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 dismisses the thinking of the Fifth, Seventh, Eighth, and Eleventh Circuits by pointing out that one district court opinion (U.S. v. Penny-Feeney (D.Hawaii 1991) 773 F.Supp. 220, affd. on other grounds in *1234U.S. v. Feeney (9th Cir. 1993) 984 F.2d 1053) and two circuit courts of appeal opinions (U.S. v. Ford, supra, 34 F.3d 992 and U.S. v. Myers, supra, 46 F.3d 668) purportedly referred to the heat emanating from the homes in question as “ ‘heat waste’ ” and arguing that such a characterization is “neither good law nor good physics.” The majority then argues, in essence, that heat “waste” emanating from a home is not analogous to “garbage can” cases (see California v. Greenwood (1987) 486 U.S. 35, 40 [100 L.Ed.2d 30, 36-37, 108 S.Ct. 1625]) in which it has been determined that persons placing their garbage on public streets renounce all expectation of privacy in the contents of their garbage bins.
The majority’s dismissal of the Penny-Feeney, Ford, and Myers cases misses a key factual distinction between those cases and the one at bench. In the three noted cases, the thermal imaging devices discovered heat being intentionally discharged by marijuana growers through vents. Thus, in each of those cases, the analogy between the venting of heat (or heat waste) and the discarding of garbage was apropos. Put another way, in none of those cases could the defendants have subjectively or reasonably have had an expectation of privacy when they vented the excess heat from their growing operations into the atmosphere.
When the Eleventh Circuit confronted the identical situation we face in the case at bench—the use of a thermal scan to discern heat differentials where the defendant did not intentionally vent the heat into the atmosphere —the court adopted a different approach. (U.S. v. Robinson, supra, 62 F.3d at pp. 1328-1330.) In doing so, the Eleventh Circuit specifically addressed and distinguished its earlier decision in U.S. v. Ford, supra, 34 F.2d 992. It is the Robinson analysis which I believe properly addresses the Fourth Amendment issue in the case at bench, an analysis that deserves serious consideration:
“The Fourth Amendment provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’ U.S. Const, amend. IV. In United States v. Ford, 34 F.3d 992 (11th Cir.1994), we held that the ground surveillance of an unoccupied mobile home on leased land with a thermal infrared heat detector did not violate the Fourth Amendment. Three other circuits also have concluded that thermal infrared surveillance or FLIR [Forward Looking Infrared Receiver] is not an unconstitutional search. United States v. Ishmael, 48 F.3d 850 (5th Cir. 1995); United States v. Myers, 46 F.3d 668 (7th Cir. 1995); United States v. Pinson, 24 F.3d 1056 (8th Cir.), cert, denied, _ U.S. _, 115 S.Ct. 664, 130 L.Ed.2d 598 (1994). Robinson argues that this case is distinguished from Ford because it involves an *1235occupied home, which specifically implicates the Fourth Amendment. As we explain, our Ford analysis also applies to the aerial FLIR surveillance of Robinson’s home.
“In Ford, we recognized that a party alleging an unconstitutional search under the Fourth Amendment must establish both a subjective and an objective expectation of privacy to succeed. Ford, 34 F.3d at 995 (citing Katz v. United States, 389 U.S. 347, 361 . . . (1967) (Harlan, J., concurring)). The subjective component requires that a person exhibit an actual expectation of privacy, while the objective component requires that ‘ “the [privacy] expectation be one that society is prepared to recognize as ‘reasonable.’ ” ’ [Citation.] Thus, we must determine whether Robinson had a subjective expectation of privacy that society would recognize as objectively reasonable.
“Our conclusion in Ford that the defendant-appellant held no subjective expectation of privacy turned on his purposefully venting the heat from his marijuana cultivation inside the mobile home with an electric blower through holes drilled in the floor. [Citation.] In contrast to Ford, Robinson did not vent the heat from his marijuana growing operation or deliberately assist the emission of heat in any way. Consequently, we must decide in this case whether inaction can be as revealing regarding the subjective expectation of privacy as action.
“The focal issue is whether Robinson had a subjective expectation of privacy in the heat generated by his indoor marijuana cultivation. We find none. While Robinson attempted to conceal his marijuana growing operation by conducting it inside his home, the record does not indicate that he affirmatively took any action to prevent the resulting heat from being emitted into the atmosphere above his house. The record shows no consideration for the emitted heat whatsoever until his indictment and knowledge of the FLIR surveillance, which measured solely heat expelled into the atmosphere from Robinson’s home. Robinson’s inaction regarding the heat generated from his marijuana cultivation demonstrates his lack of concern for it. Thus, we conclude that Robinson has not established a subjective expectation of privacy in this heat emitted from his home.
“Even if Robinson had demonstrated a subjective expectation of privacy in the heat emitted from his home, he also would have to establish the objective component of the Katz two-part test. Under the objective prong, the proper inquiry is whether the ‘“government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” ’ [Citation.] Therefore, Robinson would have to demonstrate that his privacy *1236expectation in the heat rising from his house would be accepted by society as objectively reasonable.
