95-419
No. 95-419
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JAMES ROBERT SIEGAL, DOYLE
WAYNE JONES and JAMES JEREMIAH
MCINTYRE,
Defendants and Appellants.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Madison,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William A. Hritsco, Davis, Warren & Hritsco, Dillon,
Montana (Jones); Vincent J. Kozakiewicz, Dillon,
Montana (McIntyre); Andrew P. Suenram, Hoffman
& Suenram, Dillon, Montana (Siegal)
For Respondent:
Joseph P. Mazurek, Attorney General, Chris D.
Tweeten, Assistant Attorney General, Helena,
Montana; Loren Tucker, Madison County Attorney,
Robert Zenker, Deputy Madison County Attorney,Joseph
E. Thaggard, Special Deputy Madison County Attorney,
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Virginia City, Montana
Heard: October 24, 1996
Submitted: November 7, 1996
Decided: March 6, 1997
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
Defendants James Robert Siegal (Siegal), Doyle Wayne Jones
(Jones) and James Jeremiah McIntyre (McIntyre) moved to suppress
the fruits of a search on the ground that the warrantless use of a
thermal imager violated their constitutional rights. In addition,
Jones moved to dismiss the charges against him on the ground that
his Fifth Amendment protection against double jeopardy had been
violated. The District Court for the Fifth Judicial District,
Madison County, denied the motions and Defendants appeal. We
reverse.
Defendants raise the following issues on appeal:
1. Was the warrantless use of a thermal imager an
unconstitutional search?
2. Did the election by the State not to make a videotape of
the results obtained by the thermal imager constitute destruction
of exculpatory evidence?
3. Did sufficient probable cause exist to support the
issuance of a search warrant for Defendants' premises?
4. Did the District Court err in denying Jones' Motion to
Dismiss the criminal proceedings against him on double jeopardy
grounds after the State obtained a judgment against him in a civil
forfeiture action?
Factual and Procedural Background
In October 1993, McIntyre purchased a ten-acre parcel of
property with a ranch house and outbuildings near Waterloo,
Montana. The property is heavily wooded and completely fenced.
McIntyre and Jones occupied the ranch house. They took numerous
steps to insure their privacy including posting the property with
"No Trespassing" signs, painting the fence posts orange,
maintaining perimeter and interior fences and locking the gates.
Shortly after purchasing the property, McIntyre and Jones
constructed a 30-by-70-foot building approximately 126 feet from
the ranch house. On August 25, 1994, members of the Southwest
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Montana Drug Task Force searched the buildings on the property
pursuant to a search warrant issued by the Fifth Judicial District
Court. The search disclosed that the newly constructed building
was being used to grow marijuana.
The Application for Search Warrant states that in the early
morning hours of June 2, 1994, Stanton Hayes, an agent with the
Narcotics Investigation Bureau of the Montana Department of Justice
(NIB), used a thermal imager to measure heat emissions from the
buildings on the property. Hayes had been certified in the use of
the device by the Drug Enforcement Administration (DEA) in October
1993. He conducted the scan from the property of a neighbor, who
had given permission for Hayes to be there, at a vantage point of
about 25 to 30 feet from the grow shed.
The thermal imager showed that the grow shed was discharging
a considerable amount of heat. Hayes determined that the
distribution of heat energy was consistent with the presence of
grow lamps hanging from the ceiling. In contrast, a scan of the
other buildings on the property showed them to be normal in their
heat emissions.
Hayes admitted at the suppression hearing, that he had not
obtained a search warrant to use the thermal imager and that there
were no exigent circumstances at the time which would lead him to
believe that any evidence would dissipate prior to obtaining a
search warrant. Although the thermal imager is capable of making
a videotape, Hayes elected not to do so on this occasion. Hayes
was required to walk a substantial distance in the dark over uneven
terrain, crossing fences and irrigation ditches in order to reach
the vantage point from which he conducted the scan. He stated that
carrying the extra equipment, which weighed almost 20 pounds, would
have created a substantial risk of injury to himself or damage to
the equipment, and he doubted the practicality of wiring up the
videotape in the dark.
On the basis of information obtained from citizen informants,
a sheriff's investigation, and the thermal imaging scan, a search
warrant was issued. The search of the grow shed revealed that it
was divided into three rooms. One room contained a diesel
generator that provided electricity to the building and 23 pounds
of drying marijuana. A second room contained 167 marijuana plants
growing under artificial light. The third room contained 72
mature, budding marijuana plants, also growing under artificial
light. Based on the evidence obtained in the search, warrants
were issued for the arrest of Jones, McIntyre and Siegal.
On August 30, 1994, Jones, McIntyre and Siegal were charged by
information with Criminal Possession with Intent to Sell, a felony,
in violation of 45-9-103, MCA, and Criminal Production or
Manufacture of Dangerous Drugs, a felony, in violation of 45-9-
110, MCA. All three Defendants appeared for an initial appearance,
received court-appointed counsel, and subsequently pleaded not
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guilty. In November and December 1994, all three Defendants filed
motions to suppress the fruits of the search on the ground that the
warrantless use of the thermal imager violated their rights under
the Fourth Amendment to the United States Constitution and Article
II, Sections 10 and 11 of the Montana Constitution.
A hearing on Defendants' motions to suppress was held on
January 10, 1995, wherein the District Court heard testimony from
expert witnesses regarding the use of the thermal imager. On March
23, 1995, the court issued its Findings of Fact, Conclusions of Law
and Order denying Defendants' motions.
In addition to the criminal charges filed against Defendants,
on September 1, 1994, the State filed a civil forfeiture action
against real and personal property seized from Defendants. The
State contended that every item seized pursuant to the search
warrant issued in the criminal proceeding was used, or intended for
use, in the commission of, or to facilitate the commission of, a
violation of Title 45, Chapter 9, Montana Code Annotated. In its
prayer for relief, the State requested that the District Court
enter a judgment forfeiting the property to the Madison County
Sheriff's Department and the NIB in the event Defendants failed to
respond to the petition and a default might be entered.
On September 30, 1994, the State filed a Motion for Partial
Forfeiture of Respondent Properties and a supporting brief stating
that neither Jones nor Siegal had responded within the allotted
time. Thus the State requested that the court enter an order of
forfeiture against Jones and Siegal granting all of their right,
title and interest in the properties to the State. The District
Court signed an order to that effect on October 7, 1994. On
October 18, 1994, the State filed an Amended Petition to Institute
Forfeiture Proceedings, in an effort to include additional
property.
On April 18, 1995, the State filed a Motion to Dismiss the
civil forfeiture action. The State gave no reason for its Motion
to Dismiss before obtaining an ex parte Order granting the
dismissal. In a subsequent telephone conversation with defense
counsel, a Deputy County Attorney for Madison County acknowledged
that the State had concluded that to pursue both the civil
forfeiture action and the criminal action would constitute double
jeopardy.
Jones filed a Motion to Dismiss the criminal charges against
him on April 25, 1995, based upon the theory that the State had
already punished him in the civil forfeiture action and that
further proceedings in the criminal action were barred by the
double jeopardy clause's prohibition of multiple punishments for a
single offense. The District Court summarily denied Jones'
motion.
On June 20, 1995, both Jones and McIntyre withdrew their not
guilty pleas and pleaded guilty to the charges against them. They
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each signed an Acknowledgment of Waiver of Rights wherein they
reserved the right to appeal the denial of their Motions to
Suppress and, in Jones' case, his Motion to Dismiss as well. Both
Jones and McIntyre were sentenced to 10 years at Montana State
Prison and ordered to pay restitution in the amount of $10,000,
however, the District Court stayed execution of their sentences
pending appeal.
On July 25, 1995, Siegal withdrew his not guilty plea and,
pursuant to an agreement with the State, entered a plea of guilty
to the charge of Criminal Production or Manufacture of Dangerous
Drugs. The State dismissed the other charge against him and he was
given 6 years deferred imposition of sentence. In his
Acknowledgment of Waiver of Rights, Siegal also reserved the right
to appeal the denial of his Motion to Suppress.
