NJ: Pre-Kyllo thermal scan of home led to grand jury subpoenas and a knock and talk and was not unreasonable

Reversing its court of appeals (State v. Domicz, 377 N.J. Super. 515, 873 A.2d 630 (2005)), the New Jersey Supreme Court held that a thermal imaging of defendant’s home that was lawful at the time it was done that led to other investigative efforts, including a grand jury subpoena for records, and then knock and talk and a consent search, was not unreasonable. State v. Domicz, 188 N.J. 285, 907 A.2d 395 (September 20, 2006). The first four headnotes:

Under the circumstances, the warrantless thermal scan and seizure of electricity records did not constitute prior unlawful conduct that could have tainted the later search. Grand jury subpoena procedures adequately protect any privacy interest in utility records. Law enforcement officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence.

1. The record does not support a conclusion that the detectives engaged in prior unlawful conduct that tainted the consent search. At the time Detective Peacock conducted the thermal scan, a majority of federal courts had ruled that a thermal scan was not a “search” requiring a warrant under the Fourth Amendment. The detective’s failure to predict that one year later the United State[s] Supreme Court would reach the opposite conclusion cannot be considered part of a pattern of illegality or used to impair his credibility. (pp. 12-15)

2. A grand jury subpoena is sufficient to satisfy whatever privacy interest defendant had in his electricity records under Article I, Paragraph 7 of the State Constitution. The Court previously held that grand jury subpoena procedures sufficiently protect citizens’ reasonable expectation of privacy in bank records. There is no persuasive reason why utility records should be given more protection than bank records, which expose more about a person’s private life. (pp. 15-20)

3. The area around a home to which the public is welcome, such as a walkway leading to an entrance, is not given Fourth Amendment protection because the resident has given implied consent to visitors to approach the home that way. When a law enforcement officer walks to a back door of a home to make contact with a resident and, as the trial court found in this case, reasonably believes that the door is used by visitors, there is no unconstitutional trespass. (pp. 21-23)

4. Law enforcement officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence. The Court does not extend its decision in State v. Carty, 170 N.J. 632 (2002), which requires a reasonable and articulable suspicion of criminal wrongdoing before seeking consent to search a lawfully stopped motor vehicle, to the search of a home. Carty addressed concerns about racial profiling on New Jersey highways and widespread abuse of consent searches of vehicles stopped for minor traffic violations. There is no claim here that there is an abuse of consent searches of homes or that minority residents are disproportionately targeted by such searches. Also, a person in his home is under less compulsion to consent to a search than a motorist on the highway after a motor vehicle stop. (pp. 24-33)