Pubdate: Mon, 11 Jun 2012
Source: Athens Banner-Herald (GA)
Copyright: 2012 Athens Newspapers Inc
Author: Walter C. Jones


ATLANTA - A lawyer for an Athens man accused of manufacturing illegal 
drugs told the Georgia Supreme Court on Monday that state law doesn't 
allow police to get a search warrant to gather thermal imaging, as 
was used to discover the marijuana growing in his garage.

However, a prosecutor, a judge and the Court of Appeals say the 2009 
search warrant used by the Northeast Drug Task Force was proper.

The task force 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 task force went into the home and found an indoor marijuana farm.

The resultant court case may be the first of its kind in any state in 
this country.

Police contend the grainy video shows energy consumption that was 
greater than neighboring homes, providing them with probable cause to 
get a warrant to enter James Brundige's home.

A 10-year-old U.S. Supreme Court decision requires officers to get a 
search warrant to aim a heat-measuring camera at a suspect's home. 
But Georgia law dealing with search warrants specifically applies to 
"tangible evidence."

Brundige's lawyer, Western Judicial Circuit Assistant Public Defender 
Benjamin Pearlman, told the seven justices on the state's top court 
Monday that since the law specifies tangible evidence, prosecutors 
can't introduce evidence in the upcoming trial that resulted from the 
imaging. He hopes that also will block the physical search of the 
garage and all of the plants found there.

"My contention is that under Georgia law, the statute authorizing the 
issuance of a search warrant does not authorize a thermal-imaging 
search warrant," he said.

Justice David Nahmias, a former federal prosecutor, said instead of 
getting a warrant for thermal imaging, the police simply could have 
asked for a warrant to search the garage, since they already had 
found pot in Brundige's outdoor garbage can that provided probable cause.

"I don't know why you'd ever get a warrant just for thermal imaging," he said.

Western Judicial Circuit Chief Assistant District Attorney Brian 
Patterson said legislators used the word "tangible" to distinguish 
from imaginary evidence, rather than requiring that it be physical.

Nahmias observed that data, like that in cellphones and computers, 
also is not tangible and frequently is the subject of search warrants.

A separate problem for the prosecution is police's two-day delay in 
delivering the imaging search warrant to Brundige. Patterson argued 
that it was an oversight and that officers acted in good faith.

Justice Harris Hines was blunt.

"I'll just tell you it doesn't look good," he said.

Brundige's trial will wait until the justices hand down their ruling 
in the next four to six months.

* Banner-Herald criminal justice reporter Joe Johnson contributed to 
this report.
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