Filed 7/8/15 P. v. Greenspan CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065585

         Plaintiff and Respondent,                                  (Super. Ct. No. SCD239375)

         v.                                                          ORDER DENYING PETITION
                                                                     FOR REHEARING, GRANTING
HOWARD MAURICE GREENSPAN,                                            AUGMENTATION OF THE
                                                                     RECORD, AND MODIFYING
         Defendant and Appellant.                                    OPINION

                                                                     NO CHANGE IN JUDGMENT

THE COURT:

         Appellant's petition for rehearing is DENIED.

         Appellant's request to AUGMENT the record to include Exhibits A and B attached

to the petition for rehearing is GRANTED.

         EXHIBIT A: "PC 1538.5 Hearing," Reporter's Transcript, August 28, 2012.

         EXHIBIT B: SDPD Video 2462, DVD.

         The opinion filed on June 17, 2015, is MODIFIED as follows:

         1. The last paragraph commencing on page 2 and continuing to page 3 of the

opinion is deleted in its entirety and replaced with the following paragraph:
              Defendant filed a motion to suppress the evidence seized from his building

based on his claim that the evidence was the fruit of an illegal, warrantless thermal

imaging scan of the building. The relevant facts are as follows.

       2. The first sentence of the first full paragraph on page 3 of the opinion is deleted

and replaced with the following sentence:

              At 1:55 a.m. on December 18, 2011, the police responded to a robbery

involving a gun at 30th and Imperial Avenue in San Diego.

       3. The first sentence of the last paragraph commencing on page 3 and continuing

to page 4 of the opinion is deleted and replaced with the following sentence:

              Regarding the nature of FLIR thermal imaging, the narcotics detective who

secured the search warrant (Schuyler Boyce) explained: "A FLIR thermal imaging

device is a passive, non-intrusive system which detects differences in surface temperature

of an object being observed.

       4. The last sentence of the last paragraph commencing on page 13 and continuing

to page 14 of the opinion is deleted and replaced with the following sentence:




                                             2
              Also, to the extent the officer continued recording the thermal images at

defendant's building once he observed the significant heat differentials, this was a

reasonable means to accomplish the "seizure" of the evidence already supported by

probable cause.

       THERE IS NO CHANGE IN JUDGMENT.




                                                                       MCCONNELL, P. J.




                                             3
Filed 6/17/15 P. v. Greenspan CA4/1 (unmodified version)
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065585

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD239375)

HOWARD MAURICE GREENSPAN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.

Lasater, Judge. Affirmed.

         Law Offices of Lance Rogers and Lance Rogers; Law Offices of Joshua J. Hamlin

and Joshua J. Hamlin, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General; Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V.

Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
       Howard Greenspan appeals from a judgment convicting him of marijuana

cultivation and other offenses arising from his operation of a marijuana "grow" operation

in a commercial building. He contends the police conducted an unlawful warrantless

search of the building through the use of a thermal imaging device, and hence the trial

court erred in denying his motion to suppress evidence thereafter seized by the police.

We find no error and affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On February 22, 2012, the police executed a search warrant at a commercial

building and seized numerous items related to defendant's marijuana grow operation. As

we shall detail below, the probable cause showing for the search warrant was based in

part on information derived from a warrantless thermal imaging scan of defendant's

building conducted by a police officer during a search for a suspect in an unrelated armed

robbery.

       After being charged with various offenses and filing an unsuccessful motion to

suppress the evidence seized by the police, defendant ultimately pled guilty to cultivation

of marijuana, possession of marijuana for sale, and making space available for storing

marijuana for sale. The court suspended imposition of sentence and placed defendant on

five years of formal probation.

The Thermal Imaging Scan of Defendant's Building

       Defendant filed a motion to suppress the evidence seized from his building based

on his claim that the evidence was the fruit of an illegal, warrantless thermal imaging

scan of the building. The record on appeal does not include the reporter's transcript of the

                                             2
hearing on the suppression motion where the officer who conducted the thermal imaging

scan testified. Accordingly, our summation of the facts concerning the thermal imaging

scan is derived from the police officer's affidavit submitted in support of the application

for a warrant to search defendant's building.

