*1 Dist., A066545.First Div. Four. Apr. [No. 1996.] PEOPLE, THE Plaintiff and Respondent, DEUTSCH,
DORIAN ODETTE Defendant and Appellant. certified for [Opinion partial publication.*] Court, 976(b) 976.1, *Pursuant opinion California Rules of rules for this is certified publication exception with part 3. *3 Counsel Alfieri, for Defendant
Katherine under the Court of Appeal, appointment by and Appellant. General, Williamson,
Daniel E. Chief Assistant George Lungren, Attorney Bass, General, General, K. Ronald A. Assistant Laurence Attorney Attorney *4 Schalit, General, K. for and Sullivan and Seth Plaintiff Deputy Attorneys Respondent.
Opinion
POCHÉ, J. the of a warrantless scan case whether presents question This an made with a thermal device of a constitutes dwelling imaging private to the unreasonable of the Fourth Amendment meaning search within United States Constitution. We hold that it does. Deutsch,
Defendant, to a count of single Dorian no contest pleaded (Health & a in a for marijuana room the cultivation of furnishing building Code, in 11366.5). On she that the trial court erred Saf. contends appeal § her was in a search made motion evidence which seized denying suppress her scan of imager a in the basis of the thermal part with warrant issued upon Code, 1538.5.) That some cannabis (Pen. home. evidence included § lights which were cultivated under being high wattage plants hydroponically the home’s in 2 walled-off of portions garage. search affidavit offered in support to the officer’s police
According a defendant’s home. a a friend ride to gave warrant confidential informant dried a amount of arrived defendant the informant small they gave When seeing a thank The informant did not you. report any growing as home, in living but that doors cannabis inside the did note two plants obtained a search were off The officer room “blocked with bedsheets.” electrical for “an unusually high warrant records which showed utility with the indoor which he consistent usage” “extremely concluded later, having cultivation four without obtained of cannabis.” Some days and in the morning warrant the the residence at 1:30 officer drove by it scanned with a thermal imager.
As described in the officer’s affidavit a thermal device is “a imaging nonintrusive which detects differences in passive, system temperature Such surface levels.” devices measure radiant thermal in the energy portion of the and their electromagnetic spectrum1 display showing areas readings black, which are cold as relatively nearly warmer areas in shades of and gray hot areas as white. v. Porco 1396.) (D.Wyo. F.Supp. With the the officer “observed imager heat level high readings, showing side, face, residence, excessive heat release” from “west north which to be the area.” appeared garage
Discussion
1. Thermal Imaging
The warrantless use of thermal
has
devices
imaging
generated
considerable
the bulk of which
sanctioned
body
authority
has
their
legal
use,
that their use is not an
A
concluding
unreasonable search. much smaller
view,
law
case
has
that
better
body
reasoned
rejected
represents
to thermal
scans of
residences.
authority
applied
private
Defendant maintains
use of the
on her residence was
imager
a warrantless search
conducted
violation
under
Fourth
right,
*5
to the
Amendment
United States Constitution “of the
to be secure in
people
houses,
effects,
their
unreasonable searches
persons,
against
papers
. . . .”