Standard of Review
The standard of review of a district court's denial of a
motion to suppress is whether the court's findings of fact are
clearly erroneous and whether those findings were correctly applied
as a matter of law. State v. Williams (1995), 273 Mont. 459, 462,
904 P.2d 1019, 1021 (citing State v. Flack (1993), 260 Mont. 181,
188, 860 P.2d 89, 94).
Issue 1.
Was the warrantless use of a thermal imager an
unconstitutional search?
The legal question which we address in this case is whether
law enforcement authorities may utilize thermal imaging technology
to observe a structure suspected of concealing an indoor marijuana
growing operation without first obtaining a search warrant. In
other words, may law enforcement utilize warrantless thermal
imaging of a structure to gather information and probable cause for
the later issuance of a search warrant, or does the use of thermal
imaging technology to gather information about the activities
inside a structure itself constitute a search which can be
accomplished only with judicial oversight and following the
issuance of a search warrant?
We conclude that the use of thermal imaging in the context of
a criminal investigation constitutes a search under Article II,
Section 11 of the Montana Constitution. Moreover, we conclude that
the privacy interests uniquely protected by Article II, Section 10
of the Montana Constitution are also implicated by the use of
thermal imaging in the context of a criminal investigation and that
the use of this technology by the government, in the absence of a
search warrant, requires the demonstration of a compelling state
interest other than enforcement of the criminal laws.
Thermal Imaging Technology
Indoor marijuana growing operations utilize incandescent heat
lamps to mimic the sunþs radiation. While structures concealing
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this sort of activity may appear no different to the naked eye than
other structures, indoor marijuana growing operations typically
generate substantial amounts of heat and, hence, infrared
radiation, which, with the proper technology, can be detected from
outside the structure. It is the warrantless use of this
technology in the investigation of one such operation that concerns
us here.
A discussion of the basic physical properties of infrared
radiation and of the present capabilities of infrared imaging
devices is necessary to understanding our decision in this case.
Infrared radiation is a form of electromagnetic radiation and is
subject to the same physical laws as visible light, radio waves and
x-rays. Infrared radiation is produced by any object which emits
heat. Any object with a temperature above absolute zero (0øK or -
273øC) will emit heat, and, thus, infrared radiation. An object
does not have to be "hot" to emit infrared radiation; even cold
objects, such as ice cubes, or heavily insulated objects emit heat.
However, the hotter the object, the more heat it produces and,
hence, the more infrared radiation the object emits.
While visible light is perceived by the human eye, usually
unaided, infrared radiation, because of its longer wavelength, is
invisible and cannot be "seen" without the aid of a device,
commonly known as a thermal imager, an infrared imager or Forward
Looking Infra-Red Radar (F.L.I.R.). This device is not unlike an
ordinary home video camera. Once directed toward the object to be
scanned, the thermal imager collects infrared radiation emitted by
the object, translates the radiant signal first into an electrical
signal and then into a visual image and, finally, displays the
image in the imager itself or on a commercial TV monitor. The
displayed image can also be recorded on a standard VCR. Warmer
images appear lighter on the display and typically the imager is
capable of electronically enhancing or reducing features and
assigning colors to different temperature levels. Some imagers are
capable of registering temperature differences as little as 0.1øC.
The thermal imager does not itself, emit beams or rays, but only
passively collects infrared radiation emitted by the object being
observed.
When used in the investigation of a suspected marijuana
growing operation, thermal imaging of a structure is usually done
at night to avoid the interference of the sun. Typically, before
scanning the suspected structure, the operator will image
neighboring structures to determine how much radiation is being
emitted from those under the climatic conditions present. A
structure concealing an active marijuana growing operation will
generally exhibit a heat profile or signature substantially
different than nearby structures which do not house this sort of
activity. Thermal imaging of suspected and non-suspected structures
alike, can be accomplished unobtrusively either from the ground or
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from the air at some distance from the structure being observed.
At present, thermal imagers do not "see through walls" or
produce a distinct image of a person, object or activity within a
structure, unless, for example, a person has his body pressed
against a window. Rather, thermal imaging will reveal that an
enclosed structure contains a source of heat and the relative
quantity of heat being produced. Thermal imaging does not
differentiate between a heat source produced by a legal activity--a
green house for African Violets, or an indoor hot tub, for
example,--or one produced by an illegal activity such as growing
marijuana. While choice of building materials and insulation will
slow infrared emissions from the inside of a structure, as long as
the atmosphere surrounding a structure is cooler than its interior,
the laws of thermodynamics dictate that heat will inevitably be
transferred to the atmosphere and that this energy cannot be
contained indefinitely.
Thus, law enforcement authorities use thermal imaging
inferentially to provide information as to the activity on-going in
a particular structure. A structure concealing a marijuana growing
operation may have an unusual heat profile compared to neighboring
structures. While such a profile may be consistent with an indoor
marijuana growing operation, it is not necessarily proof of one.
Legal Analysis
As the State correctly points out, most of the courts that
have addressed the use of thermal imaging in the investigation of
marijuana growing operations have held that the warrantless use of
such technology does not violate the Fourth Amendment. These
courts have uniformly relied on the two-tiered analysis proposed by
Justice Harlan in his concurrence to the majority opinion in Katz
v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d
576, to determine the constitutionality of warrantless thermal
imaging.
The defendant in Katz was convicted of a violation of a
federal statute prohibiting the interstate transmission of wagering
information by telephone. To obtain evidence against the
defendant, FBI agents attached an electronic listening and
recording device to the outside of the public telephone booth from
which the defendant placed his calls. The defendant objected to
the use of this evidence at his trial contending that it had been
obtained in violation of the Fourth Amendment.
In declaring the Government's warrantless use of the
electronic listening and recording device unconstitutional, the
United States Supreme Court stated:
What a person knowingly exposes to the public, even in
his own home or office, is not a subject of Fourth
Amendment protection. [Citations omitted.] But what he
seeks to preserve as private, even in an area accessible
to the public, may be constitutionally protected.
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[Citations omitted.]
Katz, 389 U.S. at 351, 88 S.Ct. at 511, 19 L.Ed.2d at 582.
The Court was unpersuaded by the Government's contention that
the Fourth Amendment was not implicated in this case since the
surveillance technique it employed did not involve a physical
penetration of the telephone booth. The Court concluded that the
Government's activities "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." Katz, 389 U.S. at 353, 88 S.Ct. at 512, 19
L.Ed.2d at 583.
In concurring with the majority opinion, Justice Harlan
summarized the rule that has emerged from Katz and from prior
decisions as requiring, "first that a person have exhibited an
actual (subjective) expectation of privacy and, second, that the
expectation be one that society is prepared to recognize as
'reasonable.'" Katz, 389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed.2d
at 588.
The Court adopted this two-prong test from Justice Harlan's
concurrence in Katz in its decision in Smith v. Maryland (1979),
442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220. In Smith, a woman
began receiving threatening and obscene telephone calls from a man
who identified himself as the person who had recently robbed her.
After tracing the license plate number of a car matching the
description of the robber's vehicle to Smith, the police requested
that the telephone company install a pen register to record the
numbers dialed from Smith's home telephone. The police did not
obtain a warrant or a court order before making the request.
When the pen register revealed that Smith was placing calls to
the woman, the police used this and other information to obtain a
warrant to search Smith's residence. The search revealed that a
page in Smith's phone book was turned to the woman's name and
number.
Smith sought to suppress all evidence derived from the use of
the pen register on the ground that the police had failed to secure
a warrant before using the device. The trial court denied the
suppression motion and Smith was convicted. The Maryland Court of
Appeals affirmed Smith's conviction.
The United States Supreme Court affirmed the decisions of the
lower courts and stated that
the application of the Fourth Amendment depends on
whether the person invoking its protection can claim a
"justifiable," a "reasonable," or a "legitimate
expectation of privacy" that has been invaded by
government action.
Smith, 442 U.S. at 740, 99 S.Ct. at 2580, 61 L.Ed.2d at 226
(citations omitted).
