95-419

No. 95-419

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA,

Plaintiff and Respondent,

v.

JAMES ROBERT SIEGAL, DOYLE

WAYNE JONES and JAMES JEREMIAH

MCINTYRE,

Defendants and Appellants.

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Madison,

The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William A. Hritsco, Davis, Warren & Hritsco, Dillon,

Montana (Jones); Vincent J. Kozakiewicz, Dillon,

Montana (McIntyre); Andrew P. Suenram, Hoffman

& Suenram, Dillon, Montana (Siegal)

For Respondent:

Joseph P. Mazurek, Attorney General, Chris D.

Tweeten, Assistant Attorney General, Helena,

Montana; Loren Tucker, Madison County Attorney,

Robert Zenker, Deputy Madison County Attorney,Joseph

E. Thaggard, Special Deputy Madison County Attorney,

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Virginia City, Montana

Heard: October 24, 1996

Submitted: November 7, 1996

Decided: March 6, 1997

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

 Defendants James Robert Siegal (Siegal), Doyle Wayne Jones

(Jones) and James Jeremiah McIntyre (McIntyre) moved to suppress

the fruits of a search on the ground that the warrantless use of a

thermal imager violated their constitutional rights. In addition,

Jones moved to dismiss the charges against him on the ground that

his Fifth Amendment protection against double jeopardy had been

violated. The District Court for the Fifth Judicial District,

Madison County, denied the motions and Defendants appeal. We

reverse.

 Defendants raise the following issues on appeal:

 1. Was the warrantless use of a thermal imager an

unconstitutional search?

 2. Did the election by the State not to make a videotape of

the results obtained by the thermal imager constitute destruction

of exculpatory evidence?

 3. Did sufficient probable cause exist to support the

issuance of a search warrant for Defendants' premises?

 4. Did the District Court err in denying Jones' Motion to

Dismiss the criminal proceedings against him on double jeopardy

grounds after the State obtained a judgment against him in a civil

forfeiture action?

 Factual and Procedural Background

 In October 1993, McIntyre purchased a ten-acre parcel of

property with a ranch house and outbuildings near Waterloo,

Montana. The property is heavily wooded and completely fenced. 

McIntyre and Jones occupied the ranch house. They took numerous

steps to insure their privacy including posting the property with

"No Trespassing" signs, painting the fence posts orange,

maintaining perimeter and interior fences and locking the gates.

 Shortly after purchasing the property, McIntyre and Jones

constructed a 30-by-70-foot building approximately 126 feet from

the ranch house. On August 25, 1994, members of the Southwest

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Montana Drug Task Force searched the buildings on the property

pursuant to a search warrant issued by the Fifth Judicial District

Court. The search disclosed that the newly constructed building

was being used to grow marijuana.

 The Application for Search Warrant states that in the early

morning hours of June 2, 1994, Stanton Hayes, an agent with the

Narcotics Investigation Bureau of the Montana Department of Justice

(NIB), used a thermal imager to measure heat emissions from the

buildings on the property. Hayes had been certified in the use of

the device by the Drug Enforcement Administration (DEA) in October

1993. He conducted the scan from the property of a neighbor, who

had given permission for Hayes to be there, at a vantage point of

about 25 to 30 feet from the grow shed.

 The thermal imager showed that the grow shed was discharging

a considerable amount of heat. Hayes determined that the

distribution of heat energy was consistent with the presence of

grow lamps hanging from the ceiling. In contrast, a scan of the

other buildings on the property showed them to be normal in their

heat emissions.

 Hayes admitted at the suppression hearing, that he had not

obtained a search warrant to use the thermal imager and that there

were no exigent circumstances at the time which would lead him to

believe that any evidence would dissipate prior to obtaining a

search warrant. Although the thermal imager is capable of making

a videotape, Hayes elected not to do so on this occasion. Hayes

was required to walk a substantial distance in the dark over uneven

terrain, crossing fences and irrigation ditches in order to reach

the vantage point from which he conducted the scan. He stated that

carrying the extra equipment, which weighed almost 20 pounds, would

have created a substantial risk of injury to himself or damage to

the equipment, and he doubted the practicality of wiring up the

videotape in the dark. 

