Pubdate: Sun, 10 Jun 2012
Source: Athens Banner-Herald (GA)
Copyright: 2012 Athens Newspapers Inc
Author: Joe Johnson


An Athens public defender will argue before the Georgia Supreme Court 
today that authorities used technology to illegally seize evidence 
and charge his client as an indoor marijuana farmer.

Authorities used a thermal imaging device to detect a "hot spot" in 
the garage of James Brundige's home on Club Drive, then presented 
that to a judge as evidence that the hot spots probably were caused 
by high-intensity lights used to grow pot plants indoors.

The judge granted a search warrant, and on May 29, 2009, agents with 
the Northeast Georgia Regional Drug Task Force went into the home and 
found an indoor marijuana farm.

Brundige, 28, was charged with manufacture of marijuana, possession 
with intent to distribute marijuana and possession of a controlled 
substance. He pleaded "not guilty," and his attorney sought to have 
the case dismissed in Superior Court by arguing the evidence was 
illegally seized.

The mere presence of a hot spot wasn't good enough proof to warrant a 
search, according to the attorney, Western Judicial Circuit Assistant 
Public Defender Benjamin Pearlman.

"A search warrant commands an officer to enter onto someone's 
premises to search for a specific thing, something tangible that you 
can touch, that a jury can examine," Pearlman said. A reading from a 
device that indicates a large amount of heat is not something that 
can be held, he said.

The attorney used that argument in efforts to suppress the seized 
evidence in Superior Court, and when that failed, he brought the case 
to the Georgia Court of Appeals and lost again.

Today, Pearlman hopes that the state Supreme Court justices will see 
his reasoning.

"Logically, search warrants are sought by officers to enable them to 
search for and seize evidence which would be brought to court and 
introduced in the course of proving the state's case against a 
defendant," Pearlman argues in a brief he filed with the court. "Heat 
or heat loss, standing alone, cannot be brought to court for a jury 
to examine."

State law states that "a search warrant may not be issued for 
anything other than physical, tangible evidence," but the law does 
not define what tangible means.

According to "Black's Law Dictionary," something is tangible when 
"having or possessing physical form; capable of being touched and 
seen; capable of being understood by the mind."

Prosecutors concede in briefs with the court that tangible, "in its 
most basic form," refers to something that can be touched. However, 
they argue, "it also includes definitions such as definable and 
measurable, readily apprehensible by the mind ... ."
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