The Court concluded that Smith did not entertain an actual
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expectation of privacy in the phone numbers he dialed, and that,
even if he did, his expectation was not "legitimate." Thus, the
Court held that the installation and use of a pen register is not
a search as contemplated by the Fourth Amendment and no warrant was
required. Smith, 442 U.S. at 745-46, 99 S.Ct. at 2583, 61 L.Ed.2d
at 230.
Seventeen years after its decision in Katz, the United States
Supreme Court clarified the second prong of Justice Harlan's test
when the Court issued its opinion in Oliver v. United States
(1984), 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214. Oliver
involved two cases consolidated for review. In the first case,
Kentucky State Police narcotics agents ignored a locked gate and
"No Trespassing" signs and entered Oliver's property where they
discovered a field of marijuana about a mile from Oliver's house.
The trial court suppressed evidence of the discovery of the
marijuana field finding that Oliver had a reasonable expectation
that the field would remain private because Oliver had done all
that could be expected of him to assert his privacy in the area of
the farm that was searched. The trial court noted that the field
was highly secluded as it is bounded on all sides by woods, fences
and embankments and could not be seen from any point of public
access. The Sixth Circuit Court of Appeals reversed, reasoning
that activities that create the need for privacy do not ordinarily
take place in open fields. Oliver, 466 U.S. at 174, 104 S.Ct. at
1739, 80 L.Ed.2d at 221.
In the second case, pursuant to an anonymous tip, two police
officers entered the woods by a path between the defendant's
residence and a neighboring house. They followed a footpath
through the woods until they reached two marijuana patches fenced
with chicken wire. The officers determined that the marijuana was
on the defendant's property and they obtained a warrant to search
the property and seize the marijuana. The trial court granted the
defendant's motion to suppress the fruits of the second search
because the warrant for that search was premised on information
obtained during the prior warrantless search. The Maine Supreme
Judicial Court affirmed reasoning that the open-fields doctrine did
not justify the search as that doctrine applies only when officers
are lawfully present on property and observe "open and patent"
activity. Oliver, 466 U.S. at 175, 104 S.Ct. at 1739, 80 L.Ed.2d
at 222.
The United States Supreme Court determined that in both cases,
the government's intrusion upon the open fields was not an
unreasonable search as proscribed by the Fourth Amendment because
"open fields do not provide the setting for those intimate
activities that the Amendment is intended to shelter from
government interference or surveillance." Oliver, 466 U.S. at 179,
104 S.Ct. at 1741, 80 L.Ed.2d at 224. The Court concluded that
"an individual has no legitimate expectation that open fields will
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remain free from warrantless intrusion by government officers."
Oliver, 466 U.S. at 181, 104 S.Ct. at 1742, 80 L.Ed.2d at 225-26.
In determining whether the expectation of privacy was
legitimate in the sense required by the Fourth Amendment, the Court
stated:
The test of legitimacy is not whether the individual
chooses to conceal assertedly "private" activity.
Rather, the correct inquiry is whether the government's
intrusion infringes upon the personal and societal values
protected by the Fourth Amendment.
Oliver, 466 U.S. at 182-83, 104 S.Ct. at 1743, 80 L.Ed.2d at 227.
The Montana Supreme Court has on numerous occasions relied on
Katz and Smith and the two-pronged test delineated in those cases
to determine whether a warrantless search was reasonable. However,
in addition to the holdings in those cases, this Court has relied
in some circumstances on the unique privacy provisions of Montana's
Constitution.
Montana's constitutional provision regarding searches and
seizures mirrors the Fourth Amendment to the United States
Constitution:
Searches and seizures. The people shall be secure
in their persons, papers, homes and effects from
unreasonable searches and seizures. No warrant to search
any place, or seize any person or thing shall issue
without describing the place to be searched or the person
or thing to be seized, or without probable cause,
supported by oath or affirmation reduced to writing.
Art. II, Sec. 11, Mont.Const. Additionally, when the people of
Montana ratified a new State Constitution in 1972, they explicitly
granted Montana citizens the right to privacy:
Right of privacy. The right of individual privacy
is essential to the well-being of a free society and
shall not be infringed without the showing of a
compelling state interest.
Art. II, Sec. 10, Mont.Const. Thus, Montana's Constitution affords
citizens broader protection at the hands of the government in
search and seizure cases than does the Federal Constitution.
We applied this "broader protection" in our decision in State
v. Solis (1984), 214 Mont. 310, 693 P.2d 518, among others. In
Solis, defendant was videotaped in the act of selling stolen
tractor tires to an undercover officer. Prior to making the
videotapes, law enforcement officers had neither sought nor
obtained a search warrant. When the undercover officer was
unavailable to testify against defendant at his trial, the State
attempted to introduce the videotapes. However, the trial judge
granted defendant's motion to suppress and the State appealed.
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Citing the two-pronged test from Katz as applied by this Court
in Missoulian v. Board of Regents of Higher Educ. (1984), 207 Mont.
513, 675 P.2d 962, we held that defendant did exhibit an actual
expectation of privacy in his conversations with the undercover
officer and that defendant's expectation of privacy was reasonable.
In making this determination, we rejected the holdings of prior
federal cases that stated that government agents do not need
official approval before recording conversations with the consent
of one of the conversants. Basing our decision on Montana's
privacy provision, we stated in Solis that we would not be bound by
decisions of the United States Supreme Court where independent
grounds exist for reaching a contrary result. Solis, 693 P.2d at
521.
We also said in Solis that if a defendant's privacy
expectation was reasonable, it could not be invaded absent a
compelling state interest and a compelling state interest exists
"where the state enforces its criminal laws for the benefit and
protection of other fundamental rights of its citizens." Solis,
693 P.2d at 522 (quoting State ex rel. Zander v. District Court
(1979), 180 Mont. 548, 556, 591 P.2d 656, 660). However, we
subsequently recognized that when the government intrudes upon a
fundamental right, any compelling state interest for doing so must
be closely tailored to effectuate only that compelling interest.
State v. Pastos (1994), 269 Mont. 43, 47, 887 P.2d 199, 202.
Prior to 1995, this Court adhered to the doctrine that an
individual does not have a legitimate expectation of privacy in an
open field; the same doctrine that the United States Supreme Court
upheld in Oliver. See State v. Charvat (1978), 175 Mont. 267, 573
P.2d 660; State v. Bennett (1983), 205 Mont. 117, 666 P.2d 747.
However, in State v. Bullock (1995), 272 Mont. 361, 384, 901 P.2d
61, 76, this Court overruled Charvat, Bennett and several other
cases with similar holdings. Once again we based our decision on
the unique privacy provisions in Montana's Constitution.
In Bullock, law enforcement officers, who had earlier been
alerted that defendants had illegally killed an elk, entered the
property of one of the defendants without a warrant and observed
the carcass of a large bull elk hanging from a tree near the cabin.
Access to defendant's property was by a forest service road and the
property was separated from that road by a fence. "No Trespassing"
signs were posted on trees on each side of the gate at the entrance
to defendant's property. Defendant's cabin was located more than
300 feet from the forest service road at the end of a private road.
The cabin and other structures on the property were concealed from
the forest service road because the terrain in between was slightly
elevated. Neither the cabin nor the elk could be seen from the
forest service road.
The parties in Bullock stipulated that anyone who wished to
enter the property in the past had called defendant beforehand to
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ask permission. In fact, the Jefferson County Sheriff's Office had
done just that a few days earlier prior to conducting a search for
lost hunters. On the date in question, the officers neither asked
nor received permission to be on defendant's property.
In reversing the district court's denial of defendant's motion
to suppress, this Court concluded that
in Montana a person may have an expectation of privacy in
an area of land that is beyond the curtilage which the
society of this State is willing to recognize as
reasonable, and that where that expectation is evidenced
by fencing, "No Trespassing," or similar signs . . .
entry by law enforcement officers requires permission or
a warrant.
Bullock, 901 P.2d at 75-76.
Thus, while we analyze most search and seizure questions
implicating Article II, Section 11 of Montana's Constitution under
traditional Fourth Amendment principles enunciated by the federal
courts and adopted in our own case law, in certain instances where
Montana's constitutional right of privacy, Article II, Section 10,
is also specially implicated, we must, of necessity, consider and
address the effect of that unique constitutional mandate on the
question before us.