       According to the search warrant affiant, at 1:55 a.m. on December 18, 2011, the

police responded to a robbery involving a gun at 30th and Imperial Avenue in San Diego.

The responding officers were unable to locate the robbery suspect, and police pilot Kevin

Means arrived in a helicopter to help in the search. Officer Means used a Forward

Looking Infrared (FLIR) thermal imaging device to assist in the attempt to locate the

suspect.

       While searching for the suspect with the thermal imaging device, Officer Means

observed a structure at 2953 Imperial Avenue (later identified as defendant's building)

which was emitting "high amounts of heat from a roof top vent and had a dangerously

overloaded power line leading to an overloaded transformer on a power pole located in

the south alley." Based on his training and experience, Officer Means believed the "heat

anomalies of this structure were consistent with heat anomalies commonly associated

with indoor marijuana grows." The FLIR scan of the building was videotape recorded.

The building was a single story commercial building, with an iron fence enclosing the

front and rear of the building. The address was depicted on a placard attached to the front

fence, and there were no visible markings showing a business name.

       Regarding the nature of FLIR thermal imaging, Officer Boyce explained: "A

FLIR thermal imaging device is a passive, non-intrusive system which detects differences

                                                3
in surface temperature of an object being observed. This system does not send any beams

or rays into an area nor does it enter any structure area. The system only detects the

differences in the surface temperature of an object. The use of this device in the early

morning or evening, without solar loading (sunshine), highlights man-made heat sources

as a white color and cooler temperatures by shades of gray. Similar devices such as this

have been used with other applications such as locating missing persons in a forest,

identifying inefficient building insulation, detecting hot, overloaded power lines, and

detecting forest fire lines through smoke."

       After obtaining the information concerning defendant's building via the thermal

imaging scan, the police investigated the matter for several weeks. They observed a car

registered to defendant parked at the building on several occasions, including during

daylight hours and late at night. City records showed there was no business tax or

corporation information filed for the building's address. San Diego Gas & Electric

Company (SDG&E) records showed defendant was the account holder for the building,

and he also had an SDG&E account at a residence at a different location. Defendant's

January 2012 electric bill at the Imperial Avenue building was $1,837.08, which reflected

an "extremely high" energy usage compared to two other commercial businesses on the

same block that were open six to seven days per week. Officer Boyce explained indoor

marijuana operations use high intensity lights to create artificial sunlight, and these lights

use large quantities of electricity and can create tremendous amounts of heat. The lights

are often inside closed fixtures connected to ducts which vent the heated air out of the

marijuana grow rooms by forced air.

                                              4
Trial Court's Denial of Suppression Motion

        In support of his suppression motion, defendant argued the officer's use of the

thermal imaging device constituted an unlawful warrantless search of his building. In

opposition, the prosecution contended there was no constitutional violation because the

police were legitimately using the thermal imaging device under exigent circumstances to

search for the robbery suspect, and they could properly seize any evidence seen in plain

view during the course of their legitimate emergency activities.

        When denying the suppression motion, the trial court found that defendant had a

reasonable expectation of privacy in his commercial building, but that Officer Means's

observation of the building did not constitute a search, or alternatively, it was a

reasonable search. The court found Officer Means was lawfully entitled to be in the

location from which he made the original observation, and his observation of the heat

anomaly was "inadvertent and fleeting" and a " 'plain view' " observation. Further, the

heat anomaly that he observed was "immediately apparent" as an indoor marijuana grow

operation; he did not conduct an exploratory search; and his view was not tainted by any

illegality.