In
(1967)
v. United States
While Katz strict rejected of versus categories protected unprotected is, places, Justice Harlan noted “home for most where place purposes, imager (such night goggles) 1The thermal differs from infrared devices as in that the vision amplify latter spectrum light imager registers solely the infrared of that whereas the portion (Comment, High-Tech on spectrum Assault of the infrared which we call A heat. ‘Castle’: Warrantless Thermal Surveillance Private Residences and Fourth Amendment (1995) 267, 280, 100.) Nw. U. 90 L.Rev. fn. activities, ex- or statements but objects, [one] expects privacy, [one] of the amendment fall outside the may protection to outsiders there poses” no them and has shown freely has displayed because the householder States, U.S. at (Katz p. them v. United intention to keep private. Harlan, More (cone. J.).) recently L.Ed.2d opn. 588] [19 home accorded the deference Court has restated particular Supreme notion that a basic “Fourth Amendment principle” as characterizing the individual normally expects residences are in which “private places warrant, and that not authorized by free of intrusion governmental privacy to as recognize justifi- one that is society prepared plainly 530, 705, L.Ed.2d (1984) 468 U.S. (United States v. Karo able.” 541, 3296].) 104 S.Ct. be view cannot activities which are exposed public
Information or which a has a subjective expectation something person characterized that which the second being nor can fulfill they prong privacy, Katz—as A common theme of public will remain society reasonably expects private. in which no cases many which defeats runs through disclosure list of recorded mechanically occurred: such as a search was found to have been held to be which has numbers dialed phone company phone kept an been made through operator disclosed as if the calls had as publicly 228-229, 220, L.Ed.2d (Smith (1979) 442 U.S. 743-744 Maryland in an industrial 2577]), of structures S.Ct. or resolution high photographs as available to government viewed from the air which are building complex (Dow Co. v. United Chemical as to that of airborne any passerby. inspection 237, 238, 227, 237, fn. States 239 [90 1819].) outbuilding thermal scan of an a warrantless Accordingly, S.Ct. because the home has been upheld located some 200-300 from a yards (5th Cir. 48 F.3d (U.S. v. Ishmael was in an field.” “open structure 850, 857.) *6 street has it out on the setting public
One who discards garbage by bin. of his garbage in the contents any privacy renounced expectation 36-37, 30, 35, (1988) 486 40 L.Ed.2d v. Greenwood U.S. (California [100 1625].) of Greenwood garbage S.Ct. to the discarded Analogizing 108 the heat signatures have characterized certain thermal imaging opinions (D.Hawaii (U.S. v. Penny-Feeney the device as “heat waste.” registered by (9th 220, 225, Feeney in U.S. v. 1991) affd. on other grounds 773 F.Supp. 992, 1053, 1056; 1994) 34 F.3d (11th Cir. 1993) Cir. F.2d U.S. v. Ford 984 668, is neither 995; (7th 669.) The 1995) analogy v. Cir. 46 F.3d U.S. Myers Tenth Circuit decision from the law nor As a recent good good physics. heat the waste out, measure the thermal does not imager simply points structure, differentials it measures all temperature but from radiating across the exterior surface of the (10th structure. v. Cusumano Cir. 1497, Therefore, 1995.) 67 F.3d Dec. rehg. granted the function of the device is to an infrared paint of the heat picture sources which permits inferences about the heat generating activities within the occurring resi- Moreover, (Id. 1501.) notes, dence. at as the p. Cusumano court the thermal is no more imager directed to waste heat measuring than the electronic bug affixed to the booth in was directed to phone waste sound collecting Katz (Ibid.) waves. that nondisclosed principle activities within the home are those in
which a reasonable society accepts and therefore activities which a warrant for require government intrusion is set out clearly in two Karo, Court cases. In United States v. Supreme beeper U.S. enforcement drug for a to agents arranged be inserted in a beeper can of ether the believed was obtained agents for the being purpose cocaine from (Id. extracting at drug-impregnated clothing. p. [82 537].) L.Ed.2d at from the p. Using signals located the beeper agents residence, can in the course of its movements to a to two different private facilities, (Id. and then to a second storage residence. at 708-709 pp. [82 537-538].) L.Ed.2d at The court pp. concluded that the of the monitoring when it was inside a beeper residence was an private unreasonable search because tells the that a beeper agent article is particular actually “[t]he located at a time in particular residence and private the possession of the or (Id. whose residence is person persons watched.” at being p. 541].) L.Ed.2d at While the p. [82 court noted that the monitoring be, beeper was less intrusive than a full-scale search would nonetheless the revealed information beeper which government would not otherwise have been obtained without (Ibid.) a search warrant.
The outcome of Karo turned on the information
to the monitor-
conveyed
ing agents
while it
by
beeper’s signals
was within the residence and
therefore the case was distinguished
the court from its
holding
year
earlier in
United
States Knotts
1231 about police something of defendant’s residence told scan which could not otherwise have learned activities within the house they warrant to search it. without a obtaining because it is that a thermal scan constitutional muster
To suggest passes that the thermal not intrusive becomes a circular argument. People argue details what occurs inside scan does not reveal intimate about personal, is made that the of the scan home. Sometimes the argument imprecision reveals heat which lack sufficient to only signatures clarity paint images short, In what inside the house is the source of the heat. scan exactly cannot between a room and a tomato distinguish marijuana grow hydroponic farm. In fact in one case the “hot found the thermal only reported spot” by scan used to a search warrant of the turned out to be a support premises, residence, household dehumidifier” located in the while in fact “standard (W.D.Wis. was in an v. Field being grown outbuilding. 1518, 1994) 1523-1525.) because the thermal imager F.Supp. Precisely tool, is indiscriminate in sources of heat it is an intrusive which registering tells much about the activities inside the home which be unrelated may quite illicit In this it is the antithesis of a sniff any activity. respect very dog because the trained narcotics in the alerts of contraband dog only presence 696, 110, 120-121, (United States v. Place L.Ed.2d 707 [77 2637])2 103 S.Ct. the thermal whereas all imager indiscriminately registers sources of heat.