As we will point out in greater detail later in this opinion,
the proceedings of the 1972 Montana Constitutional Convention
disclose on the part of the delegates a particular concern over the
intrusion of the government into the privacy of Montanans through
the use of various types of electronic monitoring and surveillance.
That concern was the focus of Article II, Section 10, and,
significantly, led to a specific right of privacy being included in
the 1972 Montana Constitution.
Accordingly, given the nature of the search and seizure
question at issue here, it is appropriate and necessary that we
address the warrantless use of thermal imaging in the context of
not only traditional Fourth Amendment principles under Article II,
Section 11 of the Montana Constitution, but under the broader
protections afforded by Article II, Section 10, as well. We begin
our analysis with a review of the case law.
Search and Seizure Analysis
The warrantless use of thermal imaging in criminal cases is an
issue of first impression in Montana. However, the cases from
other jurisdictions that have discussed this issue have generally
used at least one of the following three approaches: the waste-heat
approach, the canine-sniff approach, or the technological approach.
We will examine each of these approaches in turn along with some of
the relevant cases.
The Waste-Heat Approach
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Using this approach, some courts have analogized heat to
garbage left outside one's home. Since a warrant is not required
to examine curbside garbage, these courts reason that, in the same
way, no warrant is required to examine heat discarded from one's
home. This approach finds its genesis in the case of California v.
Greenwood (1988), 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30,
wherein law enforcement officers, lacking a warrant, searched the
garbage left for collection outside the curtilage of a home.
In Greenwood, the Laguna Beach Police Department received
information that Greenwood might be engaged in narcotics
trafficking. In conducting a surveillance of Greenwood's home, an
officer asked the neighborhood trash collector to pick up the
garbage bags that Greenwood left on the curb in front of his house
and to deliver them to the officer without mixing their contents
with garbage from other houses. The officer then searched through
Greenwood's garbage and found items "indicative of narcotics use."
The officer used this information to obtain a warrant to search
Greenwood's home where quantities of cocaine and hashish were
found. Greenwood was arrested and subsequently posted bail.
A few weeks later, another officer again searched Greenwood's
garbage and found evidence of narcotics use. A search warrant was
issued based on the information from the second garbage search.
The police found more narcotics and evidence of narcotics
trafficking in their search of Greenwood's home and Greenwood was
again arrested. The Superior Court dismissed the charges against
Greenwood based on prior case law holding that warrantless trash
searches violated the Fourth Amendment and the California
Constitution.
The United States Supreme Court determined that the
warrantless search of the garbage left outside Greenwood's home
would violate the Fourth Amendment only if Greenwood manifested a
subjective expectation of privacy in his garbage that society would
accept as objectively reasonable. Greenwood, 486 U.S. at 39, 108
S.Ct. at 1628, 100 L.Ed.2d at 36 (citations omitted). The Court
concluded that by leaving his garbage on a public street, "readily
accessible to animals, children, scavengers, snoops, and other
members of the public," Greenwood defeated any claim he may have
had to Fourth Amendment protection. Greenwood, 486 U.S. at 40-41,
108 S.Ct. at 1628-29, 100 L.Ed.2d at 36-37. Furthermore, because
Greenwood deliberately placed his garbage at the curb for the
express purpose of having a third party, the trash collector, take
it, Greenwood could have no reasonable expectation of privacy in
the inculpatory items that he discarded. Greenwood, 486 U.S. at
41, 108 S.Ct. at 1629, 100 L.Ed.2d at 37.
Along these same lines, the United States District Court for
the District of Hawaii concluded that the nonintrusive use of a
thermal imaging device for the purpose of detecting waste heat did
not amount to a search within the meaning of the Fourth Amendment.
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U.S. v. Penny-Feeney (D.Hawaii 1991), 773 F.Supp. 220, 228, aff'd
on other grounds sub nom. U.S. v. Feeney (9th Cir. 1993), 984 F.2d
1053.
In this case, the Kona Police Department received several tips
from known and anonymous informants that Penny-Feeney had been
growing marijuana at her residence for several years. To
corroborate this information, officers flew over the residence in
a helicopter equipped with a thermal imager. The thermal imaging
scan revealed a significant amount of heat emanating from the
garage on the property. Based on the information obtained from the
informants and the thermal imager, a warrant was issued to search
the residence. In the search, officers found marijuana plants,
grow lights, an electric meter that had been altered to show a
lower amount of electric usage, and books and papers showing drug
transactions.
The United States District Court determined that Penny-Feeney
did not have a legitimate expectation of privacy in the waste heat
since she voluntarily vented it outside the garage where it was
exposed to the public and she in no way attempted to impede its
escape or exercise dominion over it. Moreover, analogizing it to
the garbage in Greenwood, the court determined that even if Penny-
Feeney could demonstrate a subjective expectation of privacy in the
waste heat, such an expectation would not be one that society would
accept as objectively reasonable. Penny-Feeney, 773 F.Supp. at
226.
In a similar fashion, the Seventh, Eighth and Eleventh
Circuits all relied, at least in part, on Greenwood and compared
the excess heat detected by thermal imaging scans to garbage. From
this they concluded that the use of a thermal imager is not a
search as contemplated by the Fourth Amendment. U.S. v. Meyers
(7th Cir. 1995), 46 F.3d 668, cert denied, 116 S.Ct. 213; U.S. v.
Pinson (8th Cir. 1994), 24 F.3d 1056, cert denied, 115 S.Ct. 664;
U.S. v. Ford (11th Cir. 1994), 34 F.3d 992.
In one such case, Ford, agents of the Florida Department of
Law Enforcement, acting upon information that Ford was growing
marijuana inside his mobile home, entered the property leased by
Ford over a locked gate and traveled a quarter of a mile onto the
property. They viewed the mobile home through a thermal imager and
determined that it was emitting an inordinate amount of heat
through its floor and walls. Based upon this information, the
agents obtained a warrant to search the mobile home where they
discovered a sophisticated hydroponic laboratory and over 400
marijuana plants. They also discovered that Ford had punched holes
in the floor of the mobile home and installed a blower to vent the
excess heat generated by grow lamps. Ford, 34 F.3d at 993.
The court in Ford concluded that given Ford's affirmative
conduct to expel excess heat from his mobile home, Ford did not
seek to preserve the fact of that heat as private, thus he did not
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exhibit a subjective expectation of privacy in the heat emitted
from his mobile home. Ford, 34 F.3d at 995. The court also stated
that even if Ford had a subjective expectation of privacy in the
heat escaping from his mobile home, it was not one that society
would accept as objectively reasonable. Ford, 34 F.3d at 997.
Citing Greenwood, the court in Ford stated that the heat that Ford
intentionally vented from his mobile home was a waste byproduct of
his marijuana cultivation and is analogous to the inculpatory items
Greenwood discarded in his trash. Ford, 34 F.3d at 997.
The problem with this approach is that it does not address the
fact that waste heat, unlike garbage, can only be detected by means
of a technologically advanced device. It is not readily accessible
to "animals, children, scavengers, snoops, and other members of the
public," as was the garbage in Greenwood. Furthermore, since
dissipation is an inevitable result of heat production, it does not
require a deliberate act nor is it preventable in the same way that
one can conceal incriminating garbage. The laws of thermodynamics
dictate that no matter how much one insulates, heat will still
escape. Moreover, the fact that one insulates to keep heat in
indicates a subjective expectation of privacy.
The Canine-Sniff Approach
Many courts have analogized the use of thermal imagers to the
use of trained drug-detecting dogs. See Pinson, 24 F.3d at 1058;
Ford, 34 F.3d at 997; Meyers, 46 F.3d at 670. Relying on the
United States Supreme Court's decision in U.S. v. Place (1983), 462
U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110, the courts in Pinson,
Ford and Meyers all concluded that use of a thermal imager does not
constitute a search within the meaning of the Fourth Amendment.