                                       DISCUSSION

                             I. Search and Seizure Principles

              A. Warrant Requirement for Constitutionally Protected Areas

        The Fourth Amendment protects against unreasonable searches and seizures, and

generally requires that a warrant be issued before a search or seizure. (Texas v. Brown

(1983) 460 U.S. 730, 735 (Brown).) In Kyllo v. United States (2001) 533 U.S. 27 (Kyllo),

                                              5
the court held the use of a thermal imaging device to detect relative amounts of heat

within a home constituted a search for Fourth Amendment purposes, and hence the

warrantless use of the device to investigate a suspected marijuana grow operation was

constitutionally impermissible. (Id. at pp. 29, 34-35.) The court reasoned that privacy

expectations are heightened for a home; the police had engaged in more than naked-eye

surveillance of the home; and the heat information obtained by the police concerned

matters about the inside of the home even though the imaging did not actually penetrate

the home. (Id. at pp. 33-40.) The court concluded that "obtaining by sense-enhancing

technology any information regarding the interior of the home that could not otherwise

have been obtained without physical 'intrusion into a constitutionally protected area'

[citation] constitutes a search . . . ." (Id. at p. 34.) The Kyllo court distinguished its

holding in Dow Chem. Co. v. United States (1986) 476 U.S. 227 (Dow Chemical), which

found the use of advanced aerial photography to obtain images of the open areas of a

commercial property did not constitute a search. (Id. at p. 239.) Kyllo explained, "Dow

Chemical . . . involved enhanced aerial photography of an industrial complex, which does

not share the Fourth Amendment sanctity of the home." (Kyllo, supra, at p. 37.)

       Although the home is entitled to a heightened level of privacy protection, "a

business establishment or an industrial or commercial facility [also] enjoys certain

protections under the Fourth Amendment." (Dow Chemical, supra, 476 U.S. at p. 235.)

In Dow Chemical, the court stated there was a reasonable expectation of privacy within

the interior of the business's covered buildings, even though it found the outdoor areas of

the business were not shielded from advanced aerial surveillance. (Id. at p. 236; People

                                               6
v. Lee (1986) 186 Cal.App.3d 743, 746 [interior office not open to general public

afforded privacy protection from warrantless intrusion].)

              B. Warrantless Seizures Permitted Under Plain View Doctrine

        Notwithstanding the general constitutional prohibition against warrantless

searches of constitutionally protected areas, the courts have recognized "a wide range of

diverse situations" that provide for "flexible, common-sense exceptions" to the warrant

requirement, including the " 'plain view' doctrine." (Brown, supra, 460 U.S. at p. 735.)

The plain view doctrine can apply in two situations, (1) when an officer observes an

object in a public place, or (2) when an officer observes an object that is " ' "situated on

private premises to which access is not otherwise available for the seizing officer." ' "

(Id. at p. 738.) When the object is in a public place, the " 'seizure of property in plain

view involves no invasion of privacy and is presumptively reasonable, assuming that

there is probable cause to associate the property with criminal activity.' " (Ibid.) When

the object is in a private place, the officer may seize the property in open view if the

officer has lawfully made the initial intrusion into the private place or is otherwise

properly in a position from which he or she can view the particular area. (Id. at pp. 737-

738.)

        The application of the plain view doctrine to private places "provides grounds for

seizure of an item when an officer's access to an object has some prior justification under

the Fourth Amendment. 'Plain view' is . . . simply . . . an extension of whatever the prior

justification for an officer's 'access to an object' may be." (Brown, supra, 460 U.S. at pp.

738-739, italics added, fn. omitted.) The rule "reflects an application of the Fourth

                                              7
Amendment's central requirement of reasonableness to the law governing seizures of

property." (Id. at p. 739.) The courts reason that "once police are lawfully in a position

to observe an item first-hand, its owner's privacy interest in that item is lost; the owner

may retain the incidents of title and possession but not privacy." (Illinois v. Andreas

(1983) 463 U.S. 765, 771.) Considering the nature of the owner's interests and the

legitimacy of the police activity during plain view observations, the courts have

concluded there is no reason to impose a warrant requirement upon the police. (Brown,

supra, 460 U.S. at p. 739.)

       As explained in Arizona v. Hicks (1987) 480 U.S. 321, "the practical justification

of [the] extension [of the plain view doctrine to private places] is the desirability of

sparing police, whose viewing of the object in the course of a lawful search is as

legitimate as it would have been in a public place, the inconvenience and the risk—to

themselves or to preservation of the evidence—of going to obtain a warrant." (Id. at p.

