Case developed by Chris Tweeten
2005
Disclaimer: The individuals named in this case are imaginary and
any resemblance to real persons, living or dead, is purely
coincidental.
STATE OF MONTANA,
Plaintiff and Respondent.
v.
FRED FARMER,
Defendant and Appellant.
Harry Hunter is a member of the Forest County Sheriff's Reserve and an avid sportsman. On the first day of hunting season, he is out at dawn trying to fill his elk tag on public land in the Bridger National Forest. By day's end he does not return, and his frantic spouse contacts the Forest County Sheriff, John Law.
Sheriff Law dispatches Search and Rescue to begin looking for Harry. They use a coordinated air and ground search. The helicopter conducting the air search is equipped with a thermal imaging device, which allows the search and rescue team to visualize heat patterns on the ground that indicate the presence of a warm-blooded animal (like Harry).
After an hour of fruitless searching, the helicopter flies over a cabin on national forest land. In training the thermal imager on the ground occupied by the cabin, Sheriff Law observes a heat discharge pattern that he knows, from his training, to be consistent with the presence inside the cabin of one or more high intensity grow lamps of the kind used in the cultivation of marijuana. The sheriff operates the recording device on the thermal imager and records the heat discharge pattern.
Later that night, Harry Hunter comes upon the same cabin. Finding it locked, he breaks a small window on the cabin door and enters the cabin, hoping to find a telephone to use to call for help. There he observes plants growing under high intensity grow lamps. Since the cabin has no telephone, Harry is unable to call for help. He leaves the cabin, walks down the road from the cabin to a paved highway, where he hitches a ride back to his car and drives home.
Later that day, while talking with Sheriff Law, Harry recounts what he saw in the cabin. He tells the sheriff that he believes the plants were marijuana based on his training with the sheriff's reserve. Sheriff Law makes the connection to the thermal imaging evidence he inadvertently obtained. He presents the information to the Forest County Attorney, who files an application for a search warrant supported by Sheriff Law's affidavit reciting Harry's observation, the thermal imaging evidence, and the sheriff's interpretation of it based on his training. The affidavit states as follows:
While conducting a helicopter search for a missing hunter, Sheriff Law made use of a thermal imaging device capable of displaying and recording the heat discharged by animal or man-made sources of heat on the ground. From his helicopter, Sheriff Law trained the thermal imaging device on a cabin located on National Forest land, with the intent to determine whether any heat discharge evidence would disclose the presence of the missing hunter. He did not observe any evidence of the presence of the missing hunter in or near the cabin, but did observe a heat discharge pattern which he knew by virtue of his training and experience to be consistent with the presence in the cabin of one or more high intensity lamps of the kind used for the indoor cultivation of marijuana. Sheriff Law recorded the image using a recording device incorporated in the thermal imaging equipment. Later that day, Sheriff Law learned that the missing hunter, Harry Hunter, had broken into the cabin searching for a telephone to use to call for help. Hunter reported to Sheriff Law that he did not find a telephone, but did observe plants in the cabin growing under bright artificial lights. Hunter told Sheriff Law he believed the plants were marijuana based on training he had received as a reserve officer in the Forest County Sheriff's reserve. From Hunter's description of the plants Sheriff Law concluded that they fit the description of marijuana plants.
The Justice of the Peace finds probable cause and issues the warrant.
The cabin is used as a residence by Fred Farmer, a local outfitter. When the warrant is executed, the officers find 10 marijuana plants in various stages of growth in the cabin, along with grow lamps, cultivation supplies, and four ounces of harvested marijuana. Farmer is arrested and charged with criminal possession of marijuana. Farmer moves to suppress the results of the search, arguing that the search invaded his rights to be free from unlawful searches and seizures and his right of privacy under the Montana constitution. He attacks the use of thermal imaging evidence and the admissibility of Hunter's testimony of his observations after breaking into Farmer's cabin. Farmer further moves to dismiss the charges, arguing that the marijuana was being grown for his private use and his right to privacy under the Montana constitution prevents his prosecution for possession of marijuana in his residence. The trial judge denies both motions. After a jury trial in the 26th Judicial District Court of Forest County, Fred Farmer is found guilty, and he appeals the conviction based on the denial of his motion to suppress and his motion to dismiss.
Issues:
1. Can the thermal imaging evidence, obtained without a warrant, and the evidence of Hunter's observations after breaking and entering Farmer's cabin, lawfully be used to establish probable cause?
2. Does the right to privacy under the Montana constitution protect the right to possess marijuana in a private residence?
CASES AND RELATED MATERIALS:
Both Issues:
Article II, § 10, Montana Constitution
State ex rel. Zander v. District Court, 591 P.2d 656 (Mont. 1979)
Issue 1:
Article II, § 11, Montana Constitution
State v. Siegal, 934 P.2d 176 (Mont. 1997)
State v. Bell, 737 P.2d 254 (Wash. 1987)
State v. Christensen, 797 P.2d 893 (Mont. 1990)
Section 45-6-203, Montana Code Annotated
§ 45-9-102, Montana Code Annotated
§ 46-5-101, Montana Code Annotated
§ 46-5-103, Montana Code Annotated
§ 46-5-220, Montana Code Annotated
§ 46-5-221, Montana Code Annotated
§ 46-5-224, Montana Code Annotated
Issue 2:
Article II, § 10, Montana Constitution
Ravin v. State, 537 P.2d 494 (Alaska 1975)
Gryczan v. State, P.2d (Mont. 1997)
State v. Murphy, 570 P.2d 1070 (Ariz. 1977)
State v. Kincaid, 566 P.2d 763 (Idaho 1977)
State v. Baker, 535 P.2d 1394 (Hawaii 1975)