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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

v.

HOWARD MAURICE GREENSPAN,

Defendant and Appellant.

 D065585

 (Super. Ct. No. SCD239375)

 ORDER DENYING PETITION 

 FOR REHEARING, GRANTING 

 AUGMENTATION OF THE 

 RECORD, AND MODIFYING 

 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: 
2

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: 
3

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.
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,

Plaintiff and Respondent,

v.

HOWARD MAURICE GREENSPAN,

Defendant and Appellant.

 D065585

 (Super. Ct. No. SCD239375)

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. 
2

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 
3

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 
4

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. 
5

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), 
6

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 
7

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 
8

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
9

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.) 
10

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].)
11

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 
12

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 
13

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 
14

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.