January 21, 2010

Breaking the Thermal Imaging Myth

January 21, 2010

A common question that growers have is ‘Can law enforcement use thermal imaging to find my grow room?’ The answer is….Not without a warrant. When I was growing up in the 80’s and 90’s, there was a rumor that the National Guard or DEA would fly over neighborhoods with thermal imaging equipment for easy pickings. Apparently that was true, because it happened to at least one guy on the West Coast (see attached case). Danny Lee Kyllo lived in a triplex unit on the Oregon Coast, and after agents used thermal imaging to see that he was growing in his garage, he was arrested and charged with cultivation. After being convicted, and losing on appeal, Mr. Kyllo’s case made it all the way to the US Supreme Court.

Luckily for growers across America, Mr. Kyllo won at the Supreme Court (5-4), and it was determined FOREVER that using thermal imaging without a warrant is an unconstitutional search and therefore violates the Fourth Amendment. The Court reasoned that the inside of one’s home is where the ‘greatest expectation to privacy’ exists in America. What is really interesting is it was the CONSERVATIVE Justices that decided this case. Justice Scalia wrote the opinion! It’s not every day that something like that occurs.

The Court’s reasoning is as follows: “Reversing that approach would leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home. Also rejected is the Government’s contention that the thermal imaging was constitutional because it did not detect ‘intimate details.’ Such an approach would be wrong in principle because, in the sanctity of the home, all details are intimate details.” In my Constitutional Law class I pointed out that thermal imaging can pick up two people having sex, as well as a clear silhouette of a hot body coming out of the shower. I think that EVERYONE can agree that there is the ‘greatest expectation of privacy’ in those instances.

Before you think that you are invincible, beware — IF LAW ENFORCEMENT HAS A WARRANT THEY CAN DO ALL THE THERMAL IMAGING THEY WANT. However, like I always say, if the cops have a warrant, the least of your worries is thermal imaging. They are going to enter your residence anyways, regardless of thermal technology. You might as well smile for the camera. The safest thing to do is not grow in a triplex and lay low!



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