 3296 at Karo, agents the beeper by government the used Like case also revealed critical employed device WASP premises the interior of the could regarding information without warrant. As thе not have otherwise been obtained observed, court Cusumano home of the machine intruded
[t]he spots background on a because it white dark but records allows of that data interpretation rather because the gener- those activities that government monitor domestic Thus, the imager of heat. while significant ate a amount sounds, strips or it reproduce images cannot nonetheless sanctuary security: home one vital dimension its arbitrary discretionary to be alone’ from ‘right let monitoring by government of our actions officials. (citations omitted). Cusumano, at and footnote F.3d foregoing, Appellee Based on the we conclude met the requirements of Katz and thus established that search when law implicating the Fourth Amendment occurred en- his agents forcement home with the WASP device. scanned Accordingly, we hold that warrantless use WASP violated Fourth Amendment and affirm the Superi- device holding or Court’s decision same.
Justice NIGRO concurs the result. Dissenting Opinion. files a Justice CASTILLE CASTILLE, Justice, dissenting. majority holds that the use of an infrared thermal
imaging device to scan a private residence without a search warrant constitutes an unlawful search in violation of the Fourth Amendment to the United Constitution, States affirms the decision of the Superior Court. I respectfully and, therefore, dissent would revеrse.
In order for the use of a thermal
imaging
consti-
*14
tute an unreasonable search under
Amendment,
the Fourth
appellee must show a legitimate expectation of privacy in heat
-
vented from
is,
his home
that
an actual expectation of
privacy
society
that
deems to be reasonable. Katz v. United
States,
347,
389
361,
U.S.
507,
(1967).
88 S.Ct.
Eleventh Circuit Court of Appeals upheld the use of a thermal imaging device when it was used to detect the heat vented from a mobile home in marijuana which was grown. Like the in ease, scenario the instant a confidential provided informant police with information that the defendant in Ford grow ing in marijuana home, the mobile police used the thermal imaging device as a further investigative tool confirm the information obtained from the confidential infor There, mant. the court stated:
[T]he imagery at issue here appears to be of such low resolution as to render it incapable of revealing the intimacy of detail activity protected by the Fourth Amendment. A thermal imager operates by detecting dif- ferences in the surface temperature objects; of it cannot penetrate walls or windows to reveal or, conversations as here, used human activities. Although the device used by the [police can detect officers] differences as small as half of a degree, as used against Ford it could only describe conditions within the mobile home in gross detail. The [police] operator was able to detect high heat transmission
239 corner of mobile home and one wall from underneath from the floor. structure, or five feet extending up four nor nor does personal, is neither sensitive information Such mobile home. activities within the specific it reveal Thus, that defendant had the court found Id. at 996-97. privacy. of expectation no actual рrecedent from the on to find court went Ford suggests that the defendant’s United States from heat his mobile home is vented expectation privacy Id. accept as reasonable. society prepared not one Greenwood, 35, 108 486 U.S. S.Ct. (citing at 997 California (1988)(no 1625, expectation L.Ed.2d 30 reasonable 100 curtilage for collection outside the left garbage home); v. Western Pollution Board Colorado Air Variance 607 416 U.S. S.Ct. L.Ed.2d Corp., Alfalfa (1974) (a may plumes observe smoke emitted inspector health warrant); States v. chimney from without a search United (1983) Place, 696, 103 462 U.S. S.Ct. L.Ed.2d in a to trained canines does (exposure public place of luggage Amendment)). Fourth a search under the constitute persuasive. I court to reasoning of Ford be find the *15 investigative as an is imaging The of a thermal device tool use — it analogous merely to the use of binoculars enhances or vented heat lawfully Escaping which can be observed. not type personal protected by from a home is effect Pennsylvania Fourth or Article Amendment Section Rather, it is form of simply Constitution. another waste type from a home that is of same that the product emitted Supreme protected by Court has held United States Fourth Amendment. case, Ford, instant as a confidential informant told home. marijuana in his The
police appellee growing overlooks the essential fact that the of this majority here neighborhood part device was not of a random scan illegal marijuana an cultiva- may sources of heat that indicate police only tion within a residence. used scheme investigative as an tool to confirm the imaging information provided by the confidential informant. Appellee had no reasonable expectation of the heat vented from his home as a result agricultural of his Thus, activity. I believe that the use of imaging a thermal device to detect the vented heat was not an unlawful search in violation of the Amendment, Fourth and I would reverse the decision of the Superior Court.
743A.2d 907 Pennsylvania, Appellee, COMMONWEALTH of Reginald LEWIS, Appellant. of Pennsylvania. 28,May
Submitted 1998. Decided Jan. 2000.