Filed 6/17/15 P. v. Greenspan CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065585
Plaintiff and Respondent,
v. (Super. Ct. No. SCD239375)
HOWARD MAURICE GREENSPAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.
Lasater, Judge. Affirmed.
Law Offices of Lance Rogers and Lance Rogers; Law Offices of Joshua J. Hamlin
and Joshua J. Hamlin, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General; Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V.
Hawley, Deputy Attorneys General, for Plaintiff and Respondent. Howard Greenspan appeals from a judgment convicting him of marijuana
cultivation and other offenses arising from his operation of a marijuana "grow" operation
in a commercial building. He contends the police conducted an unlawful warrantless
search of the building through the use of a thermal imaging device, and hence the trial
court erred in denying his motion to suppress evidence thereafter seized by the police.
We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 22, 2012, the police executed a search warrant at a commercial
building and seized numerous items related to defendant's marijuana grow operation. As
we shall detail below, the probable cause showing for the search warrant was based in
part on information derived from a warrantless thermal imaging scan of defendant's
building conducted by a police officer during a search for a suspect in an unrelated armed
robbery.
After being charged with various offenses and filing an unsuccessful motion to
suppress the evidence seized by the police, defendant ultimately pled guilty to cultivation
of marijuana, possession of marijuana for sale, and making space available for storing
marijuana for sale. The court suspended imposition of sentence and placed defendant on
five years of formal probation.
The Thermal Imaging Scan of Defendant's Building
Defendant filed a motion to suppress the evidence seized from his building based
on his claim that the evidence was the fruit of an illegal, warrantless thermal imaging
scan of the building. The record on appeal does not include the reporter's transcript of the
2 hearing on the suppression motion where the officer who conducted the thermal imaging
scan testified. Accordingly, our summation of the facts concerning the thermal imaging
scan is derived from the police officer's affidavit submitted in support of the application
for a warrant to search defendant's building.
According to the search warrant affiant, at 1:55 a.m. on December 18, 2011, the
police responded to a robbery involving a gun at 30th and Imperial Avenue in San Diego.
The responding officers were unable to locate the robbery suspect, and police pilot Kevin
Means arrived in a helicopter to help in the search. Officer Means used a Forward
Looking Infrared (FLIR) thermal imaging device to assist in the attempt to locate the
suspect.
While searching for the suspect with the thermal imaging device, Officer Means
observed a structure at 2953 Imperial Avenue (later identified as defendant's building)
which was emitting "high amounts of heat from a roof top vent and had a dangerously
overloaded power line leading to an overloaded transformer on a power pole located in
the south alley." Based on his training and experience, Officer Means believed the "heat
anomalies of this structure were consistent with heat anomalies commonly associated
with indoor marijuana grows." The FLIR scan of the building was videotape recorded.
The building was a single story commercial building, with an iron fence enclosing the
front and rear of the building. The address was depicted on a placard attached to the front
fence, and there were no visible markings showing a business name.
Regarding the nature of FLIR thermal imaging, Officer Boyce explained: "A
FLIR thermal imaging device is a passive, non-intrusive system which detects differences
3 in surface temperature of an object being observed. This system does not send any beams
or rays into an area nor does it enter any structure area. The system only detects the
differences in the surface temperature of an object. The use of this device in the early
morning or evening, without solar loading (sunshine), highlights man-made heat sources
as a white color and cooler temperatures by shades of gray. Similar devices such as this
have been used with other applications such as locating missing persons in a forest,
identifying inefficient building insulation, detecting hot, overloaded power lines, and
detecting forest fire lines through smoke."
After obtaining the information concerning defendant's building via the thermal
imaging scan, the police investigated the matter for several weeks. They observed a car
registered to defendant parked at the building on several occasions, including during
daylight hours and late at night. City records showed there was no business tax or
corporation information filed for the building's address. San Diego Gas & Electric
Company (SDG&E) records showed defendant was the account holder for the building,
and he also had an SDG&E account at a residence at a different location. Defendant's
January 2012 electric bill at the Imperial Avenue building was $1,837.08, which reflected
an "extremely high" energy usage compared to two other commercial businesses on the
same block that were open six to seven days per week. Officer Boyce explained indoor
marijuana operations use high intensity lights to create artificial sunlight, and these lights
use large quantities of electricity and can create tremendous amounts of heat. The lights
are often inside closed fixtures connected to ducts which vent the heated air out of the
marijuana grow rooms by forced air.
