Marijuana seizure illegal, Ga. court will be told

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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.”

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nothin2show4it
120
Points
nothin2show4it 06/11/12 - 08:24 am
0
0
Illegal Honestly?
Unpublished

That completely astounds me. The lawyer is actually say that the police used illegal technical techniques to find someone doing something illegally?

What a dope head. The lawyer must be the number one client of Brudige.

nothin2show4it
120
Points
nothin2show4it 06/11/12 - 08:26 am
0
0
Illegal Honestly?
Unpublished

I've got a good idea. Why not stop growing pot and change to tomatoes and sell them at the farmers market. This way you are doing something productive and legal. Duh

seenitB4
84423
Points
seenitB4 06/11/12 - 08:30 am
5
3
Here it is

Authorities used a thermal imaging device to detect a “hot spot” in the garage of James Brundige’s home on Club Drive

Didn't we say that they can see what you ae doing inside your home---what room you are in--etc. A human would be a hot spot too...

JRC2024
8285
Points
JRC2024 06/11/12 - 08:50 am
11
0
I wonder what happens when

I wonder what happens when people install the thermal reflecting foil on the bottom of their rafters or the spray in foam insulation. Will that make the entire house a hot spot. Both reflect heat. I would think that the warrant would have to be for a specific item and not give anyone the right to just look at everything in the home. While I do not condone drugs, I do not condone an "open ended" warrent to look for anything

Jeepster2001
268
Points
Jeepster2001 06/11/12 - 08:55 am
9
0
Hot Spot
Unpublished

I'm afraid that I would have to side with the defendant in this case. They could've staked out the house for buyers, but only a thermal image is pushing the envelope.

dichotomy
31713
Points
dichotomy 06/11/12 - 09:06 am
13
0
The war on drugs

The war on drugs unfortunately has brought us illegal searches and illegal property seizures. What's really unfortunate is that the courts are complicit in these illegal search and seizures because they get a cut of the profits. Sounds like a conflict of interest to me. And now terrorism has given the government the excuse to monitor us in our homes, on the phone, in our cars, on the street, and on the internet. Some agencies and states are now using drones domestically. All in the name of keeping us safe. But are we safe from our own government?

Mugatu
16
Points
Mugatu 06/11/12 - 09:25 am
4
0
See Kyllo v. U.S.

I think the Supreme Court has already weighed in on this one pretty clearly:

http://en.wikipedia.org/wiki/Kyllo_v._United_States

CobaltGeorge
153644
Points
CobaltGeorge 06/11/12 - 09:31 am
6
2
Just a Stupid Question

"charged with manufacture of marijuana" Someone tell me how you can manufacture a PLANT?

Retired Army
17512
Points
Retired Army 06/11/12 - 09:40 am
13
3
Dichotomy and others get a

Dichotomy and others get a rare thumbs up, Mugatu thanks for the source.

With the Supreme court already deciding this issue, why in blue blazes are our law enforcement and prosecutors wasting our tax dollars in this pursuit?

Just another example of a failed policy and real waste of resources. Some schlep wants to raise and smoke a little dope with his compatriots in his home? Leave him be.

itsanotherday1
41410
Points
itsanotherday1 06/11/12 - 09:52 am
7
2
I told you Hades was cooling off

I just gave RA another thumbs up.

CobaltGeorge
153644
Points
CobaltGeorge 06/11/12 - 10:04 am
6
2
iad

I did too!

Retired Army
17512
Points
Retired Army 06/11/12 - 10:14 am
6
3
You guys just keep coming

You guys just keep coming back. We'll get you straightened out eventually.

CG, don't you dare drink booze with that new med. Prescription drugs have fast become a leading killker of seniors simply because they think if a doctor gave it to me....

Be smarter than that.

madgerman
236
Points
madgerman 06/11/12 - 10:16 am
0
0
I often wonder how the police
Unpublished

I often wonder how the police can justify a crime of "intent to distribute" without actually seeing some trying to sell or give something away. I agree with Dicodomy that it appears to be a conflict of interest but who is to argue with sitting princes of power.

JohnBrownAug
1962
Points
JohnBrownAug 06/11/12 - 10:27 am
6
0
"Police turn up heat on

"Police turn up heat on 'cannabis factory' seen by thermal camera ... only to find workshop STOVE"
http://www.dailymail.co.uk/news/article-1156763/Police-turn-heat-cannabi...

omnomnom
3964
Points
omnomnom 06/11/12 - 10:34 am
5
1
i think i had to thumbs up

i think i had to thumbs up everyone

Techfan
6461
Points
Techfan 06/11/12 - 11:06 am
8
1
Wouldn't a space heater,

Wouldn't a space heater, using your stove, or even the hot air coming from your HVAC vents create hot spots as well? We're getting a little too Big Brothery(sp?) on this one.

Iwannakno
1533
Points
Iwannakno 06/11/12 - 11:11 am
1
0
I'm no drug advocate...but
Unpublished

Maybe if we didn't have people like this in jail we wouldn't need to release killers, robbers and repeat offenders so much....

stillamazed
1488
Points
stillamazed 06/11/12 - 11:23 am
8
0
I am not against protecting

I am not against protecting our country but we all are intitled to privacy in our own homes. If I was on this jury I would have to side with the accused. I certainly agree with Techfan on Big Brother, he is getting a little to big for his pants!

Duncan-20903
20
Points
Duncan-20903 06/11/12 - 12:01 pm
4
0
augustahistorybuff
49
Points
augustahistorybuff 06/11/12 - 01:25 pm
4
0
Two cases to ponder

While Kyllo v U.S. (2001) is one of the cases to review, another is titled People v Duetsch (1996). Although, what the defendant was doing was against the law, if you only go by search and seizure and the exclusionary rule, then the case and evidence should be thrown out. It never should have gotten to the Georgia Supreme Court.

gindyman
7
Points
gindyman 06/11/12 - 03:38 pm
1
1
heat seekers

please go to pa. v. gindlesperger. yes this is my win in pa . same deal.

dstewartsr
20389
Points
dstewartsr 06/11/12 - 07:01 pm
4
0
The problem is

...the state of Georgia has not enacted legislation which allows the issuance of a thermal surveillance; as it is, the device does not produce tangible physical evidence of criminal activity. The prosecutor in this case played a game of overreach and found (yet another) jurist ignorant, or more likely contemptuous of Constitutional protections.

CobaltGeorge
153644
Points
CobaltGeorge 06/11/12 - 07:07 pm
0
0
Gee

I never thought we had so many lawyers on here.

Willow Bailey
20580
Points
Willow Bailey 06/11/12 - 10:41 pm
2
1
And just when I thought we

And just when I thought we were going to have a group hug, CG. I guess the moment is ruined:)

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