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Thermal Imaging by Palm Beach County Sheriff’s Helicopters to Bust Suspected Marijuana Grow Houses on the Rise

As a practicing Palm Beach County Criminal lawyer, I have the opportunity to read search warrant affidavits on a regular basis. Recently, some affidavits that I have read, show an increase use of thermal imaging, by the Palm Beach County Sheriff’s helicopters, to detect suspected marijuana grow houses. The use of the Palm Beach County Sheriff’s helicopter can view the home through a thermal imager, a passive, non-intrusive device that measures heat in the infrared range. A thermal imager detects minute differences in temperature on the surface of objects and displays that information visually. The deputy sheriff can then determine though their training and expertise, whether or not the residency is emitting an inordinate amount of heat through its roof, floors or walls; with this information they can conclude that it is consistent with an indoor growing operation.

As most growers and law enforcement officers known, growing marijuana under a light system generates excess heat because of the use of artificial lights. Based upon information gained from the thermal imager and sometimes then from other sources like garbage pulls, manual surveillance, following or tailing the occupants of the suspected grow house and other such type of investigative tools the Palm Beach County Sheriff can obtained a search warrant for the suspected grow house.

The issue for the practicing criminal defense lawyer is to first ask whether or notsurveillance of a suspected grow house using a thermal imager constitutes a search under the Fourth Amendment? The answer more than likely No. This is because, the courts have consistently ruled that a person does not have a subjective nor an objective expectation of privacy in the heat vented from his or her home. Therefore, more than likely the use of thermal imagery does not constitute an impermissible search through the use of a helicopter mounted with an “FLIR” or forward looking infrared device.

The touchstone for cases regarding thermal imaging is whether the alleged search violated the suspected marijuana grower’s legitimate expectations of privacy. Establishing a legitimate expectation of privacy is “a twofold requirement, first that a person have exhibited an actual subjective expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S. 347 (U.S. 1967).

The Appellate Courts, and specifically the United State Supreme Court, have continuously reasoned that what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection and heat emitting from the artificial lights to grow marijuana is no different. Growers will likely try to blow the heat generated from the grow lights outside of the grow house. This expelling of heat through the use of fans in the grow house windows, holes cut in the floor or ceiling of a grow house, air conditioning units installed in certain rooms of a grow house all will expel the heat from the house. The courts have reasoned this expelling of heat outside the grow house is not “private” under the Fourth Amendment of the United State Constitution and is therefore not subject to an expectation of privacy, for which the detection by law enforcement should be suppressed. See United States of America v. Jerry Ford, 34 F. 3rd 992 (11th Cir. 1994).

What about the fact that a helicopter flying above a citizen’s home is intrusive, in that under the theory of land ownership from John Locke the homeowner owns from the heavens to hell? Because after all the issue here is the “home” and not an automobile, a motel room, luggage at an airport or a bag being carried in public; but the actual structure mention and contained within the Fourth Amendment of the United States Constitution wherein it states:  “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

As the courts have pointed out, and as society has made clear, the home is “sacred in Fourth Amendment terms” and it is “our castle” in the later, so the privacy activities that take place within it must be protected. See Justice Burger in his opinion in Segura v. United States, 468 U.S. 796 (1984). However, the recent dilution of the U.S. Constitution by weak judges, who normally matriculate from prosecutor to judge, has dealt the privacy rights of all land owners a blow with the recent decisions that craved away at the 4th Amendment of the U.S. Constitution.

The abusive courts however, that seek to reduce our rights to privacy, have concluded that the heat coming out of the home has no right to privacy as it is outside or emanating from the home. However, the argument should focus on the fact that law enforcement officers, like the Palm Beach County Sheriffs and their Helicopters, should have at least formed “reasonable suspicion” before they use helicopters and thermal imaging on the sanctity of the home, which is not shown in most if not all thermal imaging cases and search warrants regarding grow houses.

So, if you suspect that you are being targeted by law enforcement or the Palm Beach County Sheriff’s Office through the use of a helicopter hovering over your home, which one should find unusual, especially because it usually occurs at night, then you need to contact Palm Beach Criminal Defense Attorney Andrew D. Stine. West Palm Beach Criminal Lawyer, Andrew D. Stine, has been fighting for his clients suspected to be involved in grow house cases for over 10 years in Palm Beach County and throughout Florida. Hire Stine or Do the Time.

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