OLYMPIA - Using infrared detection devices without a warrant to snoop on private homes violates the inhabitants' constitutional rights to privacy, the state Supreme Court ruled yesterday.
The unanimous decision overturned the conviction of Alan Young on a charge of possession of marijuana with intent to manufacture or deliver.
Young was convicted in Snohomish County in 1991 after Edmonds police searched his home and found marijuana and evidence of a pot-growing operation.
The search was conducted under a properly issued warrant. However, probable cause for the search warrant was based on information gathered by using an infrared device.
Before getting the warrant, police used the device to check heat patterns of Young's home and other houses in the neighborhood after receiving a tip that Young operated "a big marijuana grow."
In his appeal, Young contended the warrantless infrared surveillance of his home constituted a search that falls under state constitutional provisions that state, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."
The court agreed in a decision written by Justice Charles Johnson.
Johnson conceded that a police officer's visual surveillance does not constitute a search if the officer sees something with the unaided eye from a nonintrusive vantage point.
But Johnson wrote that a particularly intrusive method of viewing may constitute a search.
In the Young case, using the infrared device enabled police to, in effect, "see through the walls" of the home, Johnson wrote. "The device goes well beyond the enhancement of natural senses," he said.
The state contended the infrared device used in the Young case revealed only crude information and should not be considered a search.
Johnson disagreed, saying that linking the right of privacy to the constantly changing state of technology could erode that right.
"The current boundaries of police surveillance . . . allow police to conduct effective investigations without depriving people of the sense of privacy they have held and are entitled to hold in this state," Johnson wrote.
"We are not prepared to extend those boundaries to include warrantless infrared surveillance."
Edmonds Assistant Police Chief Wally Tribuzio said the court's decision does not outlaw the use of infrared surveillance, it simply adds another step in the process by first requiring a search warrant.
"(In this case) we could easily have gotten a search warrant to use the infrared, if one had been required at the time," he said.
In most cases, using such surveillance is just one piece of the information used to establish probable cause. "I don't know of any cases where (an infrared search) has been used as the sole criteria for getting a search warrant," Tribuzio said.
Karen Alexander of The Seattle Times Snohomish County bureau contributed to this report.