Pubdate: Tue, 16 Oct 2012
Source: Athens Banner-Herald (GA)
Copyright: 2012 Athens Newspapers Inc
Author: Kate Brumback


State high court denies attempt to suppress evidence

ATLANTA - The Georgia Supreme Court has ruled that evidence of
marijuana growing can be used in an upcoming trial despite the
defendant's argument that it was improperly obtained with a thermal
imaging scan, according to an opinion published Monday.

James Brundige has pleaded not guilty to multiple charges related to
growing marijuana. He argued that evidence found by authorities should
be suppressed because one of the searches was for heat loss, which
isn't "tangible evidence" under state law.

The state's highest court agreed that heat loss patterns aren't
tangible evidence, but said that searches of the house were
permissible because other information obtained by investigators was
enough to establish probable cause.

The case began when a police officer acting on a tip found "an amount
of marijuana in a size that is consistent with a marijuana grow
operation" in an outdoor garbage can at Brundige's house, according to
the opinion. The officer also learned Brundige had previously been
arrested twice on marijuana possession charges. The officer also found
that Brundige's home was using considerably more electricity than a
neighboring home.

Citing his investigation as probable cause, the officer asked for a
search warrant to remotely detect unusual heat patterns, including
"hot spots" consistent with high-intensity lights for growing
marijuana. The judge gave investigators permission to search for
"anomalous heat loss" at the home.

A detective using a thermal scanning device noticed a lot of heat
coming from the garage, leading him to believe marijuana was being
grown. The detective sought a second warrant to search the inside of
the home based on what he found. The judge granted that warrant.

A search of the home on May 29, 2009 turned up various amounts of
dried and growing marijuana, pills of the sedative clonazepam, growing
lights, a tally sheet in Brundige's wallet and related items,
according to court filings.

Brundige has pleaded not guilty to charges of manufacture of
marijuana, possession of marijuana with intent to distribute and
possession of a controlled substance.

He filed a motion to suppress the evidence from the two searches when
the case goes to trial. He argued that the first search warrant, which
designated "anomalous heat loss" as the item to be seized wasn't
authorized under Georgia law. State law allows the seizure of any
"item, substance, object, thing, or matter, other than the private
papers of any person which is tangible evidence of the commission of
the crime for which probable cause is shown."

The state's highest court found that the state Court of Appeals was
incorrect when it determined the evidence in question is "tangible
evidence," but said that does not require a reversal of the decision.

The court said the second warrant, which authorized the search of the
home, "was supported by the same information as that which was in the
first warrant, with the only additional information being that gained
from the thermal imaging search."

Since the evidence presented for the first warrant was considered
enough to establish probable cause, the evidence seized under the
second warrant is admissible, the high court ruled.
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