HIGH COURT FINDS EXPECTATION OF PRIVACY IN ‘HEAT WASTE'

A police officer's warrantless use of an infrared thermal imaging device
violated an Erie County man's constitutional rights under the Fourth
Amendment to the U.S. Constitution, the state Supreme Court has ruled.

In a case of first impression, the high court ruled that use of a thermal
imager is an invasion of privacy.

The Supreme Court acknowledged the instant case was similar to cases where
police search discarded trash without a warrant or use drug-sniffing dogs
without a warrant. The U.S. Supreme Court has found those types of searches
legal.

But the state Supreme Court said that the use of a thermal imaging device
was different.

"The thermal imaging device, unlike the trained drug dog, does not have the
ability to distinguish between legal and illegal activities occurring within
the home based upon the amount of extraneous heat detected," Justice Stephen
A. Zappala wrote for the majority in Commonwealth v. Gindlesperger, PICS
Case No. 99-2374 (Pa. Dec. 23, 1999) Zappala, J.; Nigro, J., concurring;
Castille, J., dissenting (17 pages).

"‘In this respect, [use of the thermal imager] is the very antithesis of a
dog sniff because the trained narcotics dog alerts only in the presence of
contraband whereas the thermal imager indiscriminately registers all sources
of heat,'" Zappala wrote citing California caselaw.

The opinion noted there is a division throughout the country on the issue of
the warrantless use of thermal imaging devices to search a person's home.

The high court was no different.

Justice Russell M. Nigro concurred in the result without filing a separate
opinion. Justice Ronald D. Castille filed a separate dissenting opinion,
where he said that the use of thermal devices was no different than a police
officer using binoculars -- specifically, he said, the device only magnifies
what can be observed legally.

Pot Plants

In 1994, a confidential informant told Erie County Mobile Drug Task Force
Officer Gerald Pfadt that Gregory Gindlesperger was growing marijuana at his
home.

The informant also told the officer that Gindlesperger was using artificial
lights to provide heat and light for the plants to grow.

A member of the Pennsylvania Army National Guard Drug Force joined local
officers in using a thermal imaging device known as a "WASP" device to scan
Gindlesperger's home. The device would show if any "noticeable amounts of
extraneous heat" were present in the home.

The device showed that there was an inexplicable heat source in the basement
that was not consistent with a furnace or other home-heating source.

A search warrant based on the results of the thermal imaging scan of the
house was then issued to search Gindlesperger's home and on April 19, 1994,
officers confiscated 21 marijuana plants.

Gindlesperger was arrested on drug charges, and the trial court denied his
motion to suppress the fruits of the search. After a bench trial,
Gindlesperger was convicted on all charges.

Gindlesperger appealed the trial court's decision to allow the evidence. The
Superior Court sided with him, finding that the use of the WASP device was a
violation of the Fourth Amendment to the U.S. Constitution.

Constitutional Rights

The commonwealth appealed the Superior Court's decision to the Supreme
Court.

Throughout the proceedings, Gindlesperger preserved a state constitutional
claim under Article 1, Section 8. That section of the state constitution has
greater protections than the Fourth Amendment, so if the court were to find
a violation of the Fourth Amendment, it would effectively find a violation
of that section of the state constitution.

On appeal, the commonwealth argued the search was constitutional because
"one does not have a subjective expectation of privacy in the ‘heat waste'
that emanates from one's residence."

Courts that have upheld the use of thermal imaging devices using the "heat
waste" theory ruled that the thermal imager is "a passive device" which is
used off the premises and does not intrude on the interior of the house.

But courts that have found the use of the device to be "constitutionally
repugnant" have ruled that thermal imagers "reveal intimate details
regarding activities occurring within the sanctity of the home, the place
deserving the utmost protection."

The court said Gindlesperger met the test enunciated in the U.S. Supreme
Court case, Katz v. United States, in that he had a "legitimate expectation
of privacy" in the heat sources throughout his home.

The court then determined that the use of the WASP device "revealed critical
information regarding the interior of the premises that could not have
otherwise been obtained."

Accordingly, the court affirmed the Superior Court's decision finding the
search unconstitutional under the U.S. Constitution.

Dissent

In his dissent, Castille said that Gindlesperger did not have a reasonable
expectation of privacy in the heat sources in his home.

Castille said the use of the imager simply enhanced what police were able to
observe legally.

"Escaping or vented heat from a home is not the type of personal effect
protected by the Fourth Amendment or Article 1, Section 8 of the
Pennsylvania Constitution," Castille wrote. "Rather, it is simply another
form of waste product emitted from a home that is of the same type that the
United States Supreme Court has held is not protected by the Fourth
Amendment."

He said the device did not randomly scan an entire neighborhood, but rather
one home to confirm information the confidential source told the police.