I wonder if low cost TICs set a legal precedence for the 4th amendment?

[Ben321]

I remember reading a while ago about this case https://en.wikipedia.org/wiki/Kyllo_v._United_States where a guy got his case thrown out on appeal because the police violated his 4th amendment rights, by using a thermal imager to monitor his home. Basically the cops used a thermal camera to monitor his home's heat output. Though they couldn't see inside, the amount of heat they saw coming from his home indicated that he could be running a marijuana growing operation inside and using high power lights for growing the plants. They used the thermal image as evidence to get a search warrant, and with that warrant they performed a search of the house in which they did find the illegal growing operation, so they arrested him. While he plead guilty, he also reserved the right to contest the evidence gathering, which he did on appeal, and the case got thrown out by the US Supreme Court. They ruled that the very use of the thermal camera to monitor his house, because it was done without a warrant, constituted a 4th amendment violation.

A very important part of the this decision was based on the fact that thermal imager cameras were NOT widely available to the general public, and that was true at the time this court case took place. It was back in 2001, when thermal imager cameras were prohibitively expensive, even for low resolution ones (about $25000 for even a 320x240 thermal imager). Now days though, you can easily get a 320x240 thermal imager like the Seek thermal cameras, for just a few hundred dollars (or a low cost 640x480 thermal camera core for about $3000), making them easily accessible to the general public. So I wonder, if that same court case happened today, would the outcome be different? Would the Supreme Court rule that thermal imagers now are so easily available to the public, that such use of a thermal imager by the police without a warrant would no longer constitute an illegal search?

And maybe I'm being a bit paranoid here, but I wonder if that's exactly WHY these thermal imagers are so cheap now. Has the government been subsidizing companies that sell cheap thermal cameras, in order to encourage them to sell them cheaply to the general public, so that such cameras could be considered widely publicly available, and thus empowering the government to legally use them on people's houses without a warrant?

[Fraser]

That case was a good example of the stupidity of a legal system that actually ends up protecting the criminals instead of prosecuting them with equal vigour!

In my book, if it can be seen from the public environment, such as a street or even from the air, it is public domain and information may be collected to support an escalation where deemed appropriate. If a thermal camera sees heat emissions outside the nominal, it is providing information on the outside of a dwelling caused by activity within so I cannot see why a Warrant would be required at that stage. Any intention to enter a property should be correctly planned and appropriate authority applied for via the Warrant application system. In the UK we were appalled by that appeal panel legal decision in the USA.

And no, the US Government are not subsidising thermal camera sales to change a legal position/loophole that was tenuous to start with. There are easier ways to overcome that “unusual” decision.

[james_s]

While I agree in principal, I also find the fact that it's illegal to grow a naturally occurring plant in your own home to be completely absurd. It is absolutely nobody's business what an individual does in the privacy of their own home. They legalized recreational use of pot in my state several years ago and mostly decriminalized growing it, despite much hand wringing there have been essentially no consequences that I've seen, other than apparently a reduction in alcohol sales. The predicted pandemonium as stoned drivers flood our roads has not happened.

[Fraser]

As a side note, I own a covert thermal imaging camera called the Snoop-IR that was made for law enforcement use against Marijuana growing houses. It contains an Indigo OMEGA/FLIR M10 and the output video is recorded on an Archos Media Recorder (DVR). This unit saw active service in the UK  . The Marijuana growers are aware of the use of thermal imaging cameras by law enforcement thanks to the requirement to reveal intelligence sources during a trial. Mind you, it remains hard to hide the amount of heat that those grow lamps produce ! Police Helicopters see them easily as the roof glows hot compared to others around it. In the winter the roof of the growing houses are not covered in frost or snow so they kind of stand out to the unaided eye of an observer 

[james_s]

I can believe it when they were using 1kW metal halide and HPS lamps. I would expect these days LED grow lights are a lot more viable and probably easier to hide. Being a collector of lamps and possessing many HID lamps that I've occasionally run indoors perhaps I should have been concerned with getting raided.

Seems like I read it was common around here for large growers to seek out rental houses that had all electric resistance heat, it would mask the power consumption of the HID lamps.

[Fraser]

Good point. LED lighting has greatly decreased the heat energy produced. My Snoop-IR dates back to the early 2000’s so is old technology and was disposed of as Surplus by a police force.

[Ben321]

While I agree in principal, I also find the fact that it's illegal to grow a naturally occurring plant in your own home to be completely absurd. It is absolutely nobody's business what an individual does in the privacy of their own home. They legalized recreational use of pot in my state several years ago and mostly decriminalized growing it, despite much hand wringing there have been essentially no consequences that I've seen, other than apparently a reduction in alcohol sales. The predicted pandemonium as stoned drivers flood our roads has not happened.

