Pubdate: Tue, 12 Jun 2012
Source: Augusta Chronicle, The (GA)
Copyright: 2012 The Augusta Chronicle
Author: Walter C. Jones


Athens Man Claims State Allow Doesn't Allow Technique That Led to 
Discovery of Marijuana

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 to 
discover marijuana growing in a garage.

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

The case may be the first of its kind in any state's court to 
confront the issue.

Police contend that the grainy video they got shows heat given off by 
grow lights and energy consumption that was greater than that in 
neighboring homes, providing them with probable cause to get a second 
search 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, Benjamin Pearlman, told the seven justices on the 
state's top court that because the law specifies tangible evidence, 
prosecutors can't introduce evidence in the upcoming trial that 
resulted from the imaging. He hopes that will also 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 could have simply 
asked for a warrant to search the garage because they had already 
found pot in Brundige's outdoor garbage can.

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

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 cell phones and computers, 
is also not tangible and is frequently the subject of search warrants.

A separate problem for the prosecution is the 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.
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