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Brundige v. State

Heat loss, which a thermal scanner can measure and record, does not fit within the scope of tangible evidence as that term is used in O.C.G.A. § 17-5-21 a 5—authorizing a search warrant for ' "the seizure of . . . any item, substance, object, thing, or matter, other than the private papers of any person, which is tangible evidence of the commission of the crime for which probable cause is shown." '

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This Court granted a writ of certiorari to the Court of Appeals in Brundige v. State, 310 Ga. App. 900 714 SE2d 681 2011, to determine whether the definition of “tangible evidence,” as that term is used in OCGA § 17-5-21 a 5, includes evidence gained by thermal imaging. Although we find that the Court of Appeals was incorrect in determining that the term “tangible evidence” encompasses the evidence at issue, we nonetheless affirm that Court’s judgment.

The record reveals that in May 2009, Detective Brandon Cain, a University of Georgia police officer assigned to a drug task force, after receiving a tip from a confidential informant, investigated an individual who was suspected of growing marijuana. The informant told Cain that the suspect had sold marijuana and growing paraphernalia to him, and offered to help the informant begin his own grow operation, and that the informant had been in a car with the suspect when marijuana was present. Investigation revealed that the suspect had been convicted of manufacturing marijuana and possession with intent to distribute in connection with an August 2000 incident. Detective Cain conducted a “trash pull” at the suspect’s house, removing trash bags from trash cans located at the edge of the roadway, and found “an amount of green leafy material that field tested positive for marijuana” and items consistent with an operation devoted to growing marijuana indoors.

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