327; Minnesota v. Dickerson (1993) 508 U.S. 366, 375 [plain view doctrine "justified by

the realization that resort to a neutral magistrate under such circumstances would often be

impracticable and would do little to promote the objectives of the Fourth Amendment"];

Washington v. Chrisman (1982) 455 U.S. 1, 9 ["when a police officer, for unrelated but

entirely legitimate reasons, obtains lawful access to an individual's area of privacy[,] [t]he

Fourth Amendment does not prohibit seizure of evidence of criminal conduct found in

these circumstances"].)

       Thus, "if, while lawfully engaged in an activity in a particular place, police

officers perceive a suspicious object, they may seize it immediately." (Brown, supra, 460

                                              8
U.S. at p. 739, italics added.) The seizure of the item in plain view does not require the

existence of exigent circumstances because it is the prior justification for the police

presence in the private area that permits the seizure. (See Commonwealth v. Person

(Super. Ct. Pa. 1989) 560 A.2d 761, 767-768 [plain view permitted seizure even though

"there was plenty of time to obtain a search warrant"]; State v. Lair (Wash. 1981) 630

P.2d 427, 432-433; Brown, supra, 460 U.S. at pp. 738-739.) Further, the rule applies

even when the discovery of the incriminating evidence occurs while the police are

lawfully engaging in activities unrelated to the accused. (Horton v. California (1990)

496 U.S. 128, 135-136 (Horton).) " 'The doctrine serves to supplement the prior

justification—whether it be a warrant for another object, hot pursuit, search incident to

lawful arrest, or some other legitimate reason for being present unconnected with a

search directed against the accused—and permits the warrantless seizure.' " (Ibid.,

italics added.)

       In addition to the requirement of a lawful initial intrusion, the plain view doctrine

requires that it "be 'immediately apparent' to the police that the items they observe may

be evidence of a crime . . . ." (Brown, supra, 460 U.S. at p. 737.) The "immediately

apparent" requirement equates with probable cause; i.e., the officer may seize the items if

"the facts available to the officer would 'warrant a man of reasonable caution in the belief

[citation] that certain items may be . . . useful as evidence of a crime; it does not demand

any showing that such a belief be correct or more likely true than false. A 'practical,

nontechnical' probability that incriminating evidence is involved is all that is required."

(Id. at p. 742.)

                                              9
       However, under the plain view doctrine the police may not conduct a further

search to determine if probable cause exists; rather, to justify the seizure, the probable

cause must exist at the time of the observation of the item. (Minnesota v. Dickerson,

supra, 508 U.S. at p. 375 [if "the police lack probable cause to believe that an object in

plain view is [incriminatory] without conducting some further search of the object . . . the

plain-view doctrine cannot justify its seizure"]; Arizona v. Hicks, supra, 480 U.S. at p.

328 [plain view doctrine may not be used " 'to extend a general exploratory search from

one object to another until something incriminating at last emerges' "].) Also, the police

may not seize the item even if it is in plain view unless they have "a lawful right of access

to the object itself"; i.e., they must be able to seize the property from the position where

they are legitimately located, and absent exigent circumstances they may not enter

premises where they are not authorized to be to accomplish a warrantless seizure.

(Horton, supra, 496 U.S. at p. 137 & fn. 7; State v. Betts (Tex.Crim.App. 2013) 397

S.W.3d 198, 206-207 [absent exigent circumstances, police could not enter backyard

even though they saw evidence of crime in plain view from street]; United States v. Davis

(4th Cir. 2012) 690 F.3d 226, 233-234.) On the other hand, assuming the police have

probable cause to believe the item is associated with criminal activity, the authority to

seize the item includes the authority to further inspect the item at the time of seizure.

(Arizona v. Hicks, supra, 480 U.S. at p. 326 [if probable cause exists for seizure, object

may be moved for closer examination].)




                                             10
                                  C. Standard on Appeal

       When reviewing the denial of a suppression motion on appeal, we defer to the trial

court's express and implied findings if they are supported by substantial evidence, and, on

the facts so found, exercise our independent judgment in determining the constitutionality

of the search or seizure. (People v. Tully (2012) 54 Cal.4th 952, 979.)

                                          II. Analysis

       Applying these general principles here, defendant had a reasonable expectation of

privacy in the interior of his business premises that were not open to the public. (Dow

Chemical, supra, 476 U.S. at p. 235; People v. Lee, supra, 186 Cal.App.3d at p. 746.)

