Brundige v. State
Brundige v. State
Opinion of the Court
This Court granted a writ of certiorari to the Court of Appeals in Brundige v. State, 310 Ga. App. 900 (714 SE2d 681) (2011), to determine whether the definition of “tangible evidence,” as that term is used in OCGA § 17-5-21 (a) (5), includes evidence gained by thermal imaging. Although we find that the Court of Appeals was incorrect in determining that the term “tangible evidence” encompasses the evidence at issue, we nonetheless affirm that Court’s judgment.
The record reveals that in May 2009, Detective Brandon Cain, a University of Georgia police officer assigned to a drug task force, after receiving a tip from a confidential informant, investigated an individual who was suspected of growing marijuana. The informant told Cain that the suspect had sold marijuana and growing paraphernalia to him, and offered to help the informant begin his own grow operation, and that the informant had been in a car with the suspect when marijuana was present. Investigation revealed that the suspect had been convicted of manufacturing marijuana and possession with intent to distribute in connection with an August 2000 incident. Detective Cain conducted a “trash pull” at the suspect’s house, removing trash bags from trash cans located at the edge of the roadway, and found “an amount of green leafy material that field tested positive for marijuana” and items consistent with an operation devoted to growing marijuana indoors.
During his investigation, Detective Cain discovered that the suspect visited the residence of James Brundige nine times in one week. Cain then conducted a “trash pull” at Brundige’s residence and found “pieces of plastic Ziploc bags . . . [an] empty rolling papers packet[,] and an amount of marijuana in a size that is consistent with a marijuana grow operation.” An examination of Brundige’s criminal history revealed a felony arrest for marijuana possession in 2003 and a misdemeanor arrest for marijuana possession in 2008. Cain then compared the electrical use of Brundige’s residence with that of a nearby home that was approximately the same size; it showed a “considerable disparity” in power consumption between the two homes over the course of a year, with Brundige’s residence consuming up to nine times the electricity of the similar home.
Detective Cain resolved to gain further information regarding activity in Brundige’s residence by using a thermal detection device that would remotely sense the differing temperatures of the surface of the home, and of the immediate area around it; this would allow an inference to be made about the heat inside the various areas of the
Pursuant to that warrant, on May 22, 2009, Cain and another detective used a thermal imaging device to examine the exterior of the house and detected an amount of heat coming from Brundige’s garage considered to be abnormal, especially when compared with the heat loss from a nearby similar house.
As noted above, under Kyllo, supra, a scan of a person’s home with a thermal imaging device is a Fourth Amendment search that ordinarily requires a warrant. However, Brundige claims that securing such a warrant is not authorized under OCGA § 17-5-21 (a) (5). That statute provides that a judicial officer may issue a search
Nor do we believe that the term “tangible evidence” as used in the statute otherwise embraces the “amorphous heat loss” captured by the thermal imaging used here. Rather, the word “tangible” must be
Giving the word “tangible” full effect, it appears that the General Assembly intended “tangible evidence” to mean evidence that is essentially an object with material form that could be touched by a person. See New Shorter Oxford English Dictionary (Clarendon Press 1993) (defining “tangible” as “[a]ble to be touched; discernible or perceptible by touch; having material form”; from Latin tangere, “to touch”); Webster’s Third New International Dictionary (G. & C. Merriam Co., 1971) (“tangible” means “capable of being touched: able to be perceived as materially existent, esp. by the sense of touch”); American Heritage Dictionary of the English Language (Houghton Mifflin Co., 1992) (“tangible” is that which is “[discernible by the touch; palpable . . . [p]ossible to touch . . . real or concrete”). That meaning does not include the remotely-sensed heat at issue here.
