cannabisnews.com: Court Rejects Infra-Red Drug Search





Court Rejects Infra-Red Drug Search
Posted by CN Staff on January 27, 2003 at 23:40:06 PT
By Kirk Makin
Source: Globe and Mail 
Your home is your castle — right down to the heat that leaks out of it. The Ontario Court of Appeal extended the right of privacy to intrusive technological advances Monday, acquitting a man whose hydroponic marijuana operation was detected by police who flew overhead with infra-red equipment.
"The nature of the intrusiveness is subtle, but almost Orwellian in its theoretical capacity," the court said in a 3-0 ruling.It said police must henceforth obtain search warrants for these flyovers, since the heat they measure may emanate from other private activities that generate surges of energy."Some perfectly innocent internal activities in the home can create the external emanations detected and measured by Forward Looking Infra-Red aerial cameras," Madam Justice Rosalie Abella wrote. "Many of them, such as taking a bath or using lights at unusual hours, are intensely personal."There is a clear distinction between the kind of observation police make using the naked eye or binoculars and more threatening forms of intrusion that are the product of technology, she said.The ruling erased an 18-month sentence imposed against a Windsor, Ont., handyman, Walter Tessling, whose home contained enough marijuana plants to yield many kilograms of the narcotic.The court noted that in view of an evolving "public, judicial and political" recognition that marijuana is a less serious narcotic than it was once seen to be, it was preferable to exclude the ill-gotten evidence.Writing on behalf of Mr. Justice Dennis O'Connor and Mr. Justice Robert Sharpe, Judge Abella said Mr. Tessling must also be acquitted of possessing several unlicensed handguns.RCMP conducted the aerial surveillance in 1999, after getting a tip from an informant who was unfamiliar to them that Mr. Tessling and a friend were producing and trafficking marijuana.Defence counsel Frank Miller said Monday's ruling under the Charter of Rights signals that courts are aware of the threat future technology poses to vital civil liberties."As far as I'm concerned, this is the essence of freedom," he said in an interview. "Why should the police know whether someone is taking a sauna, firing a kiln, growing orchids or growing marijuana?"He said infra-red surveillance will be subject to the same laws that exist for obtaining warrants to conduct a raid, plant a listening device or intercept phone calls."What is novel is that this case involves what is known as 'off-the-wall technology' — where inferences can be drawn about what is going on in your home without the police going anywhere near it," Mr. Miller said.Police in the Tessling case were told by Ontario Hydro officials that there was no unusual hydro usage at his home. Still suspicious, they flew over using equipment.Crown counsel James Leising and Moiz Rahman defended the evidence on the basis that any violation of Mr. Tessling's privacy interest was trivial. They said individuals have no reasonable expectation of privacy about the heat emitted from their homes, and nor does it reveal intimate details about their activities.However, the court said that Mr. Tessling clearly had a reasonable expectation of privacy, and that it was unreasonably violated."While I accept that technically what is being scrutinized is heat from the surface of a home, it is impossible to ignore the fact that those surface emanations have a direct relationship to what is taking place inside the home," it said.From Tuesday's Globe and MailSource: Globe and Mail (Canada)Author: Kirk MakinPublished: Tuesday, January 28, 2003Copyright: 2003 The Globe and Mail CompanyContact: letters globeandmail.caWebsite: http://www.globeandmail.com/Related Articles & Web Site:Cannabis News Canadian Linkshttp://freedomtoexhale.com/can.htmSnooping for Indoor Pot Farms? http://cannabisnews.com/news/thread10123.shtmlX-Ray Vision - Time Magazinehttp://cannabisnews.com/news/thread10086.shtmlCan't Scan Without a Warrant http://cannabisnews.com/news/thread10027.shtml
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Comment #4 posted by TroutMask on January 28, 2003 at 07:53:58 PT
Yes
Yes, FLIR was struck down in the US a good while back. But they can still test YOU.-TM
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Comment #3 posted by TecHnoCult on January 28, 2003 at 07:27:11 PT
US Supreme Court
Didn't the US Supreme Court make the same ruling regarding infrared technology? I believe someone in California was aquited because they used infrared without a warrant.THC
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Comment #2 posted by Ethan Russo MD on January 28, 2003 at 05:40:52 PT:
Spread the Word
Stories such as this, the Canadian Senate Report, and the other Canadian court cases need to waved in front of our officials, whether law enforcement, prosecutorial, defense, judicial, legislative, etc. Spread the word. We are the outliers. We are ignoring our own principles.
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Comment #1 posted by Duzt on January 27, 2003 at 23:54:08 PT
Canada, the true land of the free
What a wonderfully just country Canada is. Their judges care about justice, not their personal beliefs. America, the land of the free, yeah right, as long as you follow all the right rules (unless you're really rich, famous or a politician, then you make those rules so they don't apply to you).
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