On the other side, 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 the grainy video they obtained shows heat given off by grow lights and energy consumption that was greater than neighboring homes. The images provided them with probable cause to get a second search warrant to enter James Brundige’s Club Drive 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 since 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 since they had already 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.
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 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.