Further, we will assume for purposes of our analysis that, under the reasoning of Kyllo,

supra, 533 U.S. 27, the thermal imaging scan constituted a search within the meaning of

the Fourth Amendment even though the building was commercial rather than residential.

       However, unlike the circumstances in Kyllo, at the time of the thermal imaging

scan the police here were not conducting a warrantless search of defendant's building

based on their suspicion that he had a marijuana grow operation inside the building.

Rather, at the time of the thermal imaging scan of defendant's building, the police were

looking for an unrelated armed robbery suspect. These circumstances triggered

application of the plain view doctrine.

       The record shows the police were legitimately engaged in a search for the armed

robbery perpetrator, and it was reasonable for them to use the thermal imaging device to

search for the perpetrator in the outdoor areas of the neighborhood where the robbery

occurred. The closeness of the location of the robbery (30th and Imperial Avenue) and

                                              11
defendant's building (2900 block of Imperial Avenue) reflects that the thermal imaging

scan was confined to an area where the robbery suspect could have fled. During the

course of this legitimate search—which occurred in the early morning hours after the

1:55 a.m. robbery report—the officer was using the thermal imaging device when he

noticed a large amount of heat emanating from the rooftop vent and electrical wires of

defendant's building and from the attached electrical transformer located on the power

pole in the alley. Based on his training and experience, the officer knew these

observations were consistent with an indoor marijuana growing operation because such

operations typically use high intensity lights, generate a lot of heat, use vents to discharge

the heat, and consume large amounts of electricity, and this usage would occur even in

the early morning hours when the commercial building was likely unoccupied. The

officer's observations and specialized knowledge provided him probable cause to believe

the heat images were evidence of criminal activity.

       Based on this probable cause, the officer was entitled to "seize" the heat images

and use them in support of the application for a warrant to search defendant's building.

The officer was engaging in a lawful search for a suspect using a lawful means; during

this search he observed the suspicious item (the distinctive heat differentials associated

with the vent, electrical wires, and transformer) from a place that he was entitled to be; it

was immediately apparent to the officer that the heat might be useful evidence of a crime;

the probable cause existed without the need to conduct any further search beyond the

already-justified thermal imaging scan; and the officer was lawfully in a position to seize

the information without the need to enter onto the building's premises. These

                                             12
circumstances satisfied the requirements of the plain view doctrine and authorized the

officer to immediately seize the evidence without obtaining a warrant and returning to the

building to again conduct a thermal imaging scan.

       To support his challenge to the court's denial of the suppression motion, defendant

contends there was nothing to indicate the suspect would be inside his building and the

police used the robbery suspect search as a pretext to conduct a warrantless search of his

building. The trial court was not required to find that the facts showed a pretextual

search. To the contrary, the trial court could reasonably conclude the police were

generally searching the outdoor areas near the robbery scene for the suspect, and during

this legitimate search they happened to obtain images from a building in close proximity

to the robbery location.

       Defendant posits the officer "positioned the FLIR scanner on [his] property and

continued to observe the property in order to discover heat sources within the

premises. . . . The use of FLIR was not a mistaken view of [his] property, but rather an

intrusive invasion of the contents of the property." Contrary to defendant's claim, there is

nothing in the record to suggest the officer aimed the thermal imaging device at

defendant's building during a search that was divorced from the proper search for the

robbery suspect. The robbery scene was within one block of defendant's building, and it

was clearly reasonable for the thermal imaging scan to encompass this one block area

while searching for the robbery suspect. Also, to the extent the officer may have




                                            13
continued recording the thermal images at defendant's building once he observed the

significant heat differentials, this was a reasonable means to accomplish the "seizure" of

the evidence already supported by probable cause.

       Exercising our independent judgment on the legality of the search and seizure,

there was no Fourth Amendment violation given the applicability of the plain view

doctrine. Accordingly, the trial court properly denied the suppression motion.

                                      DISPOSITION

       The judgment is affirmed.




                                                                              HALLER, J.

WE CONCUR:



MCCONNELL, P. J.



NARES, J.




                                            14
