Power Records, Thermal Imaging Fair Game in Marijuana Grow Case

By Robyn Hagan Cain on July 28, 2011 | Last updated on March 21, 2019

Warning: Defending hydroponic “gardeners’ in the Eighth Circuit just got harder.

In 2008, Nebraska police officers visited David McIntyre’s home to inquire about a trailer McIntyre purchased from a person of interest in a missing person case. Based on the smell of raw marijuana in his home and McIntyre’s past drug-related arrests, the officers requested a county attorney’s subpoena for McIntyre’s power records; the records indicated that McIntyre used more energy than his neighbors.

Next, the officers secured a thermal imaging warrant, citing one officer's allergic reaction to smell of raw marijuana, McIntyre's drug arrest history, the electrical usage record, observation of drug paraphernalia, and information about the use of thermal imaging in locating marijuana-growing operations as grounds for the warrant in the supporting affidavit.

The warrant was executed and returned to the court with a recording of thermal imagery showing more electrical usage in the garage than in the living areas of the house. Then the officers secured a second thermal imaging warrant to compare the thermal readings at McIntyre's home to his neighbors' homes; the second thermal image showed that, unlike McIntyre, the neighbors used more energy in their homes than in their garages.

Based on this evidence, the officers got a search warrant for McIntyre's home, where they discovered and seized a marijuana-growing operation. McIntyre conditionally pleaded guilty to knowingly and intentionally manufacturing and attempting to manufacture 100 or more marijuana plants, but asserted on appeal that the district court erred by not suppressing the county attorney subpoena, thermal imaging search warrants, and a search warrant of his home.

The court rejected McIntyre's power record privacy argument, finding that he did not have an objectively reasonable expectation of privacy in his power records because, in using electricity, he voluntarily conveyed numerical information to the power company and 'exposed' that information to its equipment in the ordinary course of business."

The court was likewise unsympathetic to McIntyre's argument that he was entitled to a Franks hearing to suppress the fruits of the thermal imaging warrant because the warrant contained false statements. The court noted that there was no evidence that the officers deliberately or recklessly made false statements or that the statements were material.

McIntyre's assertion that the district court erred by declining to suppress the search warrant of his home was based on his arguments that the district court should have suppressed the power records and thermal imaging search warrants. As the Eighth Circuit had already rejected his previous arguments, it found that the search warrant for his home pot garden yielded legitimately-seized fruit of the poisonous weed, not the forbidden fruit of the poisonous tree.

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