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The use of thermal imaging by police to peer into private homes looking for crime has required probable cause for a search warrant since 2001, when the U.S. Supreme Court voiced Fourth Amendment concern about the invasive technology. Now the 8th U.S. Circuit Court of Appeals has lowered the standard for obtaining thermal-imaging search warrants saying, “reasonable suspicion” is adequate for an investigative warrant, rather than the “probable cause” standard required for physical searches. “If the same probable cause is required to obtain both kinds of warrants, law enforcement will have little incentive to incur the expense of a minimally intrusive thermal imaging search before conducting a highly intrusive physical search,” wrote Chief Judge James B. Loken. The ruling in a Minnesota marijuana-cultivation case provides new latitude for prosecutors wanting to use heat-sensing machines to look into homes for initial investigations, despite the Supreme Court’s requirement of a search warrant for thermal searches in Kyllo v. U.S., 533 U.S. 27 (2001). “We are preparing a petition for rehearing en banc,” said defense attorney Gary Bryant-Wolf, a solo practitioner in Minneapolis. He called the decision “a very weak legal position,” and “squarely at odds with precedent of the Supreme Court, the 4th Circuit and the 9th Circuit.” Minnesota U.S. Attorney Rachel Paulose declined to comment on the opinion in U.S. v. Kattaria, 2007 WL 2892927. “It is a dishonest opinion,” said Kenneth Lerner, the Portland, Ore., defense lawyer who prevailed in the Supreme Court’s 2001 Kyllo decision. “They have gratuitously set a lower standard.” Lerner said the cases cited by the 8th Circuit involve administrative search warrants used by regulators in licensing or building inspectors, which require less than probable cause because no crime is suspected. The panel also cited a New Jersey school case where discipline needs were balanced against searches. “I think when the Supreme Court said this was a Fourth Amendment issue, it was assumed that [police] had to go through the probable cause equation,” Lerner said. The panel decision held that the same Fourth Amendment “reasonable suspicion” standard that applies to police investigative traffic stops, known as “Terry” stops, “should apply to the issuance of a purely investigative warrant to conduct a limited thermal imaging search from well outside the home.” Bryant-Wolf said, “No court, to my knowledge, has ever approved such a search warrant on a Terry-stop standard.” This was not an administrative warrant, but one sought in a criminal context. Dismisses ‘Higgins’ Although Loken made a passing reference in a footnote to a 9th Circuit decision holding that probable cause is necessary to justify both thermal imaging searches and a physical search, he dismissed that contrary view as having “little analysis.” U.S. v. Huggins, 299 F.3d 1039 (9th Cir. 2002). The 8th Circuit panel held that thermal imaging “provides important corroboration that criminal activity is likely being conducted in a home before the homeowner is subjected to a full physical search.” Mohammed Ahmed Kattaria pleaded guilty to conspiracy to manufacture, distribute and possess more than 50 marijuana plants in Lauderdale, Minn., in 2004. He challenged the search warrant issued for investigative thermal imaging of his home, arguing it was based on insufficient probable cause. The police information was based on an informant who said he had seen Kattaria growing marijuana two years earlier. In addition, police checked his utility bills and found power use higher than the average in the neighborhood. Police then used the thermal-imagining results to obtain a warrant for a physical search.

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