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I. Overview

The memorandum addresses some legal issues, including:

Legality of search and arrest of... TOPICS SPECIFICALLY FOR YOU

1. Right of police officers to use outside devices to obtain private information,

2. Is information, obtained via the device suitable foundation for obtaining a search warrant?

3. Can seizure of private property without necessary warrant be legal, even in case the property is related to unlawful activity?

4. Can property, seized in such a way, be used as proper evidence before the court?

II. Facts

The facts of the case are as follows:

Tom Foolery is a resident of Austin, Texas, has been arrested and charged of marijuana growing. Police used a special thermal-image scanning device to conduct monitoring of Foolery’s house and detect unusual, emanating therefrom. The device has been used without proper search warrant, however, indeed significant amounts of marijuana have been found in a search, that followed.

III. Issues

1. Has use of thermal-image scanning device to obtain private information about Tom Foolery been legal?

2. Is information, obtained by using such a device suitable to obtain a search warrant?

3. Has seizure of marijuana and production facilities from Foolery’s home been legal?

4. Can those production facilities and confiscated marijuana serve as proper evidence before the court?

IV. Brief Answers

1. No, use of such a device has not been legal

2. Such information is not suitable, however, much depends on court’s discretion.

3. Yes, it has been legal.

4. Practice of the Supreme Court tends to believe, that they can not be proper evidences.

V. Discussion

1. Has using of thermal-monitoring device without a warrant been legal?

Amendment 4 to the US Constitution expressly provides, that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. Therefore, two basic elements are necessary for a search to be legal: 1) Probability, supported by Oath or affirmation and 2) detailed description of a place to be searched and objects to be seized. In this respect we should mention the opinion of Justice John Marshall Harlan II in the Griswold v. Connecticut, who noted, that privacy is protected not only by direct guarantees of the Constitution, but also by due process. The opinion has been supported by Justice Byron White. Therefore, a basic question of the case, whether use of outside devices, including heat-monitoring device, can be considered to be a search and intrusion into privacy. It should be also mentioned, that in the Katz v. United States, the Supreme Court has found out that “What a person knowingly exposes to the public, even in his own house, is not a subject of Fourth Amendment protection… But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”[1]

Available case law provides that: “Where,  the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search,” and is presumptively unreasonable without a warrant.”[2] And that “Use of thermal imaging devices to gather information about heat in home’s interior is not removed from scope of Fourth Amendment search merely because device captures only heat radiating from external surface of house, and thus involves “off-the-wall” rather than “through-the-wall” observation.”[3] Moreover, in the Silverman v. the United States the Court has found, that “In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes”[4] Therefore, it is clear, that a search warrant must have been obtained before making observations with a heating control device as it is due under the Fourth amendment.

2. Is it legal to issue a search warrant based on evidence, obtained with a heat-monitoring device?

As the Fourth Amendment states, “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation”. Therefore, a question is, whether information from outside monitoring can be considered as sufficient affirmation. We should now refer to “probable case standard”. In the Brinegar v. United States the Court noted that “the substance of all the definitions of probable cause is a reasonable ground for belief of guit… On many occasions, we have reiterated that the probable-cause standard is a “‘practical, nontechnical conception’” that deals with “‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act”[5] So, it appears, that the matter of legality of a particular search warrant remains at the discretion of the court, since no direct definition of probable cause is now available.

3. Can marijuana plants, seized without observation of due process serve as evidence before the Court.

In the McNabb v. United States the Supreme Court ruled that “the foundation of which is evidence obtained in disregard of liberties deemed fundamental by the Constitution, cannot stand.”[6]  Nevertheless, court practice on the matter appears to be quite contradictory. In the Wolf v. Colorado the Court held that “the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.”[7] In the Mapp v. Ohio it has been explained, that “Fourth Amendment’s ban against unreasonable searches and seizures is considered together with the Fifth Amendment’s ban against compelled self-incrimination, a constitutional basis emerges which not only justifies but actually requires the exclusionary rule.”[8] However, this point of view is rejected by the Supreme Court. In the Ex Parte Jackson case a decision has been delivered, that “the Constitution should not, and does not permit criminal convictions obtained by means of unlawful seizures and forced confessions”[9]. So, despite of contradictions in the court practice, the Supreme Court still accepts, that evidence, obtained illegally, can not be proper.

VI. Conclusion

It should be concluded, that available case law tends to interpret the Fourth Amendment rather broadly, explaining, that use of outside devices to gain information about personal life does constitute intrusion into individual’s privacy, even in case a person does not tend to hide intimate details about himself. Foundations for issuance a warrant in such a case a vague and depend wholly on whether a particular court accepts probable case standard or not. Even in case traces of illegal activity (marijuana plants in our case) are found, their applicability as evidence appears to be doubtful. The question in the case, whether a court recognizes, that due process has been observed. And since observation with a heat-monitoring device is by itself a violation of due process, confiscated marijuana, under purely legal requirements, can not serve as evidence. Another question is whether the Court accepts a formal, or material approach to the matter. It is obvious, that storage of marijuana plants is a misconduct, and the protection should refer to procedural rules to break prosecutor’s position.


1. Katz v. U.S., 389 U.S. 347 (1967)

2. Danny Lee Kyllo v. The United States, 533 U.S. 27, 37 (2001)

3. Silverman v. the United States, 365 U.S., at 512, 81 S.Ct. 679

4. Brinegar v. United States, 338 U.S. 160, 176 (1949)

5.  McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819

6.  Wolf v. Colorado, 338 U.S. 25 (1949)

7. Mapp v. Ohio, 367 U.S. 643 (1961)

8.  Ex parte Jackson, 96 U.S. 727, 733

[1] Katz v. U.S., 389 U.S. 347 (1967)

[2] Danny Lee Kyllo v. The United States, 533 U.S. 27, 37 (2001)

[3] Supra note

[4] Silverman v. the United States, 365 U.S., at 512, 81 S.Ct. 679
[5] Brinegar v. United States, 338 U.S. 160, 176 (1949)

[6] McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819

[7] Wolf v. Colorado, 338 U.S. 25 (1949)

[8] Mapp v. Ohio, 367 U.S. 643 (1961)

[9] Ex parte Jackson, 96 U.S. 727, 733

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