Defendant demonstrated a in the activi- subjective expectation ties she conducted inside her home. The found in her rooms grow garage off, were walled and the view visitors into the rest of her house from the by room was
living blocked bedsheets over the We find that by hung doorways. an society recognizes reasonable that the heat from generated within a residence not be measured without private may by government a warrant such a search. In this instance the warrantless thermal permitting scan of defendant’s home was an search unreasonable prohibited by Fourth Amendment. cases, 2Dog sniff dogs specially those in which alert types trained to to the odor of certain contraband, (United States v. by generis. have been Supreme characterized our Court as sui
Place,
120-121].)
In Place a sniff of
luggage
U.S.
conducted at
airport
upheld
meaning
an
was
as not a search within the
of the Fourth
(Ibid.) Similarly
dog
Amendment.
a
sniff of a
alley open
warehouse conducted from an
to the
Lingenfelter
public
(9th
1993)
in U.S. v.
upheld
was
Cir.
F.2d
a
and a sniff of
parked
gas
semitrailer
a
station in
open
public
an area
to the
was likewise allowed in
(9th
United
Colyer
States v. Solis
(D.C.
1989)
2. the Sufficiencyof Affidavit that the Defendant maintains without results the impermissible thermal scan made of her residence the affidavit a basis for providing issuance of the search warrant falls short of establishing cause. probable
Probable cause a that what is will be “strong suspicion” being sought in be (1976) the location to searched. Court Cal.3d (Wimberly Superior 641, 417].) 547 P.2d who issues the Cal.Rptr. magistrate [128 whether, must warrant conclude the set given totality circumstances affidavit, out in the there is a fair that will probability the evidence be sought (Illinois at the (1983) located scene the v. Gates search. 527, 548-549, 2317].)
238-239 103 S.Ct. On we accord appeal [76 deference, the great determination whether there magistrate’s only inquiring a basis to conclude that was substantial the warrant would uncover evidence (Id. 546-547].) of crime. L.Ed.2d at
The affidavit submitted Detective Watkins that the by recounted confidential informant was not only small amount of given home, while inside the but detected also “a odor there. heavy marijuana” The informant also noted that in the room were living area doorways informant, blocked bedsheets. In addition to the from by information the with Detective Watkins obtained a warrant records of the electrical con at the residence. Those records showed that electrical sumption consumption was to seven times the rate” in “up opinion baseline which the quantity of the officer “extremely was consistent with the indoor cultivation of cannabis.”
In his affidavit the officer recounted a considerable personal experience arrests, with narcotics for investigations seven warrants including prior indoor of cannabis. The of an growing officer opinions experienced may be considered in legitimately cause magistrate probable making determination. (People v. Tuadles Cal.App.4th 780].) Given in information set out Cal.Rptr.2d totality scan, after affidavit the results of the can excising we that there say was a substantial basis to that there evidence support strong suspicion of a crime to be found in defendant’s home.3 The court did not err in trial denying motion to traverse the search warrant. suppress/motion light of part 3In our conclusion in impermissible the warrantless use of scan was we not conveyed need reach defendant’s additional contention that the of that scan results conclusory magistrate’s terms in the inadequate affidavit formed an factual for the basis determination.
1233 3. Denial Franks Hearing*
Disposition we hold that the warrantless use of the thermal Although imager upon Amendment, defendant’s residence violates the Fourth we af- nonetheless firm because even without the results of the thermal scan the affidavit a substantial basis for the cause to provides magistrate’s finding probable Gates, (Illinois 548].) search. v. 462 U.S. at L.Ed.2d at supra, p. p. The of conviction is affirmed. judgment
Reardon, J., concurred. ANDERSON, J.,P. and with Concurring I concur the result Dissenting. reached but their by my colleagues with conclusion that respectfully disagree the thermal scan of defendant’s roof constituted an unreasonable search the Fourth Amendment. prohibited by that the view
My colleagues
is a
view
acknowledge
they adopt
minority
date,
but assert that it is “better reasoned.” It is not. To
four circuit
courts
have reached the conclusion that
appeal
warrantless thermal scans do not
850;
(U.S.
violate the
(5th
1995)
Fourth Amendment.
v. Ishmael
Cir.