“In validating the visual inspection of a greenhouse where marijuana was being cultivated within the curtilage of a house, the Supreme Court found that ‘no intimate details connected with the use of the home or curtilage were observed’ during the aerial viewing. Florida v. Riley, 488 U.S. 445, 452 . . . (1989) (emphasis added). FLIR surveillance cannot measure temperature; it ‘merely compare[s] the amount of heat radiated from various objects.’ Pinson, 24 F.3d at 1057. ‘[T]he mere fact that the police have employed relatively sophisticated forms of technological surveillance does not render the surveillance unconstitutional. . . . The crucial inquiry, as in any search and seizure analysis, is whether the technology reveals “intimate details.” ’ Ishmael, 48 F.3d at 855-56 (footnote omitted) (citation omitted) (quoting Dow Chemical Co. v. United States, 476 U.S. 227, 238 . . . (1986)); accord Ford, 34 F.3d at 996; Pinson, 24 F.3d at 1059.
“In this case, the FLIR surveillance revealed only that Robinson’s house emitted significantly more heat than others in the neighborhood of similar size. No revelation of intimate, even definitive, detail within the house was detectable; there was merely a gross, nondiscrete bright image indicating the heat emitted from the residence. Such heat detection with thermal imagery is not the ‘functional equivalent of an X-ray machine in that it allows officers to “see” within a structure what it otherwise cannot see with the naked eye.’ Ishmael, 48 F.3d at 856.
“Moreover, there was no intrusion whatsoever into Robinson’s home because the emitted heat rose from his house and then was measured by the FLIR surveillance. See [U.S. v. Ishmael, supra, 48 F.3d at p. 856] (holding that the ‘manner’ of detecting heat is ‘significant in assessing the reasonableness of the intrusion’). Using infrared surveillance to ascertain heat intensity is analogous to the warrantless use of drug-detecting dogs to locate contraband. [Citation.] Validating FLIR surveillance of a home, the Eight[h] Circuit found that ‘[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.’ Pinson, 24 F.3d at 1058. Because considerable electric lighting resulting in uncommon heat output is associated with indoor marijuana cultivation, unusual heat registered by FLIR surveillance serves as a method of identification.
“Thus, we conclude that ‘[n]one of the interests which form the basis for the need for protection of a residence, namely the intimacy, personal autonomy and privacy associated with a home, are threatened by [FLIR] thermal *1237imagery.’ [U.S. v. Pinson, supra, 24 F.3d] at 1059; see Myers, 46 F.3d at 670 (determining that the thermal surveillance of a home was constitutional, the Seventh Circuit concluded that ‘ [a] thermal imaging scan does not intrude in any way into the privacy and sanctity of a home’). Robinson has failed to establish an objective or reasonable expectation of privacy in the heat emitted from his house resulting from the unlawful marijuana cultivation inside, even if he had met the subjective component of the Katz test. Significantly, we are unconvinced that society ever would accept use of the Fourth Amendment to shield unlawful activity within one’s home when there are noninvasive methods of detecting such criminal activity through legitimate byproducts, such as the heat at issue in this case. We hold that the FLIR surveillance of Robinson’s home was not an unreasonable search violative of the Fourth Amendment.” (U.S. v. Robinson, supra, 62 F.3d at pp. 1328-1330, fits, omitted, original italics.)
The only point discussed by the majority which is not disposed of by Robinson is the argument based on United States v. Karo (1984) 486 U.S. 705 [82 L.Ed.2d 530, 104 S.Ct. 3296] and United States v. Knotts (1983) 460 U.S. 276 [75 L.Ed.2d 55, 103 S.Ct. 1081]. The majority concludes that the lesson to be learned from Karo and Knotts is: “[l]ike the beeper signal being monitored inside the residence in Karo the thermal imaging scan of defendant’s residence told the police something about activities within the house which they could not otherwise have learned without obtaining a warrant to search it.” (Majority opn., ante, at pp. 1230-1231.) In my view, Karo and Knotts support the view that thermal imaging scans do not constitute improper searches under the Fourth Amendment. Unlike the beeper which was introduced into a private residence in Karo, a thermal imaging scan simply does not penetrate the inner sanctum of the home.
In sum, I respectfully believe that the Eleventh Circuit has it right, and the majority here does not.
A petition for a rehearing was denied May 23, 1996, and respondent’s petition for review by the Supreme Court was denied July 24, 1996. Baxter, J., and Chin, J., were of the opinion that the petition should be granted.
The determination by the Washington Supreme Court that the use of a thermal imaging device violates the Fourth Amendment was dictum. The court first determined that thermal screening violates the Washington State Constitution. (State v. Young, supra, 867 P.2d at pp. 595-601.) The court only addressed the Fourth Amendment question “for the purpose of providing guidance to other courts . . . .” (Id. at p. 601.)