GA: Thermal imaging is not a proper basis for a search warrant under state law, but PC otherwise exists

A thermal imaging warrant violated Georgia state law because search warrants can only be for “tangible evidence.” There was, however, plenty of probable cause for a search of the house based on everything else known before that, so the search would not be suppressed. Brundige v. State, 291 Ga. 677, 735 S.E.2d 583 (2012):

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 given some effect, or become mere surplusage. See Slakman, supra. Although the Court of Appeals noted that heat radiating from a building is “real and substantial, rather than imaginary[,]” such a formulation would cause “tangible” to become superfluous in the wording of OCGA § 17-5-21 (a) (5); there is no such thing as imaginary evidence.

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 “[d]iscernible by the touch; palpable … [p]ossible to touch … real or concrete”). That meaning does not include the remotely-sensed heat at issue here.