In Place, the defendant was waiting in line at the Miami
International Airport to purchase a ticket to New York when his
behavior aroused the suspicions of law enforcement officers. The
officers approached Place and requested his ticket and his
identification. Place complied with their requests and consented
to a search of his checked luggage, but, because his flight was
about to depart, the officers decided to forego a search. They
noted, however, some discrepancies in the street addresses on the
tags for Place's two suitcases. Upon further investigation, the
officers discovered that neither address existed. They then
contacted DEA authorities in New York.
Two DEA agents were waiting for Place when he arrived in New
York. After observing more suspicious behavior by Place, they
approached him and requested his identification. When Place
refused to consent to a search of his luggage, the agents seized
his suitcases and subjected them to a "sniff test" by a trained
drug-detecting dog. The dog reacted positively to one of the
suitcases. The agents subsequently obtained a search warrant and
discovered 1125 grams of cocaine.
Place moved to suppress the contents of the luggage seized
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from him claiming that the warrantless seizure of the luggage
violated his Fourth Amendment rights. In attempting to determine
that issue, the United States Supreme Court concluded that exposing
luggage to the olfactory senses of a trained drug-detecting dog is
not a search because it does not require opening the luggage.
Place, 462 U.S. at 707, 103 S.Ct. at 2644-45, 77 L.Ed.2d at 121.
The Court stated:
[A canine sniff] does not expose noncontraband items
that otherwise would remain hidden from public view, as
does, for example, an officer's rummaging through the
contents of the luggage. Thus, the manner in which
information is obtained through this investigative
technique is much less intrusive than a typical search.
Moreover, the sniff discloses only the presence or
absence of narcotics, a contraband item. Thus, despite
the fact that the sniff tells the authorities something
about the contents of the luggage, the information
obtained is limited. This limited disclosure also
ensures that the owner of the property is not subjected
to the embarrassment and inconvenience entailed in less
discriminate and more intrusive investigative methods.
Place, 462 U.S. at 707, 103 S.Ct. at 2644, 77 L.Ed.2d at 121.
However, in U.S. v. Thomas (2nd Cir. 1985), 757 F.2d 1359, cert
denied, 474 U.S. 819, the use of a trained dog to sniff for
narcotics outside defendant's apartment was held to constitute a
search that, in the absence of a warrant, violated the Fourth
Amendment.
In Penny-Feeney, along with analogizing the waste heat to
garbage, the court in that case also likened the use of thermal
imagers to the use of police dogs trained to sniff and identify the
presence of drugs. Relying on U.S. v. Solis (9th Cir. 1976), 536
F.2d 880, wherein the Ninth Circuit Court of Appeals held that use
of the dogs was not unreasonable under the circumstances and was
not a prohibited search under the Fourth Amendment, the Penny-
Feeney court stated:
Use of the [thermal imager], like use of the dog sniff,
entailed no embarrassment to or search of the person.
Heat emanations, the target here, are comparable to the
odor emanations in Solis since they constitute a physical
fact indicative of possible crime, not protected
communications.
Penny-Feeney, 773 F.Supp. at 227.
The flaw in the canine-sniff approach is that thermal imagers
provide information about heat emissions both legal and illegal
while canine sniffs only provide information about the presence of
illicit substances. A thermal imager cannot limit its detection to
information regarding illegal activities. Moreover, the radiation
of inordinate amounts of heat does not necessarily imply that
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illegal activity is taking place in the same manner that the smell
of illicit drugs implies their presence.
The Technological Approach
Some courts have looked at the underlying technological and
scientific principles involved in thermal imaging and have
determined that the use of a thermal imager is not a search because
this technology cannot reveal any "intimate details" about the
activities occurring inside the home. The United States Supreme
Court considered the warrantless use of other high-technology
devices in its decision in Dow Chemical Co. v. United States
(1986), 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226.
In Dow, the Environmental Protection Agency (EPA) employed a
commercial aerial photographer, using a precision aerial mapping
camera, to take photographs of the Dow Chemical Company's facility
in Midland, Michigan. Dow had maintained elaborate security around
the perimeter of the complex to prevent the exposure of any trade
secrets to its competitors. Dow consented to an on-site inspection
by the EPA of two powerplants in its 2000-acre complex. However,
when the EPA requested consent for a second inspection, Dow
refused. The EPA did not seek an administrative search warrant and
instead resorted to flying over the facility at altitudes between
1200 and 12,000 feet to obtain photographs.
Dow brought suit against the EPA contending that the taking of
aerial photographs constituted a search without a warrant, thereby
violating Dow's rights under the Fourth Amendment. The United
States Supreme Court disagreed, holding that the taking of aerial
photographs of an industrial complex from navigable airspace is not
a search as contemplated by the Fourth Amendment. Dow, 476 U.S. at
239, 106 S.Ct. at 1827, 90 L.Ed.2d at 238. In arriving at this
conclusion, the Court stated:
Here, EPA was not employing some unique sensory device
that, for example, could penetrate the walls of buildings
and record conversations in Dow's plants, offices, or
laboratories, but rather a conventional, albeit precise,
commercial camera commonly used in mapmaking.
Dow, 476 U.S. at 238, 106 S.Ct. at 1826-27, 90 L.Ed.2d at 237. The
Court further stated that "the photographs here are not so
revealing of intimate details as to raise constitutional concerns."
Dow, 476 U.S. at 238, 106 S.Ct. at 1827, 90 L.Ed.2d at 237-38.
The Fifth Circuit Court of Appeals followed the technological
approach utilized in Dow in upholding the constitutionality of
warrantless thermal imaging in its decision in U.S. v. Ishmael (5th
Cir. 1995), 48 F.3d 850, cert denied, 116 S.Ct. 74. In this case,
the DEA, using a helicopter equipped with a thermal imager, flew
over the Ishmaels' property at altitudes between 500 and 1000 feet
to investigate a cement substructure underneath a steel building on
the property. A few weeks later, several officers entered the
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Ishmaels' property on foot and used a hand-held thermal imager to
scan the building. They discovered that an unusual amount of heat
was emanating from the substructure and the ground adjacent to it.
Using the information from the thermal imaging scans and other
information, the DEA obtained a warrant to search the substructure
where they discovered more than 700 marijuana plants and several
firearms.
The Ishmaels moved to suppress the evidence obtained in the
search on the basis that the readings from the thermal imaging scan
constituted an unconstitutional search and that, without those
readings, the DEA did not have probable cause to obtain a warrant.
The District Court granted the motion to suppress and the
government appealed.
The Fifth Circuit Court of Appeals held that, because the
Ishmaels constructed the laboratory in great secrecy in a basement
to a steel building that was not visible from a public road, they
exhibited a subjective expectation that their hydroponic laboratory
would remain private, thereby meeting the first prong of Katz.
Ishmael, 48 F.3d at 854-55. In analyzing whether the Ishmaels'
expectation was reasonable, the second prong of the Katz test, the
court focused on the technology involved, and its degree of
sophistication. The court noted that more sophisticated forms of
technology increase the likelihood that their warrantless use will
constitute an unreasonable intrusion, but the mere fact that the
police employ relatively sophisticated forms of technological
surveillance does not render the surveillance unconstitutional.
Ishmael, 48 F.3d at 855. According to the Ishmael court, the
crucial inquiry is whether the technology revealed any "intimate
details." Ishmael, 48 F.3d at 855. Thermal imaging "is a passive,
nonintrusive instrument" in that it does not send any beams or rays
into the area on which it is fixed or in any way penetrate
structures within that area; no intimate details of the home are
observed. Ishmael, 48 F.3d at 856.
The court in Ishmael, also examined the manner in which the
thermal imager was used. Relying on prior cases from that
jurisdiction holding that "there is no business curtilage
surrounding a barn lying within an open field," the court stated
that the officers were entitled to observe the steel building
either by air or on foot because the building stood in an open
field. Ishmael, 48 F.3d at 856-57. Thus, the court concluded that
a thermal imager, when used in an "open field" does not offend the
Fourth Amendment because it is passive and nonintrusive; the
sanctity of one's home or business is not disturbed. Ishmael, 48
F.3d at 857.
