Com. v. Gindlesperger

743 A.2d 898

560 Pa. 222

COMMONWEALTH of Pennsylvania, Appellant, v. Gregory GINDLESPERGER, Appellee.

Supreme Court of Pennsylvania.

Argued March 9, 1999.

Decided December 22, 1999.

Garrett A. Taylor, Assistant District Attorney, Erie, for appellant.

Elliot J. Segel, Erie, for appellee.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

ZAPPALA Justice.

This appeal presents the first impression question of whether law enforcement agents' use of an infrared thermal imaging device to scan a private residence without obtaining a search warrant constitutes an unlawful search in violation of the Fourth Amendment to the United States Constitution. The Superior Court held that such use does constitute an unlawful search for purposes of the Fourth Amendment. We now affirm.

On April 9, 1994, police officers entered the basement area of Appellee Gregory Gindlesperger's residence pursuant to a search warrant and seized approximately 21 marijuana plants. Probable cause for the search was based, in part, on information provided by a confidential informant (CI) to Officer Gerald Pfadt, a five year veteran of the Erie County Mobile Drug Task Force. The CI told Officer Pfadt that he/she observed marijuana plants growing at Appellee's residence in February of 1994. Officer Pfadt asked the CI to confirm that marijuana was growing in Appellee's basement during the week of February 13, 1994 and the CI did so. In March of 1994, the CI told Officer Pfadt that Appellee was now using artificial lights to facilitate his marijuana growth operation.

Further verification of this tip occurred when Captain Gregory Davis of the Pennsylvania Army National Guard Drug Force, along with local law enforcement, "viewed" Respondent's residence using a thermal imaging device known as a "WASP." Search Warrant and Affidavit of Probable Cause, R. 546a, Paragraph 5. This device is designed to distinguish appreciable and noticeable amounts of extraneous heat. Id. Captain Davis detected "an unexplainable source of heat coming from the basement area that was not consistent with the location of the furnace or other know heat sources." Id.¹

A search warrant was issued for Respondent's home based, in part, on the fact that "[t]his heat source would be consistent with the heat source coming from the artificial lighting used in the growing of marijuana." Id. Officer Pfadt further averred the following in the affidavit of probable cause in support of the search warrant:

[I]ndividuals who grow marijuana in an indoor setting do so in a continuing operation and have plants in various stages of growth so as to be able to have a continuous supply of marijuana to be harvested.

* * *

[T]he CI has provided information to this officer in the past that has been proven reliable and will result in the arrests of individuals for violations of the drug laws.

Id.

Appellee's residence was then searched and police found artificial lighting equipment as well as marijuana plants in the basement. Appellee was arrested and charged with various violations of the Controlled Substance, Drug, Device and Cosmetic Act. Thereafter, Appellee filed a pre-trial motion to suppress the evidence seized during the search of his residence and the trial court denied the motion. A bench trial was conducted on May 30, 1995. Appellee was found guilty of all the charges against him.

On appeal, the Superior Court reversed the trial court's order denying Appellee's suppression motion, holding that the warrantless use of the WASP device violated the Fourth Amendment and that law enforcement's use of the results of the scanning device to obtain a search warrant "was invalid and not a proper basis for issuance of the warrant." Commonwealth v. Gindlesperger, 706 A.2d 1216, 1218 (Pa.Super.1997).²

The Commonwealth maintains that the Superior Court erred in concluding that the warrantless use of the WASP device to scan Appellee's residence constituted a search pursuant to the Fourth Amendment.³ Initially, we note that the Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const. amend. IV. This fundamental right is preserved by a requirement that searches be conducted pursuant to a warrant issued by an independent judicial officer based upon probable cause. California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). The test for establishing what constitutes a search for purposes of the Fourth Amendment was established by the Court in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), requiring that one asserting that an unlawful search has occurred demonstrate, first, an actual, subjective expectation of privacy in that which is searched and second, that this expectation is one our society recognizes to be reasonable. Here, the Commonwealth maintains that the facts of the instant case fail to meet the test articulated by the United States Supreme Court in Katz and, thus, fail to establish that an improper search, requiring a warrant based upon probable cause, occurred. We disagree.

