ATHENS, Ga. — A public defender will argue before the Georgia Supreme Court today that authorities used technology to illegally seize evidence and charge his client as an indoor marijuana farmer.
Authorities used a thermal imaging device to detect a “hot spot” in the garage of James Brundige’s home on Club Drive, then presented that to a judge as evidence that the hot spots probably were caused by high-intensity lights used to grow pot plants indoors.
The judge granted a search warrant, and on May 29, 2009, agents with the Northeast Georgia Regional Drug Task Force went into the home and found an indoor marijuana farm.
Brundige, 28, was charged with manufacture of marijuana, possession with intent to distribute marijuana and possession of a controlled substance. He pleaded “not guilty,” and his attorney sought to have the case dismissed in Superior Court by arguing the evidence was illegally seized.
The mere presence of a hot spot didn’t justify a search warrant, according to the attorney, Western Judicial Circuit Assistant Public Defender Benjamin Pearlman.
“A search warrant commands an officer to enter onto someone’s premises to search for a specific thing, something tangible that you can touch, that a jury can examine,” Pearlman said. A reading from a device that indicates a large amount of heat is not something that can be held, he said.
The attorney used that argument in efforts to suppress the seized evidence in Superior Court, and when that failed he brought the case to the Georgia Court of Appeals and lost again.
Today, Pearlman hopes that the state Supreme Court justices will see his reasoning.
“Logically, search warrants are sought by officers to enable them to search for and seize evidence which would be brought to court and introduced in the course of proving the state’s case against a defendant,” Pearlman argues in a brief he filed with the court. “Heat or heat loss, standing alone, cannot be brought to court for a jury to examine.”
State law states that “a search warrant may not be issued for anything other than physical, tangible evidence,” but the law does not define what tangible means.
According to “Black’s Law Dictionary,” something is tangible when “having or possessing physical form; capable of being touched and seen; capable of being understood by the mind.”
Prosecutors concede in briefs with the court that tangible, “in its most basic form,” refers to something that can be touched. However, they argue, “it also includes definitions such as definable and measurable, readily apprehensible by the mind.”