The Tenth Circuit Court of Appeals had another view of this
issue. In U.S. v. Cusumano (10th Cir. 1995), 67 F.3d 1497, the
court held that the warrantless use of a thermal imager upon
defendants' home violated the Fourth Amendment. Cusumano, 67 F.3d
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at 1510. The defendants in Cusumano did not deny that a search of
their home by the police revealed a sophisticated indoor marijuana
grow operation in their basement. They contended, however, that
the search warrant was supported by information obtained from a
warrantless thermal imaging scan of the home, that the scan
violated their Fourth Amendment rights, and that absent the data
from the thermal imaging scan, the search warrant lacked probable
cause. While agreeing with defendants' contention that the use of
the thermal imager required a search warrant, the Court of Appeals
determined that, absent the information from the thermal imaging
scan, the search warrant was supported by probable cause.
The court in Cusumano recognized that a thermal imager
measures heat gradients across the exterior surface of a building,
thus activities that generate a significant amount of heat produce
a heat "signature" that the imager can detect. Cusumano, 67 F.3d
at 1501. Based on this, the court maintained that the pertinent
inquiry is not "whether the Defendants retain an expectation of
privacy in the 'waste heat' radiated from their home," but rather
"whether they possess an expectation of privacy in the heat
signatures of the activities, intimate or otherwise, that they
pursue within their home." Cusumano, 67 F.3d at 1502. Moreover,
the court stated that
[t]he machine intrudes upon the privacy of the home not
because it records white spots on a dark background but
rather because the interpretation of that data allows the
government to monitor those domestic activities that
generate a significant amount of heat.
Cusumano, 67 F.3d at 1504.
In analyzing the second prong of the Katz test, the court,
acknowledging that there is no explicit societal expectation of
privacy in the heat signatures of activity within the home, stated:
We rather doubt that society is aware that heat
signatures can be read with any greater accuracy than tea
leaves. The contours of the privacy expressly guaranteed
the home by the Fourth Amendment are not, however,
determined by the outcome of a game of hide-and-seek
played by the government and the people. It is
abundantly clear that the people retain a "reasonable
expectation of privacy" in the undetected, unmonitored
performance of those domestic activities that are not
knowingly exposed to the public.
Cusumano, 67 F.3d at 1505-06. Therefore, the court held that the
use of a thermal imager upon the home intruded upon an expectation
of privacy that society would deem reasonable. Cusumano, 67 F.3d
at 1506.
We agree with the Tenth Circuit's determination in Cusumano
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that the pertinent inquiry is whether defendants possess "an
expectation of privacy in the heat signatures of the activities,
intimate or otherwise, that they pursue within their home" and
which they do not knowingly expose to the public. Cusumano, 67
F.3d at 1502-03. We also agree with the Fifth Circuit's decision
in Ishmael that because the grow operation in that case was
constructed in great secrecy in a building that was not visible
from a public road, defendants exhibited a subjective expectation
that the operation would remain private, thereby meeting the first
prong of Katz. Ishmael, 48 F.3d at 854-55.
In the case before us on appeal, Defendants' property was
heavily wooded and completely fenced. Defendants took several
steps to insure their privacy including posting the property with
"No Trespassing" signs, painting the fence posts orange,
maintaining perimeter and interior fences and locking the gates.
Defendants' marijuana grow operation was housed out of view in a
building on the property. Thus we conclude, as did the court in
Ishmael, that Defendants in the present case met the first prong of
Katz because they exhibited a subjective expectation that their
grow operation would remain private.
The court in Ishmael determined, however, that defendants in
that case did not meet the second prong of Katz because, relying on
prior cases from the Fifth Circuit, law enforcement officers were
entitled to observe the building either by air or on foot since the
building stood in an open field and when a thermal imager is used
on a structure in an open field the sanctity of one's home or
business is not disturbed. Ishmael, 48 F.3d at 857. Unlike the
Fifth Circuit, Montana's prior cases have held that "in Montana a
person may have an expectation of privacy in an area of land that
is beyond the curtilage which the society of this State is willing
to recognize as reasonable. . . ." State v. Bullock (1995), 272
Mont. 361, 384, 901 P.2d 61, 75-76.
In the present case, Defendants' fenced their property and
posted it with "No Trespassing" signs, just as did the defendants
in Bullock. However, the Defendants in the present case went even
further than did the defendants in Bullock by housing the
activities that they wished to keep private in an enclosed
structure rather than merely in "an area of land." Furthermore,
the law enforcement officers in the case before us admitted that
they also used the thermal imager to scan Defendants' residence,
a place where an individual has the greatest expectation of
privacy.
Finally, we believe that Montanan's would be shocked and
consider it a gross invasion of their privacy to learn that the
government could, without their consent and in the absence of a
search warrant issued by a neutral and detached magistrate,
surreptitiously monitor the heat signatures generated by activities
conducted within the confines of their private homes and enclosed
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structures for the purpose of drawing inferences about the legality
of such activities. It was pointed out in oral argument that with
knowledge of the sort of heat profile generated by an indoor
marijuana growing operation, there is presently nothing to stop law
enforcement from simply selecting structures or a neighborhood at
random and then scanning every home (or building) to determine
whether any of the structures are generating a suspicious heat
signature. We recognize that thermal imaging was not used in that
fashion in this case and that the present state of the technology
may not be such as to positively identify illegal from legal
activity. Notwithstanding, we are also mindful that we live in
times during which the sophistication of a given technology
typically increases exponentially over a relatively short time,
along with the potential for its abuse. While our decision here is
not grounded in those presumptions, to completely ignore such
factors in our decision-making process, as the State suggests,
would be unreasonably myopic, indeed.
Accordingly, applying traditional principles of search and
seizure law as adopted in our prior cases to the issue before us,
we hold that the use of thermal imaging to obtain evidence of
criminal activity is a search subject to the warrant requirement of
Article II, Section 11, of Montana's Constitution. Specifically,
we conclude that persons have an actual (subjective) expectation of
privacy in the heat signatures of activities, intimate or
otherwise, which they pursue within the confines of their private
homes and enclosed structures and which they do not knowingly
expose to the public. Moreover, we conclude that, given Montana's
heightened expectations of privacy, best evidenced by the specific
protection given that right under Article II, Section 10 of
Montana's Constitution (discussed at length in the next section of
this opinion), this expectation is one which society in this State
is willing to recognize as objectively reasonable.
Right of Privacy Analysis
As mentioned above, our consideration of this issue does not
stop with traditional Fourth Amendment analysis, however.
Montanans are afforded broader protections to their right of
privacy under Article II, Section 10 of Montana's Constitution.
On the facts of this case, Article II, Section 10, is implicated
along with Article II, Section 11.
In State v. Young (Wash. 1994), 867 P.2d 593, the Supreme
Court of Washington held that the use of a thermal imager to
perform a warrantless surveillance of defendant's home violated the
State of Washington's constitutional protection of defendant's
private affairs as well as the Fourth Amendment to the United
States Constitution. Washington's constitution provides: "No
person shall be disturbed in his private affairs, or his home
invaded, without authority of law." Young, 867 P.2d at 597 (citing
Art. I, Sec. 7, Wash.Const.). The court in Young determined that
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the United States Constitution provides "the minimum protection
afforded citizens against unreasonable searches by the government."
Young, 867 P.2d at 596. Thus the court found that the "private
affairs inquiry" under its constitution is broader than the Fourth
Amendment's reasonable expectation of privacy inquiry. Young, 867
P.2d at 597.
So too, on the particular search and seizure question at issue
here, we find that the inquiry under Montana's right of privacy
provision is broader than the usual Fourth Amendment reasonable
expectation of privacy inquiry. As we stated earlier in this
opinion, Montana's Constitution affords citizens broader protection
from warrantless governmental intrusion in search and seizure cases
than does the United States Constitution. State v. Solis (1984),
214 Mont. 310, 316, 693 P.2d 518, 521.
There has been unnecessary emphasis placed on
distinguishing right to privacy cases from search and
seizure cases. The right to privacy is the cornerstone
of protections against unreasonable searches and
seizures. Thus, a warrantless search can violate a
person's right of privacy and thereby violate the right
to be free from unreasonable searches and seizures.
Solis, 693 P.2d at 522-23.