 On the basis of information obtained from citizen informants,

a sheriff's investigation, and the thermal imaging scan, a search

warrant was issued. The search of the grow shed revealed that it

was divided into three rooms. One room contained a diesel

generator that provided electricity to the building and 23 pounds

of drying marijuana. A second room contained 167 marijuana plants

growing under artificial light. The third room contained 72

mature, budding marijuana plants, also growing under artificial

light. Based on the evidence obtained in the search, warrants

were issued for the arrest of Jones, McIntyre and Siegal. 

 On August 30, 1994, Jones, McIntyre and Siegal were charged by 

information with Criminal Possession with Intent to Sell, a felony,

in violation of 45-9-103, MCA, and Criminal Production or

Manufacture of Dangerous Drugs, a felony, in violation of 45-9-

110, MCA. All three Defendants appeared for an initial appearance,

received court-appointed counsel, and subsequently pleaded not

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guilty. In November and December 1994, all three Defendants filed

motions to suppress the fruits of the search on the ground that the

warrantless use of the thermal imager violated their rights under

the Fourth Amendment to the United States Constitution and Article

II, Sections 10 and 11 of the Montana Constitution. 

 A hearing on Defendants' motions to suppress was held on

January 10, 1995, wherein the District Court heard testimony from

expert witnesses regarding the use of the thermal imager. On March

23, 1995, the court issued its Findings of Fact, Conclusions of Law

and Order denying Defendants' motions. 

 In addition to the criminal charges filed against Defendants,

on September 1, 1994, the State filed a civil forfeiture action

against real and personal property seized from Defendants. The

State contended that every item seized pursuant to the search

warrant issued in the criminal proceeding was used, or intended for

use, in the commission of, or to facilitate the commission of, a

violation of Title 45, Chapter 9, Montana Code Annotated. In its

prayer for relief, the State requested that the District Court

enter a judgment forfeiting the property to the Madison County

Sheriff's Department and the NIB in the event Defendants failed to

respond to the petition and a default might be entered.

 On September 30, 1994, the State filed a Motion for Partial

Forfeiture of Respondent Properties and a supporting brief stating

that neither Jones nor Siegal had responded within the allotted

time. Thus the State requested that the court enter an order of

forfeiture against Jones and Siegal granting all of their right,

title and interest in the properties to the State. The District

Court signed an order to that effect on October 7, 1994. On

October 18, 1994, the State filed an Amended Petition to Institute

Forfeiture Proceedings, in an effort to include additional

property.

 On April 18, 1995, the State filed a Motion to Dismiss the

civil forfeiture action. The State gave no reason for its Motion

to Dismiss before obtaining an ex parte Order granting the

dismissal. In a subsequent telephone conversation with defense

counsel, a Deputy County Attorney for Madison County acknowledged

that the State had concluded that to pursue both the civil

forfeiture action and the criminal action would constitute double

jeopardy. 

 Jones filed a Motion to Dismiss the criminal charges against

him on April 25, 1995, based upon the theory that the State had

already punished him in the civil forfeiture action and that

further proceedings in the criminal action were barred by the

double jeopardy clause's prohibition of multiple punishments for a

single offense. The District Court summarily denied Jones'

motion. 

 On June 20, 1995, both Jones and McIntyre withdrew their not

guilty pleas and pleaded guilty to the charges against them. They

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each signed an Acknowledgment of Waiver of Rights wherein they

reserved the right to appeal the denial of their Motions to

Suppress and, in Jones' case, his Motion to Dismiss as well. Both

Jones and McIntyre were sentenced to 10 years at Montana State

Prison and ordered to pay restitution in the amount of $10,000,

however, the District Court stayed execution of their sentences

pending appeal. 

 On July 25, 1995, Siegal withdrew his not guilty plea and,

pursuant to an agreement with the State, entered a plea of guilty

to the charge of Criminal Production or Manufacture of Dangerous

Drugs. The State dismissed the other charge against him and he was

given 6 years deferred imposition of sentence. In his

Acknowledgment of Waiver of Rights, Siegal also reserved the right

to appeal the denial of his Motion to Suppress. 

