Deutsch

This case presents the question of whether a warrantless scan made with a thermal imaging device of a private dwelling constitutes an unreasonable search within the meaning of the Fourth Amendment to the United States Constitution. We hold that it does.

Defendant, Dorian Deutsch, pleaded no contest to a single count of furnishing a room in a building for the cultivation of marijuana (Health & Saf. Code, § 11366.5). On appeal she contends that the trial court erred in denying her motion to suppress evidence which was seized in a search made with a warrant issued in part upon the basis of the thermal imager scan of her home. (Pen. Code, § 1538.5.) That evidence included some 200 cannabis plants which were being cultivated hydroponically under high wattage lights in 2 walled-off portions of the home’s garage.

According to the police officer’s affidavit offered in support of the search warrant a confidential informant gave a friend a ride to defendant’s home. When they arrived defendant gave the informant a small amount of dried marijuana as a thank you. The informant did not report seeing any growing cannabis plants inside the home, but did note that two doors in the…

I concur with the result reached by my colleagues but respectfully disagree with their conclusion that the thermal scan of defendant’s roof constituted an unreasonable search prohibited by the Fourth Amendment.

My colleagues acknowledge that the view they adopt is a minority view but assert that it is “better reasoned.” It is not. To date, four circuit courts of appeal have reached the conclusion that warrantless thermal scans do not violate the Fourth Amendment. (U.S. v. Ishmael (5th Cir. 1995) 48 F.3d 850 ; U.S. v. Pinson (8th Cir. 1994) 24 F.3d 1056 ; U.S. v. Myers (7th Cir. 1995) 46 F.3d 668 ; U.S. v. Ford (11th Cir. 1994) 34 F.3d 992 ; and U.S. v. Robinson (11th Cir. 1995) 62 F.3d 1325 .) Only one Circuit Court of Appeal has adopted the majority’s view, and that circuit has agreed to reconsider its determination. (U.S. v. Cusumano (10th Cir. 1995) 67 F.3d 1497 , rehg. granted Dec. 5, 1995.) The Tenth Circuit’s choice to grant a rehearing in Cusumano leaves one federal trial court (U.S. v. Field (W.D.Wis. 1994) 855 F. Supp. 1518 ) and one state court (State v. Young (1994) 123 Wn.2d 173 [ 867 P.2d 593 ]) which have reached the same conclusion as the majority. 1

The majority…

[Opinion certified for partial publication. [*] ]

OPINION

POCHE, J.

This case presents the question of whether a warrantless scan made with a thermal imaging device of a private dwelling constitutes an unreasonable search within the meaning of the Fourth Amendment to the United States Constitution. We hold that it does.

Defendant, Dorian Deutsch, pleaded no contest to a single count of furnishing a room in a building for the cultivation of marijuana (Health & Saf. Code, § 11366.5). On appeal she contends that the trial court erred in denying her motion to suppress evidence which was seized in a search made with a warrant issued in part upon the basis of the thermal imager scan of her home. (Pen. Code, § 1538.5.) That evidence included some 200 cannabis plants which were being cultivated hydroponically under high wattage lights in 2 walled-off portions of the home's garage.

According to the police officer's affidavit offered in support of the search warrant a confidential informant gave a friend a ride to defendant's home. When they arrived defendant gave the informant a small amount of dried marijuana as a thank you. The informant did not report seeing any growing cannabis…