In 1972, the delegates to Montana's Constitutional Convention
voiced clear opposition to any form of electronic surveillance of
Montana citizens. As Delegate Campbell stated:
Today, with wiretaps, electronic and bugging devices,
photo surveillance equipment and computerized data banks,
a person's privacy can be invaded without his knowledge
and the information so gained can be misused in the most
insidious ways. It isn't only a careless government that
has this power to pry; political organizations, private
information gathering firms, and even an individual can
now snoop more easily and more effectively than ever
before. We certainly hope that such snooping is not as
widespread as some persons would have us believe, but
with technology easily available and becoming more
refined all the time, prudent safeguards against the
misuse of such technology are needed. Some may urge and
argue that this is a legislative, not a constitutional
issue. We think the right of privacy is like a number of
other inalienable rights; a carefully worded
constitutional article reaffirming this right is
desirable.
. . .
We at the committee felt very strongly that the people of
Montana should be protected as much as possible against
eavesdropping, electronic surveillance, and such type of
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activities. . . . [W]e found that the citizens of Montana
were very suspicious of such type of activity.
Montana Constitutional Convention, Verbatim Transcript, March 7,
1972, pages 1681-82. Delegate Dahood also expressed the concerns
of the committee:
First of all, we agreed that we would go along with an
amendment that would prohibit electronic surveillance in
the State of Montana. . . . After listening to
testimony, after examining briefs that were submitted to
us, after analyzing the situation, it is inconceivable to
any of us that there would ever exist a situation in the
State of Montana where electronic surveillance could be
justified. And the thinking throughout the United States
is, electronic surveillance shall be justified only in
matters involving national security, perhaps in matters
involving certain heinous federal crimes where the
situation is such that in those instances we must risk
the right of individual privacy because there is a
greater purpose to be served. But within the area of the
State of Montana, we cannot conceive of a situation where
we could ever permit electronic surveillance. And our
intention was--in responding to the proposed amendment;
that we would not object to it--was to allow an amendment
that would prohibit electronic surveillance in the State
of Montana.
Transcript, page 1687.
While thermal imaging is not mentioned, per se, in their
comments, it is clear that the delegates' concerns encompassed the
invasion of citizens' privacy without their knowledge by means of
various sorts of electronic audio and visual monitoring and
surveillance equipment. Not only were the delegates wary of
existing technology of this type, but they recognized that this
sort of technology would continue to be refined and would become
more widespread and easily available. In this regard their
concerns have been well-founded. Moreover, it is also clear that,
in the delegates' view, the use of this sort of technology should
be justified only in the most serious of situations, involving
heinous crimes where it is necessary to "risk the right of
individual privacy because there is a greater purpose to be
served." Transcript, page 1687. In the face of this history of
Article II, Section 10, we are compelled to conclude that the use
of thermal imaging as a criminal investigative tool is the very
sort of technology against which Article II, Section 10 of
Montana's Constitution was enacted to guard.
Accordingly, we conclude that, in the absence of a search
warrant, the use of thermal imaging as a criminal investigative
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tool implicates Article II, Section 10 of Montana's Constitution
and requires the demonstration of a compelling state interest,
other than enforcement of the criminal law. Finding no such
demonstration of a compelling state interest in this case, we hold
that the use of thermal imaging at issue here, since no authorizing
warrant was issued, violated the Defendants' right to privacy
guaranteed under Article II, Section 10 of Montana's Constitution.
Issue 2.
Did the election by the State not to make a
videotape of the results obtained by the thermal imager
constitute destruction of exculpatory evidence?
In light of our decision to reverse the District Court on the
motion to suppress, we need not decide this issue. However, since
this is a case of first impression in Montana, we offer the
following for future guidance to the courts. As with our decision
in State v. Grey (1995), 274 Mont. 206, 907 P.2d 951, regarding
audio and/or video recordings of Miranda warnings and a detainee's
waiver of the same, we do not require that law enforcement officers
must, as a matter of law, create a video recording of the results
of a thermal imaging scan. We do, however, note that, absent the
demonstration of a legitimate and compelling reason to the
contrary, the failure of law enforcement officers to preserve some
tangible record of the results of a thermal imaging scan should be
viewed with distrust in the judicial assessment of the
interpretation of those results. See Grey, 907 P.2d at 956.
Issue 3.
Did sufficient probable cause exist to support the
issuance of a search warrant for Defendants' premises?
In its Findings of Fact, Conclusions of Law and Order denying
Defendants' motion to suppress, the District Court determined that,
even without the results of the thermal imaging scan, probable
cause existed to issue a warrant to search Defendants' premises.
Defendants argue to the contrary contending that, with or without
the results of the thermal imaging scan, the State's Application
for Search Warrant failed to set forth sufficient probable cause to
support issuing a warrant. Since we have already determined that
the use of a thermal imager constitutes a search for Fourth
Amendment purposes and since no warrant was obtained in this case
prior to using the thermal imager, we will excise the results of
the thermal imaging scan from the search warrant application and
review the remaining information to determine if sufficient
probable cause existed for the issuance of the warrant.
An application for a search warrant must state facts
sufficient to show probable cause for issuance of the warrant.
Section 46-5-221, MCA; State v. Rinehart (1993), 262 Mont. 204,
209, 864 P.2d 1219, 1222. Probable cause exists when the facts and
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circumstances presented to the magistrate would warrant an honest
belief in the mind of a reasonable and prudent man that the offense
has been, or is being, committed and that the property sought
exists at the place designated. State v. Isom (1982), 196 Mont.
330, 343, 641 P.2d 417, 424. However, a determination of probable
cause does not require facts sufficient to make a prima facie
showing of criminal activity; the issuing magistrate need only
determine that there is a probability of such activity. Rinehart,
864 P.2d at 1222.
This Court has adopted the "totality of the circumstances"
test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct.
2317, 76 L.Ed.2d 527, to address the issue of probable cause for
issuance of a warrant. State v. Crowder (1991), 248 Mont. 169,
173, 810 P.2d 299, 302. "The totality of the circumstances test is
fact specific." State v. Holstine (1993), 260 Mont. 310, 314, 860
P.2d 110, 113 (citing State v. Valley (1992), 252 Mont. 489, 492,
830 P.2d 1255, 1257). We said in Rinehart that if a magistrate
issues a search warrant after subjecting the application to this
test, a reviewing court must presume that the magistrate's decision
is correct. Rinehart, 864 P.2d at 1223 (citing State v. Baldwin
(1990), 242 Mont. 176, 183, 789 P.2d 1215, 1220).
"When a magistrate determines that probable cause exists to
warrant the issuance of a search warrant, this Court should not
only give great deference to that decision but we should also draw
every reasonable inference possible to support the decision."
State v. Rydberg (1989), 239 Mont. 70, 73, 778 P.2d 902, 904.
Thus, the duty of a reviewing court is not to conduct a de novo
review of the magistrate's determination, but to simply ensure that
the magistrate or lower court had a substantial basis for
concluding that probable cause to issue the search warrant existed.
Rinehart, 864 P.2d at 1223.
When a search warrant has been issued, a determination of
probable cause must be made solely from the information given to
the impartial magistrate and from the four corners of the search
warrant application. Isom, 641 P.2d at 423. The following is a
summary of the facts set forth in the Application for Search
Warrant in this case (absent the information from the thermal
imaging scan):
1. An informant, who wished to remain anonymous,
contacted the NIB and reported that a suspicious
structure had been erected on a neighboring property.
The informant stated that the structure is approximately
30 feet by 70 feet with a cement floor. It has one
blocked window and two doors that are too small for
vehicles or large animals to enter. In addition, there
are four water drains located in the floor.
2. The informant observed electric power lines
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running to the structure, yet he can hear the sound of a
generator constantly operating inside it.
3. The informant declared that he has seen several
vehicles frequenting the area of the structure and that
the occupants of the nearby house are secretive about
what is transpiring inside the structure. He said that
the structure is always under observation by one of the
occupants.
4. NIB agents Hayes and Skuletich observed the
structure from a neighboring property and corroborated
the existence of the structure, that electrical power
lines run to the structure and that the sound of a
generator can be heard emanating from within the
structure.