 Standard of Review

 The standard of review of a district court's denial of a

motion to suppress is whether the court's findings of fact are

clearly erroneous and whether those findings were correctly applied

as a matter of law. State v. Williams (1995), 273 Mont. 459, 462,

904 P.2d 1019, 1021 (citing State v. Flack (1993), 260 Mont. 181,

188, 860 P.2d 89, 94).

 Issue 1.

 Was the warrantless use of a thermal imager an

 unconstitutional search?

 The legal question which we address in this case is whether

law enforcement authorities may utilize thermal imaging technology

to observe a structure suspected of concealing an indoor marijuana

growing operation without first obtaining a search warrant. In

other words, may law enforcement utilize warrantless thermal

imaging of a structure to gather information and probable cause for

the later issuance of a search warrant, or does the use of thermal

imaging technology to gather information about the activities

inside a structure itself constitute a search which can be

accomplished only with judicial oversight and following the

issuance of a search warrant? 

 We conclude that the use of thermal imaging in the context of

a criminal investigation constitutes a search under Article II,

Section 11 of the Montana Constitution. Moreover, we conclude that

the privacy interests uniquely protected by Article II, Section 10

of the Montana Constitution are also implicated by the use of

thermal imaging in the context of a criminal investigation and that

the use of this technology by the government, in the absence of a

search warrant, requires the demonstration of a compelling state

interest other than enforcement of the criminal laws.

 Thermal Imaging Technology

 Indoor marijuana growing operations utilize incandescent heat

lamps to mimic the sunþs radiation. While structures concealing

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this sort of activity may appear no different to the naked eye than

other structures, indoor marijuana growing operations typically

generate substantial amounts of heat and, hence, infrared

radiation, which, with the proper technology, can be detected from

outside the structure. It is the warrantless use of this

technology in the investigation of one such operation that concerns

us here.

 A discussion of the basic physical properties of infrared

radiation and of the present capabilities of infrared imaging

devices is necessary to understanding our decision in this case. 

Infrared radiation is a form of electromagnetic radiation and is

subject to the same physical laws as visible light, radio waves and

x-rays. Infrared radiation is produced by any object which emits

heat. Any object with a temperature above absolute zero (0øK or -

273øC) will emit heat, and, thus, infrared radiation. An object

does not have to be "hot" to emit infrared radiation; even cold

objects, such as ice cubes, or heavily insulated objects emit heat. 

However, the hotter the object, the more heat it produces and,

hence, the more infrared radiation the object emits. 

 While visible light is perceived by the human eye, usually

unaided, infrared radiation, because of its longer wavelength, is

invisible and cannot be "seen" without the aid of a device,

commonly known as a thermal imager, an infrared imager or Forward

Looking Infra-Red Radar (F.L.I.R.). This device is not unlike an

ordinary home video camera. Once directed toward the object to be

scanned, the thermal imager collects infrared radiation emitted by

the object, translates the radiant signal first into an electrical

signal and then into a visual image and, finally, displays the

image in the imager itself or on a commercial TV monitor. The

displayed image can also be recorded on a standard VCR. Warmer

images appear lighter on the display and typically the imager is

capable of electronically enhancing or reducing features and

assigning colors to different temperature levels. Some imagers are

capable of registering temperature differences as little as 0.1øC. 

The thermal imager does not itself, emit beams or rays, but only

passively collects infrared radiation emitted by the object being

observed.

 When used in the investigation of a suspected marijuana

growing operation, thermal imaging of a structure is usually done

at night to avoid the interference of the sun. Typically, before

scanning the suspected structure, the operator will image

neighboring structures to determine how much radiation is being

emitted from those under the climatic conditions present. A

structure concealing an active marijuana growing operation will

generally exhibit a heat profile or signature substantially

different than nearby structures which do not house this sort of

activity. Thermal imaging of suspected and non-suspected structures

alike, can be accomplished unobtrusively either from the ground or

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from the air at some distance from the structure being observed.

