Kirsch, J.
After law enforcement officers followed up on a tip from CrimeStoppers, they requested a warrant to use thermal imaging technology to gain additional evidence to confirm whether an active indoor marijuana grow operation existed at the location designated in the tip. The warrant was granted and the results of the imaging showed higher than normal heat signatures emanating from an upstairs area of the house at that address. Officers requested a search warrant for the premises based on evidence presented in both search warrant applications.
The dispositive question here is whether the evidence presented with respect to the first search warrant application sufficiently established probable cause to support further investigation. We reverse and remand.
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We begin our discussion by acknowledging the extreme care used by the law enforcement officers in this case in their attempts to adhere to proper procedures in conducting this investigation. The law related to the use of thermal imaging, like the technology it represents, is dynamic and developing. For example, in this jurisdiction, in a case of first impression, the Seventh Circuit of the United States Court of Appeals held that thermal imaging scanning was not a search within the meaning of the Fourth Amendment, joining the Eighth and Eleventh Circuits in doing so. U.S. v. Myers, 46 F.3d 668, 668 (7th Cir. 1995).
The holding in that case, however, later was abrogated by the United States Supreme Court opinion in Kyllo v. U.S., 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001). In this appeal from the Ninth Circuit, an agent used a thermal imager to detect heat emissions from a home, without first seeking a warrant. …
The U.S. Supreme Court reversed the denial of the motion to suppress the evidence seized after the scanning had occurred stating, “Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” 533 U.S. at 40. The matter was remanded to the district court to determine if the search warrant for the house was supported by probable cause minus the evidence provided by the thermal imaging scanner.
Here, Detective Buckner correctly recognized that the use of the thermal imaging scanner was a search and applied for a warrant to conduct that search. “Generally, to be reasonable, a search must be conducted pursuant to a properly-issued warrant supported by probable cause.” Pinner v. State, 74 N.E.3d 226, 229 (Ind. 2017). …
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McGrath argues with respect to the first warrant that there was insufficient evidence to corroborate the anonymous tip that there was ongoing criminal activity at his house such that search warrants were supported by probable cause. We agree.
Here, Detective Buckner conducted an independent investigation, verifying all details provided by the tipster save for the smell of marijuana emanating from the premises. McGrath, on the other hand, presented photographic evidence that in the area in which he lives, it is not uncommon for houses to have both central air conditioning and independent air conditioning units, due to the age of the houses. McGrath further argued that it was not uncommon for people to have coverings over their windows—drapes, blinds, or blankets—in lower income areas, which he characterizes his as being, in college dorms, or when residents are out of town. McGrath additionally argued that it is not unreasonable for someone to use two diverse styles of light bulbs differing in light strength, noting that many varieties can be purchased in home improvement stores.
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We recognize Detective Buckner’s extensive training and experience in the investigation of illegal drug operations and the magistrate’s understandable deference to that expertise. … However impeccable the training and experience of law enforcement officers in such matters, that training and experience cannot provide a portion of the basis for, or the missing piece needed to establish, probable cause for the issuance of the warrant authorizing the use of a thermal imaging device.
In the present case, Detective Buckner did not corroborate information from the anonymous tipster about criminal activity. The display of lightbulbs differing in intensity or brightness is not criminal activity, nor is covering one’s windows. Further, the use of additional air conditioning units is not criminal activity. What was lacking was corroboration of the distinctive smell of marijuana emanating from the house, which would have provided corroboration of the tip that criminal activity likely was occurring at that location. In short, a detective’s determination that there is a probability that evidence of criminal activity will be found at a particular place based upon his or her training and experience without evidence that corroborates a tip that criminal activity has occurred or is occurring at a particular location, does not establish probable cause for the issuance of a search warrant. …
Clearly, there is a level of respect accorded those who have extensive training in these kinds of investigations. However, there must be evidence of criminal activity presented to the magistrate to establish probable cause to justify the issuance of the warrant. We decide this appeal entirely cognizant of law enforcement’s ultimate finding of a considerable, active, marijuana grow operation, which is in violation of our state laws. Nevertheless, finding that the evidence of probable cause to support a search utilizing a thermal imaging scanner was lacking, we are constrained to reverse McGrath’s conviction.
In light of the foregoing, we reverse and remand the decision of the trial court.
Reversed and remanded.
Crone, J., concurs.
Bradford, J., dissents with separate opinion.
Bradford, Judge, dissenting.
I respectfully disagree with the majority’s disposition of this case. Without reaching the question of probable cause, I believe at the very least that the good faith exception applies to render the evidence collected from McGrath’s residence admissible. Consequently, I respectfully dissent.
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