4 Trial Court's Denial of Suppression Motion
In support of his suppression motion, defendant argued the officer's use of the
thermal imaging device constituted an unlawful warrantless search of his building. In
opposition, the prosecution contended there was no constitutional violation because the
police were legitimately using the thermal imaging device under exigent circumstances to
search for the robbery suspect, and they could properly seize any evidence seen in plain
view during the course of their legitimate emergency activities.
When denying the suppression motion, the trial court found that defendant had a
reasonable expectation of privacy in his commercial building, but that Officer Means's
observation of the building did not constitute a search, or alternatively, it was a
reasonable search. The court found Officer Means was lawfully entitled to be in the
location from which he made the original observation, and his observation of the heat
anomaly was "inadvertent and fleeting" and a " 'plain view' " observation. Further, the
heat anomaly that he observed was "immediately apparent" as an indoor marijuana grow
operation; he did not conduct an exploratory search; and his view was not tainted by any
illegality.
DISCUSSION
I. Search and Seizure Principles
A. Warrant Requirement for Constitutionally Protected Areas
The Fourth Amendment protects against unreasonable searches and seizures, and
generally requires that a warrant be issued before a search or seizure. (Texas v. Brown
(1983) 460 U.S. 730, 735 (Brown).) In Kyllo v. United States (2001) 533 U.S. 27 (Kyllo),
5 the court held the use of a thermal imaging device to detect relative amounts of heat
within a home constituted a search for Fourth Amendment purposes, and hence the
warrantless use of the device to investigate a suspected marijuana grow operation was
constitutionally impermissible. (Id. at pp. 29, 34-35.) The court reasoned that privacy
expectations are heightened for a home; the police had engaged in more than naked-eye
surveillance of the home; and the heat information obtained by the police concerned
matters about the inside of the home even though the imaging did not actually penetrate
the home. (Id. at pp. 33-40.) The court concluded that "obtaining by sense-enhancing
technology any information regarding the interior of the home that could not otherwise
have been obtained without physical 'intrusion into a constitutionally protected area'
[citation] constitutes a search . . . ." (Id. at p. 34.) The Kyllo court distinguished its
holding in Dow Chem. Co. v. United States (1986) 476 U.S. 227 (Dow Chemical), which
found the use of advanced aerial photography to obtain images of the open areas of a
commercial property did not constitute a search. (Id. at p. 239.) Kyllo explained, "Dow
Chemical . . . involved enhanced aerial photography of an industrial complex, which does
not share the Fourth Amendment sanctity of the home." (Kyllo, supra, at p. 37.)
Although the home is entitled to a heightened level of privacy protection, "a
business establishment or an industrial or commercial facility [also] enjoys certain
protections under the Fourth Amendment." (Dow Chemical, supra, 476 U.S. at p. 235.)
In Dow Chemical, the court stated there was a reasonable expectation of privacy within
the interior of the business's covered buildings, even though it found the outdoor areas of
the business were not shielded from advanced aerial surveillance. (Id. at p. 236; People
6 v. Lee (1986) 186 Cal.App.3d 743, 746 [interior office not open to general public
afforded privacy protection from warrantless intrusion].)
B. Warrantless Seizures Permitted Under Plain View Doctrine
Notwithstanding the general constitutional prohibition against warrantless
searches of constitutionally protected areas, the courts have recognized "a wide range of
diverse situations" that provide for "flexible, common-sense exceptions" to the warrant
requirement, including the " 'plain view' doctrine." (Brown, supra, 460 U.S. at p. 735.)
The plain view doctrine can apply in two situations, (1) when an officer observes an
object in a public place, or (2) when an officer observes an object that is " ' "situated on
private premises to which access is not otherwise available for the seizing officer." ' "
(Id. at p. 738.) When the object is in a public place, the " 'seizure of property in plain
view involves no invasion of privacy and is presumptively reasonable, assuming that
there is probable cause to associate the property with criminal activity.' " (Ibid.) When
the object is in a private place, the officer may seize the property in open view if the
officer has lawfully made the initial intrusion into the private place or is otherwise
properly in a position from which he or she can view the particular area. (Id. at pp. 737-
738.)
The application of the plain view doctrine to private places "provides grounds for
seizure of an item when an officer's access to an object has some prior justification under
the Fourth Amendment. 'Plain view' is . . . simply . . . an extension of whatever the prior
justification for an officer's 'access to an object' may be." (Brown, supra, 460 U.S. at pp.