It's not just growing plants that tend to be used for drugs. It's the same for a number of other relatively harmless activities, that are intended to be used to support illegal activities. For example, in some states if you are caught with items that the law considers "burglars tools" (such as lock picks), then that is a criminal offense, and the cops can arrest you for possession of those items, even before you ever attempt to break into a building. You can only own them if you are a licensed locksmith. The reason for such laws, is that they are designed to criminalize activities that lead up to a crime, in order to prevent the crime from occurring (rather than just punishing you after you already have caused damage by committing the intended crime). The idea is that some crimes are harmful enough, that it's necessary to prevent them from occurring, rather than just responding after they have already occurred.

In the case of marijuana growing, that activity usually leads to the illegal act of actually consuming the drug, something that the government considers harmful enough to society to have created a law to punish the consumption of that drug, and created other laws to try to prevent a person from ever getting the drug to start with (criminalizing of growing the plant in this case). I think the government feels that each person is an asset to society as a whole, and that when you are harming anyone, whether it's harm to others (like robbery) or harm to yourself (like taking drugs), you are causing harm to assets to society, and the government is trying to prevent its assets (its citizens) from being harmed.

[james_s]

That logic completely falls apart when you realize that it is perfectly legal to eat all of the cheeseburgers wrapped in bacon and dipped in lard as you want, and polish it off with a large milkshake. It's perfectly legal to literally drink yourself to death with alcohol. It's perfectly legal to smoke four packs of cigarettes a day. It's perfectly legal to live a sedentary lifestyle and never exercise. If someone wants to consume some other drug in the privacy of their own home that is none of the government's business and laws against such things are tyrannical bullshit. I own a set of lockpicks too, I am not a burglar and have no intent of ever using them for anything nefarious. Sometimes I legitimately acquire something with a lock that I do not have the key for, sometimes I just enjoy picking a lock for the challenge. I don't believe it's illegal to own them in this state, although I could probably get in trouble if I was caught with them on me while lurking somewhere at night.

[Bill W]

The Marijuana growers are aware of the use of thermal imaging cameras by law enforcement thanks to the requirement to reveal intelligence sources during a trial.

One reason that there were a lot of thermal cameras stolen from fire trucks - to go find the rival gangs stashes !

Have had to back trace more than one camera history for that reason.

Bill

[David Hess]

A very important part of the this decision was based on the fact that thermal imager cameras were NOT widely available to the general public, and that was true at the time this court case took place. It was back in 2001, when thermal imager cameras were prohibitively expensive, even for low resolution ones (about $25000 for even a 320x240 thermal imager). Now days though, you can easily get a 320x240 thermal imager like the Seek thermal cameras, for just a few hundred dollars (or a low cost 640x480 thermal camera core for about $3000), making them easily accessible to the general public. So I wonder, if that same court case happened today, would the outcome be different? Would the Supreme Court rule that thermal imagers now are so easily available to the public, that such use of a thermal imager by the police without a warrant would no longer constitute an illegal search?

I had the same thought at the time because even back then, I had a cooled far infrared thermal camera with sufficient performance to do that kind of surveillance.  It can see the footsteps people leave behind.

But that kind of thermal camera is still not commonly available thanks to ITAR and cost.

[Ultrapurple]

With great respect to the OP, the 4th Amendment to which he refers is only applicable to one country. The greater part of the world has a range of different laws that may, or may not, offer similar impediments to law enforcement / protection of citizens (delete according to taste).

[David Hess]

With great respect to the OP, the 4th Amendment to which he refers is only applicable to one country. The greater part of the world has a range of different laws that may, or may not, offer similar impediments to law enforcement / protection of citizens (delete according to taste).

I doubt our 4th Amendment matters in this case.  Law enforcement will still do the surveillance, in violation of the 4th Amendment, and then use parallel construction to get a warrant anyway.

[richnormand]

Remember reading somewhere (I'll post a link if I find it back) LEO getting a warrant for a suspect illegal growth in a shed from IR evidence,
Got it:
"Thanks to a drone Equipped with a thermal camera"
https://news.in-24.com/business/37802.html

https://www.theverge.com/2021/5/28/22458632/bitcoin-mine-mistaken-cannabis-growing-operation-police#:~:text=Police%20in%20the%20United%20Kingdom,electricity%20from%20a%20mains%20supply.

Turned out to be a perfectly legal mining setup for Bitcoins operation... except for stealing the electricity

[Bill W]

An even more unusual one from the UK, story told by drug enforcement who had bought some thermal cameras from e2v with modified software.

Was common practice that the response helicopter would have a general thermal look around when returning from a call out.
Found a house in a *very* nice suburban area glowing like mad, so referred it to the drug enforcement to have a look on the ground. 
They in turn were a bit surprised when it turned out to be the chief constables' sister (or similar - that bit probably grew with retelling).
So went along in 'nice' mode rather than with a battering ram.  It was a quite new build house and the reason for the heat was .... the builders had not put in the roof insulation 

Police footage then 'made available' to sue the builders.