The history of the statute also supports this construction. OCGA § 17-5-21 (a) (5)’s enactment, and its wording, was largely the product of then-precedent of the United States Supreme Court holding that certain concepts of property rights governed analysis of the protections afforded by the Fourth Amendment to the Constitution of the United States, and drew a distinction between “tangibles” other than private papers that could be the subject of a search warrant, and “mere evidence” that could not. See Brogdon v. State, 287 Ga. 528, 529-534 (2) (697 SE2d 211) (2010). OCGA § 17-5-21 (a) (5) was a “statutory rebuff” to that precedent. Id. at 533. And, the United States Supreme Court now has an understanding of “tangible evidence” similar to that which we embrace today. In United States v. New York Tel. Co., 434 U. S. 159, 169-170 (III) (98 SC 364, 54 LE2d 376) (1977), the Supreme Court considered a Federal Rule that defined property that could be seized pursuant to a warrant “to include documents, books, papers and any other tangible objects,” and discerned that the definition did not include a record of the electrical impulses caused by a dialed telephone, as such are “intangible.” The thermal heat registers at issue here are akin to such
However, the fact that the initial thermal imaging warrant was not authorized by OCGA § 17-5-21 (a) (5) does not, in this instance, result in the reversal of the judgment of the Court of Appeals. In issuing the first warrant, the judge specifically stated that “there is probable cause to believe that a crime is being committed or has been committed,” and that an indoor marijuana growing operation was on the premises. And, the second warrant, which authorized the entry of Brundige’s home and the seizure of physical, tangible evidence relating to the manufacture and sale of marijuana, was supported by the same information as that which was in the first warrant, with the only additional information being that gained from the thermal imaging search. As discussed above, the thermal imaging search pursuant to the first warrant was not authorized by OCGA § 17-5-21 (a) (5) and was for a purpose not authorized by that provision, to wit, the acquisition of thermal imaging information. Assuming that obtaining the thermal imaging information was not otherwise authorized, when faced with improperly obtained evidence, the question becomes whether, excising the evidence improperly obtained, probable cause nonetheless exists to issue a warrant. See Carter v. State, 283 Ga. 76, 77 (2) (656 SE2d 524) (2008); Rothfuss v. State, 160 Ga. App. 863, 864 (288 SE2d 579) (1982). And here, we have no hesitation concluding that it does. Indeed, the other evidence was, by itself, actually found by the trial court to establish probable cause for a search of the premises. Accordingly, the evidence seized under the second warrant is admissible.
Judgment affirmed.
There is no indication in the record that a warrant was secured to perform a search of this second home. See Kyllo, supra.
OCGA § 17-5-21 reads:
(a) Upon the written complaint of any certified peace officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws and otherwise as authorized in Code Section 17-5-20 under oath or affirmation, which states facts sufficient to show probable cause that a crime is being committed or has been committed and which particularly describes the place or person, or both, to be searched and things to be seized, any judicial officer authorized to hold a court of inquiry to examine into an arrest of an offender against the penal laws, referred to in this Code section as “judicial officer,” may issue a search warrant for the seizure of the following:
(1) Any instruments, articles, or things, including the private papers of any person, which are designed, intended for use, or which have been used in the commission of the offense in connection with which the warrant is issued;
(2) Any person who has been kidnapped in violation of the laws of this state, who has been kidnapped in another jurisdiction and is now concealed within this state, or any human fetus or human corpse;
(3) Stolen or embezzled property;
(4) Any item, substance, object, thing, or matter, the possession of which is unlawful; or
(5) Any item, substance, object, thing, or matter, other than the private papers of any person, which is tangible evidence of the commission of the crime for which probable cause is shown.
(b) When the peace officer is in the process of effecting a lawful search, nothing in this Code section shall be construed to preclude him from discovering or seizing any stolen or embezzled property, any item, substance, object, thing, or matter, the possession of which is unlawful, or any item, substance, object, thing, or matter, other than the private papers of any person, which is tangible evidence of the commission of a crime against the laws of this state.
(c) Any retired judge or judge emeritus of a state court may issue search warrants as authorized by this Code section if authorized in writing to do so by an active judge of the state court of the county wherein the warrants are to be issued.
(d) Notwithstanding any provisions of Code Section 17-5-20 or other provisions of this Code section to the contrary, with respect to the execution of a search warrant by a certified peace officer employed by a university, college, or school, which search warrant will be executed beyond the arrest jurisdiction of a campus policeman pursuant to Code Section 20-3-72, the execution of such search warrant shall be made jointly by the certified peace officer employed by a university, college, or school and a certified peace officer of a law enforcement unit of the political subdivision wherein the search will be conducted.
The scope of the writ of certiorari in this case does not embrace any statutory provision other than OCGA § 17-5-21 (a) (5).
Of course, should the General Assembly wish to establish a statutory scheme to authorize warrants to capture heatlossfrom structures, it has the power to do so. See, e.g., OCGA § 16-11-64 et seq., authorizing electronic surveillance warrants in order to capture sounds.
This resolution makes it unnecessary to address the second question this Court posed on certiorari, namely whether evidence obtained by a search warrant must be suppressed when there is an intentional delay in executing the mandate set forth in OCGA § 17-5-25 that a duplicate copy of the warrant be left at the searched premises. There is no dispute that OCGA § 17-5-25 was complied with in the execution of the second warrant.
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