from the Marion Superior Court. The Honorable Jose D.
Salinas, Judge. Trial Court Cause No. 49G14-1404-FD-21182
ATTORNEY FOR APPELLANT Brian J. Johnson Danville, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Indiana Attorney
General Jodi Kathryn Stein Laura R. Anderson Deputy Attorneys
General Indianapolis, Indiana
of the Case
After law enforcement officers followed up on a tip from
CrimeStoppers, they requested a warrant to use thermal
imaging technology to gain additional evidence to confirm
whether an active indoor marijuana grow operation existed at
the location designated in the tip. The warrant was granted
and the results of the imaging showed higher than normal heat
signatures emanating from an upstairs area of the house at
that address. Officers requested a search warrant for the
premises based on evidence presented in both search warrant
The dispositive question here is whether the evidence
presented with respect to the first search warrant
application sufficiently established probable cause to
support further investigation. We reverse and remand.
and Procedural History
At McGrath's bench trial, the parties stipulated that in
April 2014, an anonymous call to CrimeStoppers alerted IMPD
of a possible active marijuana grow operation located at 5926
North Crittenden Avenue in Indianapolis. The tipster
identified the house by the street address, its color, and
the first names of the occupants, Brandon and Kelsey. The
tipster added that an odor of marijuana often emanated from
the house and a bright light was visible from a window
Detective Sergeant Kerry Buckner of IMPD, following up on the
tip, conducted surveillance on the house during daylight
hours, verifying the address and color of the house provided
by the tipster. The physical marking of the address was only
observable near the house, not from the street. He also noted
that though the home had a central air conditioning system,
there were individual air conditioning units in both upstairs
windows and several of the windows had a dark
covering-consistent with an indoor marijuana grow operation,
a conclusion reached based on Detective Buckner's
training and experience.
Later that evening, Detective Buckner continued his
surveillance and observed a light of an "apparent
difference" emanating from an upstairs window. Ex. Vol.
p. 8. Based on the officer's training and experience, he
concluded that the high intensity glow of the light was
consistent with the type of lights used for indoor grow
operations. The officer had also confirmed through police
databases, which were not accessible by the public, that the
occupants of the house were a male named Brandon McGrath and
a female named Kelsey Bigelow. Bigelow was listed as the
owner of the house. BMV records, which were also restricted
from public access, indicated that 5926 North Crittenden
Avenue was the listed address on both McGrath's and
Bigelow's driver's licenses. Detective Buckner did
not detect the odor of marijuana upon his evening inspection
of the residence.
Next, Detective Buckner applied for a search warrant to use a
forward looking infrared, or FLIR, which is a thermal imaging
detection system mounted to an aircraft to detect the
presence of a heat signature consistent with an active indoor
marijuana grow operation. His application read as follows:
I am a police officer with the Indianapolis Metropolitan
Police Department (IMPD). I have been a police officer in
Indianapolis/Marion County since 1991. I am a "law
enforcement officer" as that term is defined in I.C.
I am currently the supervisor of the Violent Crimes Unit of
the Indianapolis Metropolitan Police Department and have been
so assigned since 2007. In connection with my official
duties, I am involved in investigations relating to
violations of the Indiana controlled substances laws.
I have received training relating to enforcement of the
Indiana controlled substances laws, including the following:
1. My initial training at the Indiana Law Enforcement Academy
in 1991. I have satisfied the minimum basic training
requirements established by rules adopted by the law
enforcement training board under I.C. 5-2-1-9 and described
in I.C. 35-37-4-5.
2. Basic Detective School, through the Marion County
Sheriffs[sic] Department in 1997;
3. Hotel/Motel Interdiction/Hidden compartment training in
March of 2002;
4. Highway Interdiction training through the U.S. Department
of Justice Drug Enforcement Administration July 1998;
5. Drug Enforcement Administration basic cannabis
Investigations course June 1997;
6. Undercover Narcotics Schools and Narcotics Detection
Schools hosted by Indiana State Police, IDEA, FBI, and DEA
7. Monthly operational and legal update training by the
Marion County Prosecutor's Office.
8. Yearly in-service training.
Based upon my training and experience, I am familiar with the
methods employed by individuals engaged in the trafficking of
controlled substances including the following:
1. Detective Sergeant Kerry Buckner, swears or
affirms that he believes and has good cause to believe that a
controlled substance, to wit: Marijuana, Cannabis, the
possession of which is unlawful, is being unlawfully
manufactured and cultivated at an indoor grow operation,
located at 5926 Crittenden Ave, Indianapolis, Marion County,
Your affiant is seeing a search warrant to use a thermal
imaging device on and at the residence located at 5926
Crittenden Ave, Indianapolis, Marion County, Indiana.
The use of a thermal imaging device will assist your Affiant
in developing more facts in this investigation of the offense
under the Uniform Controlled Substances Act, in violation of
Indiana Code 35-48-4-10 manufacturing or cultivation of
marijuana, and to indicate the presence of artificial
lighting for the cultivations[sic] of marijuana. Based on my
training, experience and participation in numerous indoor
grow investigations, and based on my experience from other
experienced narcotics officers, including those officers that
trained in the use of thermal image technology, with whom
I'm associated, your Affiant knows that:
A) With respect to indoor marijuana cultivation and
propagation operations, suspects routinely utilize the
following items and methods, among others, in their attempts
to avoid detection from the law enforcement authorities:
1.) Blackened out or covered windows, doors and other visibly
detectable areas to avoid outsiders from identifying any
portion of the grow operation.
2.) Guard dogs are used to protect their growing operations
from theft and to alert them to subjects, including law
enforcement, who are on or are approaching their property.
3.) Fixed, movable, or other type of venting systems, usually
located upon high areas of buildings to vent heat, fumes and
odors escaping the cultivation structure.
4.) Fictitious names and/or social security numbers on
5.) Theft of electrical power by alteration of electrical
systems on the property by bypassing the utility meter so
that excess usage caused by indoor grow lighting equipment
does not register with the utility company.
6.) Use of portable top large scale combustible fuel
generators to develop power for indoor lighting equipment to
avoid registering high bills with the local utility company.
7.) The use of deodorizers and masking agent systems to mask
the odor of growing marijuana that is emitted from the
8.) Remote locations and outbuildings which are detached from
the main residence to prevent discovery and aid in
concealment. This can also include room built underground to
house the growing operation.
9.) The use of high intensity grow lights that produce large
amounts of heat in enclosed areas and use large amounts of
B.) That marijuana Cultivation is a complex enterprise that:
1.) Takes at least 7-10 days to plant from clone to
vegetative stage, can take 3-8 weeks to take plant from
vegetative to Flowering stage, and takes at least 3-6 weeks
to take the plant from flowering stage to harvest.
2.) Takes approximately 3 gallons of potting soil per plant
and that the soil is used only ...