Thermal imaging: much heat but little light - legal aspects of the thermal imager

FBI Law Enforcement Bulletin,The, Dec, 1997 by Thomas D. Colbridge

25 48 F.3d at 857. "The device, when used in an open field, does not offend the Fourth Amendment because it is passive and nonintrusive. The sanctity of one's home or business is undisturbed."

26 67 F.3d 1497 (10th Cir. 1995), vacated on rehearing en banc, 83 F.3d 1247 (10th Cir. 1996).

27 Id. at 1501.

28 Id. at 1503.

29 Id. at 1505-1506.

30 468 U.S. 705 (1984).

31 67 F.3d at 1507.

32 See e.g., Michael L. Huskins, Marijuana Hot Spots: Infrared Imaging and the Fourth Amendment, 63 Chi. L. Rev. 655 (Spring 1996); James Francis Barna, Reforming the Katz Fourth Amendment "Reasonable Expectation of Privacy" Test: The Case of Infrared Surveillance of Homes, 49 Wash. U. J. Urb. & Contemp. L. 247 (Summer 1996); Michael D. O'Mara, Thermal Surveillance and the Fourth Amendment: Heating Up the War on Drugs, 100 Dick. L. Rev. 415 (Winter 1996); Jonathon Todd Laba, If You Can't Stand the Heat, Get Out of the Drug Business: Thermal Imager, Emerging Technologies, and the Fourth Amendment, 84 Calif. L. Rev. 1437 (October, 1996).

33 State v. Young, 867 P.2d 593 (Wash. 1994) (The use of the thermal imager is a violation of both the Washington state and the federal constitutions.); State v. Siegal, 934 P.2d 176 (Mont. 1997) (Use of a thermal imager in a law enforcement context is a search under the Montana Constitution.).

34 Dow Chemical Co. v. United States, 476 U.S. 227 (1986).

35 Id. at 239.

36 Id. at 238.

37 United States v. Olson, 21 F.3d 847 (8th Cir. 1994) at 848, note 5. The court did not reach the issue of the use of the FLIR device, holding there was sufficient other evidence to support a finding of probable cause.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.