738-739, italics added, fn. omitted.) The rule "reflects an application of the Fourth
7 Amendment's central requirement of reasonableness to the law governing seizures of
property." (Id. at p. 739.) The courts reason that "once police are lawfully in a position
to observe an item first-hand, its owner's privacy interest in that item is lost; the owner
may retain the incidents of title and possession but not privacy." (Illinois v. Andreas
(1983) 463 U.S. 765, 771.) Considering the nature of the owner's interests and the
legitimacy of the police activity during plain view observations, the courts have
concluded there is no reason to impose a warrant requirement upon the police. (Brown,
supra, 460 U.S. at p. 739.)
As explained in Arizona v. Hicks (1987) 480 U.S. 321, "the practical justification
of [the] extension [of the plain view doctrine to private places] is the desirability of
sparing police, whose viewing of the object in the course of a lawful search is as
legitimate as it would have been in a public place, the inconvenience and the risk—to
themselves or to preservation of the evidence—of going to obtain a warrant." (Id. at p.
327; Minnesota v. Dickerson (1993) 508 U.S. 366, 375 [plain view doctrine "justified by
the realization that resort to a neutral magistrate under such circumstances would often be
impracticable and would do little to promote the objectives of the Fourth Amendment"];
Washington v. Chrisman (1982) 455 U.S. 1, 9 ["when a police officer, for unrelated but
entirely legitimate reasons, obtains lawful access to an individual's area of privacy[,] [t]he
Fourth Amendment does not prohibit seizure of evidence of criminal conduct found in
these circumstances"].)
Thus, "if, while lawfully engaged in an activity in a particular place, police
officers perceive a suspicious object, they may seize it immediately." (Brown, supra, 460
8 U.S. at p. 739, italics added.) The seizure of the item in plain view does not require the
existence of exigent circumstances because it is the prior justification for the police
presence in the private area that permits the seizure. (See Commonwealth v. Person
(Super. Ct. Pa. 1989) 560 A.2d 761, 767-768 [plain view permitted seizure even though
"there was plenty of time to obtain a search warrant"]; State v. Lair (Wash. 1981) 630
P.2d 427, 432-433; Brown, supra, 460 U.S. at pp. 738-739.) Further, the rule applies
even when the discovery of the incriminating evidence occurs while the police are
lawfully engaging in activities unrelated to the accused. (Horton v. California (1990)
496 U.S. 128, 135-136 (Horton).) " 'The doctrine serves to supplement the prior
justification—whether it be a warrant for another object, hot pursuit, search incident to
lawful arrest, or some other legitimate reason for being present unconnected with a
search directed against the accused—and permits the warrantless seizure.' " (Ibid.,
italics added.)
In addition to the requirement of a lawful initial intrusion, the plain view doctrine
requires that it "be 'immediately apparent' to the police that the items they observe may
be evidence of a crime . . . ." (Brown, supra, 460 U.S. at p. 737.) The "immediately
apparent" requirement equates with probable cause; i.e., the officer may seize the items if
"the facts available to the officer would 'warrant a man of reasonable caution in the belief
[citation] that certain items may be . . . useful as evidence of a crime; it does not demand
any showing that such a belief be correct or more likely true than false. A 'practical,
nontechnical' probability that incriminating evidence is involved is all that is required."
(Id. at p. 742.)
9 However, under the plain view doctrine the police may not conduct a further
search to determine if probable cause exists; rather, to justify the seizure, the probable
cause must exist at the time of the observation of the item. (Minnesota v. Dickerson,
supra, 508 U.S. at p. 375 [if "the police lack probable cause to believe that an object in
plain view is [incriminatory] without conducting some further search of the object . . . the
plain-view doctrine cannot justify its seizure"]; Arizona v. Hicks, supra, 480 U.S. at p.
328 [plain view doctrine may not be used " 'to extend a general exploratory search from
one object to another until something incriminating at last emerges' "].) Also, the police
may not seize the item even if it is in plain view unless they have "a lawful right of access
to the object itself"; i.e., they must be able to seize the property from the position where
they are legitimately located, and absent exigent circumstances they may not enter
premises where they are not authorized to be to accomplish a warrantless seizure.
(Horton, supra, 496 U.S. at p. 137 & fn. 7; State v. Betts (Tex.Crim.App. 2013) 397
S.W.3d 198, 206-207 [absent exigent circumstances, police could not enter backyard
even though they saw evidence of crime in plain view from street]; United States v. Davis
(4th Cir. 2012) 690 F.3d 226, 233-234.) On the other hand, assuming the police have
probable cause to believe the item is associated with criminal activity, the authority to
seize the item includes the authority to further inspect the item at the time of seizure.
