GA: SW for “heat loss” is for “tangible evidence” under Georgia law; tangible is something definable

Doing what Kyllo requires, “[t]he officer requested a warrant to use such a device to search the residence for ‘[anomalous] heat loss occurring at the described premises as a result of an indoor marijuana growing operation, which is being possessed in violation of The Georgia Controlled Substances Act[.]’ A judge granted the application and issued the warrant.” A thermographer was used to measure the heat loss. A copy of the warrant was left after the search. A second search warrant was used to search the house based on the product of the first warrant. Under state statute, a warrant was for “tangible evidence,” and defendant argued that “tangible evidence” did not include heat loss. Based on dictionary definitions, the court concludes that heat loss is “tangible evidence” in the concept of something definite and perceptible. Brundige v. State, 310 Ga. App. 900, 714 S.E.2d 681 (2011):

With these principles in mind, we have reviewed legal and general dictionaries to discern the common and ordinary meaning of the phrase “tangible evidence.” We note that logic dictates that use of the modifier “tangible” distinguishes such evidence from its opposite type, that is, intangible evidence. The phrase “intangible evidence” has been used to describe testimony or verbal statements. Because heat radiating from a building is not simply testimony or verbal evidence and because it is definable and measurable; it is real and substantial, rather than imaginary; it is capable of being clearly grasped by the mind; and it can, at least in some cases, be perceived through the sense of touch, we conclude that heat loss that is measured and recorded by a thermal scanner fits within the scope of “tangible evidence” as that term is used in OCGA § 17-5-21 (a) (5). Accordingly, the trial court did not err in concluding that that Code section authorized the first search warrant issued in this case, for the seizure of “anomalous heat loss” occurring at Brundige’s home.

We note that, when the Supreme Court of the United States decided Kyllo v. United States, electronic thermal scanning, a sense-enhancing technology that can be used to discern a person’s activities that are being conducted in a private, constitutionally protected area,7 was not “in general public use.” (Citation and punctuation omitted.) Kyllo v. United States, 533 U. S. at 34 (III).

7 See Kyllo v. United States, 533 U. S. at 29-30 (I); People v. Deutsch, 44 Cal. App. 4th 1224, 1229-1230 (I) (52 Cal. Rptr. 2d 366) (1996); John Wesley Hall, 1-9 Search and Seizure § 9.15 (3d ed. 2010) (Electronic thermal scanning does not merely measure wasted heat. Rather, “a trained thermal imaging operator can likely determine that a room is occupied and likely what the occupant of the room is doing (such as watching television, eating a meal, exercising, going to the bathroom, or even having sex).”) (footnotes omitted).