High Court Finds Expectation of Privacy in 'Heat Waste'

In 1994, a confidential informant told Erie County Mobile Drug Task Force Officer Gerald Pfadt that Gregory Gindlesperger was growing marijuana at his home.



The informant also told the officer that Gindlesperger was using artificial lights to provide heat and light for the plants to grow.



A member of the Pennsylvania Army National Guard Drug Force joined local officers in using a thermal imaging device known as a “WASP” device to scan Gindlesperger’s home. The device would show if any “noticeable amounts of extraneous heat” were present in the home.



The device showed that there was an inexplicable heat source in the basement that was not consistent with a furnace or other home-heating source.



A search warrant based on the results of the thermal imaging scan of the house was then issued to search Gindlesperger’s home and on April 19, 1994, officers confiscated 21 marijuana plants.



Gindlesperger was arrested on drug charges, and the trial court denied his motion to suppress the fruits of the search. After a bench trial, Gindlesperger was convicted on all charges.



Gindlesperger appealed the trial court’s decision to allow the evidence. The Superior Court sided with him, finding that the use of the WASP device was a violation of the Fourth Amendment to the U.S. Constitution.

Constitutional Rights

The commonwealth appealed the Superior Court’s decision to the Supreme Court.



Throughout the proceedings, Gindles-perger preserved a state constitutional claim under Article 1, Section 8. That section of the state constitution has greater protections than the Fourth Amendment, so if the court were to find a violation of the Fourth Amendment, it would effectively find a violation of that section of the state constitution.



On appeal, the commonwealth argued the search was constitutional because “one does not have a subjective expectation of privacy in the ‘heat waste’ that emanates from one’s residence.”



Courts that have upheld the use of thermal imaging devices using the “heat waste” theory ruled that the thermal imager is “a passive device” which is used off the premises and does not intrude on the interior of the house.



But courts that have found the use of the device to be “constitutionally repugnant” have ruled that thermal imagers “reveal intimate details regarding activities occurring within the sanctity of the home, the place deserving the utmost protection.”



The court said Gindlesperger met the test enunciated in the U.S. Supreme Court case, Katz v. United States, in that he had a “legitimate expectation of privacy” in the heat sources throughout his home.



The court then determined that the use of the WASP device “revealed critical information regarding the interior of the premises that could not have otherwise been obtained.”



Accordingly, the court affirmed the Superior Court’s decision finding the search unconstitutional under the U.S. Constitution.

Dissent