48 F.3d
1994)
1056;
U.S. v.
(8th
(7th
1995)
Pinson
Cir.
24 F.3d
U.S. v.
Cir.
Myers
668;
992;
(11th
F.3d
U.S. v.
1994)
Ford
Cir.
34 F.3d
and U.S. v. Robinson
(11th
1995)
1325.)
Cir.
62 F.3d
one Circuit Court of
Only
has
Appeal
view,
and that
adopted
majority’s
circuit has
to reconsider its
agreed
(U.S.
determination.
(10th
1995)
v. Cusumano
Cir.
F.3d
rehg.
Dec.
granted
1995.) The Tenth Circuit’s choice to
in
grant
rehearing
(W.D.Wis.
Cusumano leaves one
(U.S.
1994)
federal trial court
v. Field
1518)
F. Supp.
(State
and one state court
v.
misses a factual distinction between those cases and the one at bench. In key cases, the three the noted devices heat discovered being Thus, intentionally discharged by growers vents. in each through cases, (or of those the waste) between of heat analogy heat and venting Put in none discarding garbage another of those apropos. way, cases could the defendants have or have had subjectively reasonably an when vented the excess from their expectation heat privacy they growing into operations atmosphere.
When the Eleventh Circuit confronted the identical situation we face in the case at use bench—the of a thermal scan to discern heat differentials where the defendant did not vent heat into intentionally atmosphere Robinson, —the court different v. adopted F.3d approach. supra, so, 1328-1330.) In Eleventh Circuit addressed doing specifically Ford, and its in earlier decision U.S. v. 34 F.2d distinguished 992. It is the analysis Robinson which I believe addresses the Fourth properly bench, Amendment issue the case at an that deserves serious analysis consideration:
“The
Amendment
Fourth
to be
provides
right
people
‘[t]he
houses,
effects,
secure in their persons,
unreasonable
papers,
against
Const,
seizures,
searches and
shall not be violated.’ U.S.
amend. IV. In
Ford,
United
(11th Cir.1994),
States v.
“In we that a recognized an unconstitutional search party alleging under the Fourth Amendment must establish both a and an subjective Ford, objective to succeed. 34 F.3d at expectation 995 (citing States, J., United U.S. (Harlan, 361 . . . concur- Katz ring)). The subjective that a exhibit an component requires actual person ‘ while the privacy, objective that “the component requires *11 [privacy] be one that is expectation society to as ‘rea- prepared recognize ” ’ Thus, sonable.’ we must determine whether Robinson [Citation.] had a subjective of expectation that would privacy society as recognize objectively reasonable.
“Our conclusion in Ford that the held no defendant-appellant subjective of expectation turned on his privacy the heat purposefully from his venting marijuana cultivation inside the mobile home with an electric blower Ford, holes through drilled in the floor. In contrast to Robinson [Citation.] did not vent the heat from his or marijuana growing operation deliberately assist the emission of heat in any way. we must decide in this Consequently, case whether inaction can be as revealing regarding subjective expecta- tion of as action. privacy
“The focal issue is whether Robinson had a subjective of expectation in the privacy heat generated his indoor by cultivation. marijuana We find none. While Robinson attempted conceal his marijuana growing operation home, by it inside conducting his the record does not indicate that he took affirmatively action to any prevent heat from resulting being emitted into the above atmosphere his house. The record shows no consid- eration for the emitted heat whatsoever until his indictment and knowledge surveillance, the FLIR which measured heat solely into the expelled from atmosphere Robinson’s home. Robinson’s inaction the heat regarding generated from his marijuana cultivation demonstrates his lack of concern Thus, for it. we conclude that Robinson has not established a subjective expectation in this heat privacy emitted from his home.
“Even if Robinson had demonstrated a subjective expectation in the home, heat emitted from his he also would have to establish the objective component test. Under two-part the objective prong, Katz proper inquiry whether the ‘“government’s intrusion infringes upon ’ the personal and societal values protected the Fourth Amendment.” Therefore, [Citation.] Robinson would have to demonstrate that his privacy in the heat from his house would be rising accepted by society reasonable. objectively
“In
the visual
of a
where
validating
inspection
greenhouse
house,
within the
of a
cultivated
Court found
being
curtilage
Supreme
‘no
details
intimate
connected with
use of the home or curtilage were
observed’
the aerial
Florida v.
