SUPREME COURT PUTS FLIR BACK IN THE AIR FOR COPS

If you're sitting in your bathtub and you hear the sound of a
helicopter overhead, relax.

The cops can't see inside your house.

Police forces looking to put an end to marijuana grow operations by
using the latest infrared technology got a major boost from the
Supreme Court of Canada last spring when it ruled the thermal-imaging
device FLIR doesn't violate privacy.

Sgt. Rick Barnum, of the OPP's Drug Enforcement Unit, said that while
the news is good for police, the OPP routinely proceed under a search
warrant in drug investigations.

"It's great news in that the courts are on our side in this, and we're
excited about that," he said. "But we get a search warrant in these
investigations anyway. FLIR is used under a warrant whenever we need
it [the technology]."

The officer was part of the team that busted a $3 million
pot-processing operation near Coboconk Oct.7. Nineteen people were
arrested in connection with the raid.

FLIR, which stands for Forward Looking Infrared Radar, is a
thermal-imaging camera mostly used in helicopter searches to detect
marijuana grow ops. Using heat sensors instead of light, FLIR records
images of thermal energy and heat radiating from a building.

The use of the technology was called into question in a recent court
case when the RCMP used FLIR while flying over the house of a man
suspected of growing marijuana. Using FLIR results, the police
obtained a search warrant for the house, and seized marijuana, scales
and weapons during the raid.

In the case, R. vs Tessling, the accused, Walter Tessling was
convicted of weapons and drug offences but the Ontario Court of Appeal
overturned that conviction, ruling that using FLIR amounted to a
search and required a warrant.

The judge ruled that Tessling's privacy was invaded because, in her
words, FLIR was able to reveal what was going on inside the home that
couldn't be detected from outside.

Not so, said the Supreme Court.

The Crown successfully appealed to the Supreme Court, which restored
the conviction and ruled on the police use of FLIR.

FLIR, as it currently exists is not capable of 'seeing' inside a
building; it records only information outside. In the Court's view,
that is exposed to the public, no different than what anyone can see
outside a home or business.

Because of that, Justice Binnie of the Supreme Court ruled using FLIR
is not an invasion of privacy. The judge held that although the
sanctity of a person's home "must be afforded the utmost of protection
from the prying eyes of the State," thermal imaging as it currently
exists does not reveal what's going on behind closed doors.

In short, FLIR can't tell police the precise activity that is causing
heat to emanate from the source.

FLIR is not X-ray technology. It merely measures heat patterns. But as
the jurists have cautioned, any change in the technology which would
permit FLIR to be used as a 'spy' camera, would require immediate
changes to the laws governing its use.

Sgt. Barnum said most drug investigations carried out by the OPP come
initially from the public's tips and information gathered by police
without FLIR.

"We don't take the helicopter out and go 'hunting,' he said. "It's a
pretty expensive resource. Usually, we get tips and information on
grow operations, often from the public and then we proceed with the
warrant. We use the helicopter and FLIR to search a large area, for
example if we receive information that a number of houses in an area
are showing suspicious activity. We would use FLIR to cover a large
area in that case."

Asked if the public equates the police helicopter with the use of
FLIR, Sgt. Barnum said that although that's what FLIR is for, people
remain the police's best resources.

"If I have a [citizen] tell me he was in a suspect's house and saw a
whole bunch of marijuana plants, I don't need to go get the
helicopter," he said. "We get a lot of help from the public.

The good news for us in the court ruling is that we don't have to get
a special warrant to use FLIR. People think we can see right inside
their houses; that's not the case. It's a tool, actually quite similar
to a radar gun used on the highway. That measures speed, FLIR measures
heat. But it's certainly good for police that the courts are
recognizing [the tools] we need for the job."