(Arizona v. Hicks, supra, 480 U.S. at p. 326 [if probable cause exists for seizure, object
may be moved for closer examination].)
10 C. Standard on Appeal
When reviewing the denial of a suppression motion on appeal, we defer to the trial
court's express and implied findings if they are supported by substantial evidence, and, on
the facts so found, exercise our independent judgment in determining the constitutionality
of the search or seizure. (People v. Tully (2012) 54 Cal.4th 952, 979.)
II. Analysis
Applying these general principles here, defendant had a reasonable expectation of
privacy in the interior of his business premises that were not open to the public. (Dow
Chemical, supra, 476 U.S. at p. 235; People v. Lee, supra, 186 Cal.App.3d at p. 746.)
Further, we will assume for purposes of our analysis that, under the reasoning of Kyllo,
supra, 533 U.S. 27, the thermal imaging scan constituted a search within the meaning of
the Fourth Amendment even though the building was commercial rather than residential.
However, unlike the circumstances in Kyllo, at the time of the thermal imaging
scan the police here were not conducting a warrantless search of defendant's building
based on their suspicion that he had a marijuana grow operation inside the building.
Rather, at the time of the thermal imaging scan of defendant's building, the police were
looking for an unrelated armed robbery suspect. These circumstances triggered
application of the plain view doctrine.
The record shows the police were legitimately engaged in a search for the armed
robbery perpetrator, and it was reasonable for them to use the thermal imaging device to
search for the perpetrator in the outdoor areas of the neighborhood where the robbery
occurred. The closeness of the location of the robbery (30th and Imperial Avenue) and
11 defendant's building (2900 block of Imperial Avenue) reflects that the thermal imaging
scan was confined to an area where the robbery suspect could have fled. During the
course of this legitimate search—which occurred in the early morning hours after the
1:55 a.m. robbery report—the officer was using the thermal imaging device when he
noticed a large amount of heat emanating from the rooftop vent and electrical wires of
defendant's building and from the attached electrical transformer located on the power
pole in the alley. Based on his training and experience, the officer knew these
observations were consistent with an indoor marijuana growing operation because such
operations typically use high intensity lights, generate a lot of heat, use vents to discharge
the heat, and consume large amounts of electricity, and this usage would occur even in
the early morning hours when the commercial building was likely unoccupied. The
officer's observations and specialized knowledge provided him probable cause to believe
the heat images were evidence of criminal activity.
Based on this probable cause, the officer was entitled to "seize" the heat images
and use them in support of the application for a warrant to search defendant's building.
The officer was engaging in a lawful search for a suspect using a lawful means; during
this search he observed the suspicious item (the distinctive heat differentials associated
with the vent, electrical wires, and transformer) from a place that he was entitled to be; it
was immediately apparent to the officer that the heat might be useful evidence of a crime;
the probable cause existed without the need to conduct any further search beyond the
already-justified thermal imaging scan; and the officer was lawfully in a position to seize
the information without the need to enter onto the building's premises. These
12 circumstances satisfied the requirements of the plain view doctrine and authorized the
officer to immediately seize the evidence without obtaining a warrant and returning to the
building to again conduct a thermal imaging scan.
To support his challenge to the court's denial of the suppression motion, defendant
contends there was nothing to indicate the suspect would be inside his building and the
police used the robbery suspect search as a pretext to conduct a warrantless search of his
building. The trial court was not required to find that the facts showed a pretextual
search. To the contrary, the trial court could reasonably conclude the police were
generally searching the outdoor areas near the robbery scene for the suspect, and during
this legitimate search they happened to obtain images from a building in close proximity
to the robbery location.
Defendant posits the officer "positioned the FLIR scanner on [his] property and
continued to observe the property in order to discover heat sources within the
premises. . . . The use of FLIR was not a mistaken view of [his] property, but rather an
intrusive invasion of the contents of the property." Contrary to defendant's claim, there is
nothing in the record to suggest the officer aimed the thermal imaging device at
defendant's building during a search that was divorced from the proper search for the
robbery suspect. The robbery scene was within one block of defendant's building, and it
was clearly reasonable for the thermal imaging scan to encompass this one block area
while searching for the robbery suspect. Also, to the extent the officer may have
13 continued recording the thermal images at defendant's building once he observed the
significant heat differentials, this was a reasonable means to accomplish the "seizure" of
the evidence already supported by probable cause.
Exercising our independent judgment on the legality of the search and seizure,
there was no Fourth Amendment violation given the applicability of the plain view
doctrine. Accordingly, the trial court properly denied the suppression motion.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
NARES, J.