U.S.
.
during
viewing.
Riley, . .
added). FLIR surveillance cannot measure
it
(emphasis
temperature;
heat
‘merely
amount of
radiated from various
compare[s]
objects.’
Pinson, 24
F.3d
1057.
mere fact that the
have
police
employed
‘[T]he
forms of
does
relatively
technological surveillance
not render
sophisticated
the surveillance
. . The
as in
unconstitutional.
.
crucial
search
any
inquiry,
’
and seizure
is whether the
reveals “intimate details.”
analysis,
technology
Ishmael,
(footnote omitted) (citation omitted)
at 855-56
F.3d
(quoting
States,
Dow
(1986));
Chemical
v. United
. .
Co.
238 .
accord
996;
Ford,
Pinson,
“In this
the FLIR surveillance revealed
that Robinson’s house
only
emitted
more heat than others in the
significantly
similar
neighborhood
*12
intimate,
definitive,
size. No
of
revelation
even
detail within the house was
detectable; there was
a
nondiscrete
the
merely gross,
bright image indicating
heat emitted from the residence. Such heat detection
thermal
with
is
imagery
not the ‘functional
it
of an
machine in that
allows officers
equivalent
X-ray
to “see” within a structure
with the
what it otherwise cannot see
naked eye.’
Ishmael,
“Moreover, there was no intrusion whatsoever into Robinson’s home
because the emitted heat rose from his house and then was measured by
Ishmael,
the FLIR surveillance. See
v.
48 F.3d at
supra,
[U.S.
856]
that the ‘manner’ of
heat is
in
(holding
detecting
the
‘significant
assessing
the intrusion’).
reasonableness of
infrared
to
Using
surveillance
ascertain
heat
is
to the warrantless use
intensity
analogous
of
drug-detecting dogs
home,
locate contraband.
FLIR surveillance of a
the
Validating
[Citation.]
found that
Eight[h] Circuit
as odor
a
or
‘[j]ust
escapes compartment
building
sniff,
and is detected
the
by
instrument of a canine
so also
sense-enhancing
does heat
a home and is detected
escape
the
infrared
by
sense-enhancing
Pinson,
camera.’
“Thus, we conclude that the form the interests which basis for ‘[n]one residence, the need for of a the auton- protection namely intimacy, personal home, and omy associated with are a threatened thermal privacy by [FLIR] Pinson, 1059; v. at see 46 F.3d at imagery.’ supra, Myers, [U.S. F.3d] constitutional, surveillance that the thermal of a home (determining ‘ scan Seventh Circuit concluded thermal does not intrude in imaging [a] home’). into the Robinson sanctity and has failed to any way privacy establish an or reasonable objective the heat emitted from his from the resulting house unlawful cultivation inside, even if he had met subjective test. component Katz we are unconvinced that ever would Significantly, use of the society accept Fourth Amendment to shield unlawful one’s within home when there activity are noninvasive methods of such detecting criminal activity through legiti- mate such as the heat at case. We byproducts, issue in this hold that the FLIR surveillance of Robinson’s home an was not unreasonable search Robinson, violative of the Fourth Amendment.” v. 62 F.3d at pp. fits, 1328-1330, omitted, italics.) original
The only by discussed is not point which majority disposed Robinson is based on v. argument (1984) United States Karo L.Ed.2d 104 S.Ct. United States Knotts 3296] U.S. 276 103 S.Ct. concludes that the majority 1081]. to be lesson learned from Karo and Knotts is: beeper signal being “[l]ike monitored inside the residence in Karo the thermal scan of defend- imaging ant’s residence told the about activities within the house police something which could not have they otherwise learned without warrant to obtaining ante, view, it.” 1230-1231.) search In (Majority opn., my Karo and Knotts do support view that scans not constitute im- searches under the Fourth proper Amendment. Unlike which was beeper *13 Karo, into introduced residence in private a thermal scan simply does not the inner sanctum of the penetrate home. sum,
In I believe that the has it respectfully Eleventh Circuit and the right, here does not. majority
A petition for a rehearing denied and May respondent’s Baxter, for review the petition Supreme Court was denied 1996. July J., Chin, J., were of the that the should opinion be petition granted.