COURT SHOOTS DOWN EVIDENCE OBTAINED BY INFRARED EYE IN THE SKY

Privacy Rights Trump Police War On Marijuana Growers, Judge Rules

TORONTO -- The Ontario Court of Appeal ruled yesterday that the privacy
protections in the Charter of Rights require police to obtain a search
warrant before using infrared aerial cameras during investigations of
marijuana grow operations.

The appeal court overturned a lower court conviction and ordered an
acquittal for Walter Tessling, who was sentenced to 18 months in jail after
the RCMP seized marijuana from his home near Windsor, Ont.

"This is a significant decision," said Mr. Tessling's lawyer, Frank Miller.
"What it does is raise the protection of privacy for everyone. Any kind of
intrusive technology is going to be looked at very carefully by the courts."

Forward Looking Infra-Red (FLIR) aerial cameras are widely used by law
enforcement agencies across North America. The cameras can detect internal
heat patterns and they are used in marijuana investigations because the
lights used in grow operations give off an unusual amount of heat.

James Leising, the federal Justice Department's director of criminal
prosecutions in Ontario, argued that the cameras are merely surveillance
tools and do not amount to a search as defined by Section 8 of the charter.

That position was rejected by Justice Rosalie Abella, who wrote the
decision for the three-judge panel, which included Justice Dennis O'Connor
and Justice Robert Sharpe.

"FLIR technology discloses more information about what goes on inside a
house than is detectable by normal observation or surveillance. In my view,
there is an important distinction between observations that are made by the
naked eye or even by the use of enhanced aids, such as binoculars, which
are in common use, and observations which are the product of technology,"
Judge Abella wrote.

Very few courts in Canada have ruled on this issue. But in the Ontario
Court of Appeal decision, Judge Abella noted that the United States Supreme
Court also found that police use of thermal cameras without a search
warrant was unconstitutional.

"Obtaining by sense-enhancing technology any information regarding the
interior of the home that could not otherwise have been obtained without
physical intrusion into a constitutionally protected area ... constitutes a
search," wrote Justice Antonin Scalia in the U.S. decision.

Judge Abella stressed that the court was not suggesting there should be a
ban on using the technology in marijuana investigations. However, there
must be "prior judicial authorization to protect individuals from
unwarranted state intrusion on their reasonably held expectations of
privacy," she wrote.

In its investigation, the RCMP failed to find enough evidence to obtain a
warrant to search Mr. Tessling's home through the use of hydro records,
informants or normal surveillance activities.

A second judge issued a search warrant because of information gathered
during an aerial search of the property with a FLIR camera.

The court of appeal said the violation of privacy rights was sufficiently
serious to exclude the police evidence.

"As between the right of an individual to be assured of protection from the
state's unwarranted invasion of privacy in the home, and the state's right
to intrude on that privacy to catch marijuana growers, I see public
confidence being enhanced more by excluding, rather than admitting, the
marijuana evidence in issue," Judge Abella wrote.