Tenth Circuit Says Thermal Imaging Is a Search, Contrary to Other Circuits

IN THE COURTS December 1995

The U.S. Court of Appeals for the Tenth Circuit ruled on October 4 that police officers must obtain a warrant in order to conduct a thermal imaging scan of a home, becoming the first circuit to consider such use of the new technology a search (U.S. v. Cusumano, Nos. 94-8056, 58 CrL 1046, 1995USWL584973 (10th Cir. 1995); "CA10 Fuses Science and Law as it Rules on Thermal Imaging," BNA Criminal Practice Manual, October 25, 1995, p. 537).

Thermal imaging devices, or FLIRs (forward-looking infrared devices), map relative heat levels over an area. Imaging units, which look similar to home camcorders, cost between $25,000 and $100,000 and have been used to detect indoor marijuana growing operations (see "Thermal Imaging -- Newest Weapon in 'War on Drugs'; Court Rules Use is Not a Search," NewsBriefs, September-October 1994, p. 6).

The Tenth Circuit found that the government does not use thermal imaging to find out the amount of heat coming from a building, as other circuits have argued in their opinions. Rather, the government conducts the scan to obtain information about what is happening inside the structure.

The Tenth Circuit also found that other circuits were incorrect in likening a thermal imaging scan to a dog sniff of luggage. Thermal imaging is more like using a microphone to record conversations, the court said.

The Fifth, Eighth, Ninth, and Eleventh Circuits have all looked at thermal imaging and determined that it does not constitute a search (U.S. v. Penny-Feeney, 773 F. Supp 220, 49 CrL 1467 (DC Hawaii 1991), affirmed on other grounds, 984 F.2d 1053 (9th Cir. 1993); U.S. v. Myers, 46 F.3d 668, 56 CrL 1451 (7th Cir. 1995); U.S. v. Pinson, 24 F.3d 1056, 55 CrL 1193 (8th Cir. 1994); U.S. v. Ford, 34 F.3d 992, 56 CrL 1027 (11th Cir. 1994); U.S. v. Ishmael, 48 F.3d 850, 57 CrL 1013 (5th Cir. 1995). The Washington Supreme Court has ruled that thermal imaging is a search (State v. Young, 867 P.2d 593, 54 CrL 1497 (Wash. SupCt 1994)).