The defendant in Katz was convicted of violating a federal statute prohibiting the interstate transmission of wagering information by telephone. To obtain evidence against Katz, FBI agents attached an electronic listening and recording device to the outside of the public telephone booth from which Katz placed his calls. Katz objected to the use of this evidence at trial contending that it had been illegally obtained in violation of the Fourth Amendment. The Court agreed, holding the government's warrantless use of the electronic listening and recording device to be unconstitutional.

The Court rejected the government's assertion that because the surveillance technique it employed did not involve a physical penetration of the phone booth, the Fourth Amendment was not implicated. The Court concluded that such activity by government agents

violated the privacy upon which [the defendant] justifiably relied while using the telephone booth and thus constituted a `search and seizure' within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.

Id. at 353, 88 S.Ct. 507.⁴

While the United States Supreme Court has not yet ruled on the validity of law enforcement's warrantless use of a thermal imaging device to scan a private residence as occurred in this case, a number of federal circuit courts, district courts and state courts have done so. There is a split among the authorities that have examined the issue. The Seventh, Eighth, Ninth and Eleventh Circuits have upheld the use of thermal imaging devices by law enforcement officials to scan private residences.⁵United States v. Myers, 46 F.3d 668 (7th Cir.1995); United States v. Pinson, 24 F.3d 1056 (8th Cir.1994); United States v. Kyllo, 190 F.3d 1041, 1999 U.S.App. Lexis 21562 (9th Cir.1999). United States v. Ford, 34 F.3d 992 (11th Cir.1994). One district court in the Ninth Circuit has also upheld the warrantless use of these devices. United States v. Penny-Feeney, 773 F.Supp. 220 (D.Hawai'i 1991),affirmed on, other grounds, 984 F.2d 1053 (9th Cir. 1993).

A panel of the Tenth Circuit in United States v. Cusumano, 67 F.3d 1497 (10th Cir.1995), found that the warrantless use of a thermal imager violated the Fourth Amendment. However, that decision was vacated by an en banc court and the case was decided without reaching the constitutional issue. One district court in the Seventh Circuit found such warrantless use to be unconstitutional as did the State Supreme Courts of Montana and Washington and the Court of Appeal of California. United States v. Field, 855 F.Supp. 1518 (W.D.Wis.1994); State v. Siegal, 281 Mont. 250, 934 P.2d 176 (1997); State v. Young, 123 Wash.2d 173, 867 P.2d 593 (1994); People v. Deutsch, 44 Cal.App.4th 1224, 52 Cal.Rptr.2d 366 (1st Dist.1996).

The Commonwealth relies on those cases that have upheld the use of thermal imaging devices based upon the conclusion that one does not have a subjective expectation of privacy in the "heat waste" that emanates from one's residence. In so concluding, these courts have essentially analogized this so called "heat waste" to discarded trash and/or the odor that can be detected by drug sniffing dogs. The Supreme Court has upheld the warrantless search of discarded trash in California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), and the warrantless use of drug sniffing dogs in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). See Ford, 34 F.3d at 997 ("[t]he heat that Ford intentionally vented from his mobile home was a waste byproduct of his marijuana cultivation and is analogous to the inculpatory items that the respondents in Greenwood discarded in their trash...."); Pinson, 24 F.3d at 1058 ("[j]ust as odor escapes a compartment or building and is detected by the sense-enhancing instrument of a canine sniff, so also does heat escape a home and is detected by the sense-enhancing infrared camera").

In upholding the use of such devices, courts adopting the heat waste theory have relied upon the fact that the thermal imager is a passive device, employed from beyond the curtilage, which emits no rays or beams and which does not intrude in any fashion upon the interior of the observed property. Courts have also found significant the fact that the resolution of such a device is limited and, generally, detects only hot spots on the exterior surfaces of a building. The Eleventh Circuit observed that "the thermal imagery at issue here appears to be of such low resolution as to render it incapable of revealing the intimacy of detail and activity protected by the Fourth Amendment." Ford, 34 F.3d at 996. The Pinson court o...