5. Another informant, who also wished to remain
anonymous, reported that he had observed fuel oil being
delivered to the structure. This informant also advised
the officers that Jones and McIntyre occupied the
residence.
6. Agent Hayes initiated an inquiry and discovered
that neither Jones nor McIntyre are covered through
Worker's Compensation. Hayes was unable to confirm that
the suspects had any gainful employment.
7. The Madison County Sheriff verified that no
building permit had been issued for the structure. He
also discovered that a recently-drilled well near the
structure is only surface water and is not safe for human
consumption.
8. A review of phone records for the residence
showed that from November through January, the suspects
had contacted five different nurseries and/or fertilizer
dealers from the area, yet there was no evidence of any
gardening. The phone records also revealed that five
different electrical supply dealers had been contacted
during the same time frame.
Defendants point to several problems with this application
leading them to suggest that it does not contain sufficient
probable cause to issue a search warrant. First, Defendants
contend that the State failed to show the reliability or veracity
of the informants. The veracity, reliability and basis of
knowledge of informants remain highly relevant factors in
determining probable cause under the totality of the circumstances
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test. Rinehart, 864 P.2d at 1222. This Court has upheld search
warrants where the only information in the application relating to
the reliability of the informant was a statement by an officer that
the informant had been reliable in the past. Rinehart, 864 P.2d at
1223-24. However, the application in this case does not state
whether the informants were known to law enforcement officers or
whether information obtained from these informants may have proved
reliable previously.
Corroboration of information through other sources is
necessary when the information is hearsay or the informant is
anonymous. Rinehart, 864 P.2d at 1224 (citing Crowder, 810 P.2d at
302). Here, law enforcement officers observed the structure
firsthand and confirmed that it existed, that a generator could be
heard operating within the structure and that there were electrical
power lines running to the structure. However, the officers could
not corroborate the frequency of visits by certain vehicles, or the
delivery of diesel fuel to the structure.
The search warrant application characterized the informants in
this case as "concerned citizens."
[A] citizen informant is presumed reliable. However,
this is not a per se rule. The reliability of a citizen
informant is generally shown by the very nature of the
circumstances under which the incriminating information
became known.
Valley, 830 P.2d at 1258 (citing State v. Niehaus (Iowa 1990), 452
N.W.2d 184, 189). In the case before us, the only information we
have regarding the "nature of the circumstances" by which the
information became known are statements in the search warrant
application that the informants contacted the NIB and the sheriff's
department to report "suspicious" activity. Even accepting the
information from the informants as true, that information does not
in and of itself establish probable cause.
Second, Defendants claim that because the telephone calls to
the nurseries and electrical supply dealers were made between
November 1993 and January 1994 and the search warrant was not
applied for until August 1994, this information is stale and should
not have been relied on in issuing the search warrant. A
determination of staleness depends largely on the nature of the
property and activity in issue. State v. Walston (1989), 236 Mont.
218, 223, 768 P.2d 1387, 1390.
The observation of a half-smoked marijuana cigarette in
an ashtray at a cocktail party may well be stale the day
after the cleaning lady has been in; the observation of
the burial of a corpse in a cellar may well not be stale
three decades later. The hare and the tortoise do not
disappear at the same rate of speed.
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Walston, 768 P.2d 1387, 1390 (citing State v. Pease (1986), 222
Mont. 455, 466, 724 P.2d 153, 160). When a criminal activity is
continuing in nature, more time may elapse between the observation
of the activity and the application for the search warrant without
negating probable cause. Walston, 768 P.2d at 1390. Here, because
of the continuing nature of the criminal activity, we do not find
that the information from the phone calls was stale.
Third, Defendants contend that the assertion in the
application that the building has only one window and only two
doors which are too small to allow large animals or vehicles to
enter is erroneous and thus should be excised from the application.
While we do not condone the presence of inaccuracies in search
warrant applications, this Court has previously stated that the
information contained in an application for a search warrant "will
be deemed truthful when the information put forth is believed or
appropriately accepted by affiant." State v. Feland (1994), 267
Mont. 112, 115, 882 P.2d 500, 501 (citing State v. Mosley (1993),
260 Mont. 109, 116, 860 P.2d 69, 73). In this case, Agents Hayes
and Skuletich observed the structure firsthand and from their
vantage point, this information appeared correct. Accordingly, we
see no need to excise this information from the application.
Finally, Defendants argue that the information contained in
the warrant application is not indicative of criminal activity and
that the State made unsupported conclusions. "[F]acts of a
description and location of property, while easily confirmable by
a driveby, can hardly be regarded as probative of the probability
of the presence of contraband therein." Holstine, 860 P.2d at 113.
More specifically, the statements contained in the warrant
application that Defendants were "secretive" about what was
transpiring inside the structure, that Defendants were not covered
by workers compensation, that law enforcement officers were unable
to confirm gainful employment, that Defendants had not obtained a
building permit, and that the well was not fit for human
consumption do not indicate criminal activity. Conclusory
statements will not provide a substantial basis to conclude that
probable cause existed to issue a search warrant. State v. Kaluza
(1995), 272 Mont. 404, 410, 901 P.2d 107, 110 (citing State v.
Wilson (1992), 254 Mont. 317, 320, 837 P.2d 1346, 1348).
The search warrant application in this case does not contain
any information of a criminal history for any of the Defendants or
that any of the Defendants had been connected with any criminal
activity in the past. "A mere affirmance of belief or suspicion by
a police officer, absent any underlying facts or circumstances,
does not establish probable cause for the issuance of a search
warrant." Isom, 641 P.2d at 424.
The only information suggesting possible criminal activity on
the part of Defendants is found in the District Court's order
denying Defendants' motion to suppress. In its first finding of
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fact, the District Court related information about a routine call
regarding a civil disturbance at Defendants' residence in March
1994. While investigating this incident, the Sheriff observed a
"sizeable quantity of firearms in the front room." According to
the court's finding, the Sheriff's subsequent report to federal
authorities of the existence of this cache of firearms led to the
NIB's investigation of Defendants. However, this information is
not contained within the "four corners" of the application. The
information that is contained within the application is just as
consistent with a conclusion that legitimate farming operations
were occurring on the property as it is with a conclusion that
illegal activities were occurring.
Therefore, an examination of the Application for Search
Warrant in the present case leads us to the conclusion that the
District Court did not have a substantial basis for finding that
the application contained sufficient probable cause to issue a
warrant to search Defendants' property. Accordingly, we reverse
the District Court's order denying Defendants' motion to suppress.
Issue 4.
Did the District Court err in denying Jones' Motion
to Dismiss the criminal proceedings against him on double
jeopardy grounds after the State obtained a judgment
against him in a civil forfeiture action?
Jones appealed the denial of his motion to dismiss the
criminal proceedings against him on double jeopardy grounds.
However, in light of the recent United States Supreme Court
decision in U.S. v. Ursery (1996), ___ U.S. ___, 116 S.Ct. 2135,
135 L.Ed.2d 549, wherein the Court held that civil forfeitures do
not constitute "punishment" for purposes of the Double Jeopardy
Clause, Jones has now waived his claim of double jeopardy.
Reversed.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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Chief Justice J. A. Turnage, specially concurring:
I concur in the result of this case; however, I express
concern that part of the conclusion of the Court on Issue 1 may be
the source of misunderstanding, and a problem for this Court as
well as law enforcement. This opinion states:
Accordingly, we conclude that, in the absence of a
search warrant, the use of thermal imaging as a criminal
investigative tool implicates Article II, Section 10 of
Montana's Constitution and requires the demonstration of
a compelling state interest, other than enforcement of
the criminal law. [Emphasis supplied.]
Surely this Court does not intend that under no circumstances
may thermal imaging ever by used along with other facts to
establish probable cause for issuance of a search warrant.
In enforcement of the criminal law involving certain crimes
that viciously threaten the lives of our citizens, such as
homicides at the hands of serial killers or fanatics who may kill
hundreds of citizens by bombing public facilities, the use of
thermal imaging may be an essential tool, along with other credible
information, that would lead to a valid search warrant and arrest
of the perpetrators.
/S/ J. A. TURNAGE
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