Ontario Court of Appeal, Jan 27/03
Police investigating a suspected grow-op used an RCMP airplane equipped with a FLIR camera to detect heat emanating from a property owned by Walter Tessling. (The FLIR takes a picture of the thermal energy or heat radiating from the exterior of a building. It can detect heat sources within a home but it cannot identify the exact nature of that source or see inside the building.)
The FLIR camera in this case indicated that the appellant’s property had heat emanations potentially indicative of a marijuana grow. During a subsequent search, RCMP found a large quantity of marijuana, scales, and weapons, and Tessling received six months imprisonment for trafficking, as well as 12 months concurrent for weapons offenses.
The appeal court found that the warrantless use of the FLIR technology to detect heat emanating from Tessling’s home was a breach of his rights under section 8 of the Charter. The evidence was excluded and Tessling was acquitted.
The United States Supreme Court has also found that warrantless use of FLIR technology is an unlawful search constituting a violation of the Fourth Amendment.