 At present, thermal imagers do not "see through walls" or

produce a distinct image of a person, object or activity within a

structure, unless, for example, a person has his body pressed

against a window. Rather, thermal imaging will reveal that an

enclosed structure contains a source of heat and the relative

quantity of heat being produced. Thermal imaging does not

differentiate between a heat source produced by a legal activity--a

green house for African Violets, or an indoor hot tub, for

example,--or one produced by an illegal activity such as growing

marijuana. While choice of building materials and insulation will

slow infrared emissions from the inside of a structure, as long as

the atmosphere surrounding a structure is cooler than its interior,

the laws of thermodynamics dictate that heat will inevitably be

transferred to the atmosphere and that this energy cannot be

contained indefinitely.

 Thus, law enforcement authorities use thermal imaging

inferentially to provide information as to the activity on-going in

a particular structure. A structure concealing a marijuana growing

operation may have an unusual heat profile compared to neighboring

structures. While such a profile may be consistent with an indoor

marijuana growing operation, it is not necessarily proof of one.

 Legal Analysis

 As the State correctly points out, most of the courts that

have addressed the use of thermal imaging in the investigation of

marijuana growing operations have held that the warrantless use of

such technology does not violate the Fourth Amendment. These

courts have uniformly relied on the two-tiered analysis proposed by

Justice Harlan in his concurrence to the majority opinion in Katz

v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d

576, to determine the constitutionality of warrantless thermal

imaging. 

 The defendant in Katz was convicted of a violation of a

federal statute prohibiting the interstate transmission of wagering

information by telephone. To obtain evidence against the

defendant, FBI agents attached an electronic listening and

recording device to the outside of the public telephone booth from

which the defendant placed his calls. The defendant objected to

the use of this evidence at his trial contending that it had been

obtained in violation of the Fourth Amendment.

 In declaring the Government's warrantless use of the

electronic listening and recording device unconstitutional, the

United States Supreme Court stated: 

 What a person knowingly exposes to the public, even in

 his own home or office, is not a subject of Fourth

 Amendment protection. [Citations omitted.] But what he

 seeks to preserve as private, even in an area accessible

 to the public, may be constitutionally protected.

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 [Citations omitted.]

Katz, 389 U.S. at 351, 88 S.Ct. at 511, 19 L.Ed.2d at 582. 

 The Court was unpersuaded by the Government's contention that

the Fourth Amendment was not implicated in this case since the

surveillance technique it employed did not involve a physical

penetration of the telephone booth. The Court concluded that the

Government's activities "violated the privacy upon which [the

defendant] justifiably relied while using the telephone booth and

thus constituted a 'search and seizure' within the meaning of the

Fourth Amendment." Katz, 389 U.S. at 353, 88 S.Ct. at 512, 19

L.Ed.2d at 583. 

 In concurring with the majority opinion, Justice Harlan

summarized the rule that has emerged from Katz and from prior

decisions as requiring, "first that a person have exhibited an

actual (subjective) expectation of privacy and, second, that the

expectation be one that society is prepared to recognize as

'reasonable.'" Katz, 389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed.2d

at 588.

 The Court adopted this two-prong test from Justice Harlan's

concurrence in Katz in its decision in Smith v. Maryland (1979),

442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220. In Smith, a woman

began receiving threatening and obscene telephone calls from a man

who identified himself as the person who had recently robbed her. 

After tracing the license plate number of a car matching the

description of the robber's vehicle to Smith, the police requested

that the telephone company install a pen register to record the

numbers dialed from Smith's home telephone. The police did not

obtain a warrant or a court order before making the request. 

 When the pen register revealed that Smith was placing calls to

the woman, the police used this and other information to obtain a

warrant to search Smith's residence. The search revealed that a

page in Smith's phone book was turned to the woman's name and

number. 

 Smith sought to suppress all evidence derived from the use of

the pen register on the ground that the police had failed to secure

a warrant before using the device. The trial court denied the

suppression motion and Smith was convicted. The Maryland Court of

Appeals affirmed Smith's conviction.

 The United States Supreme Court affirmed the decisions of the

lower courts and stated that 

 the application of the Fourth Amendment depends on

 whether the person invoking its protection can claim a

 "justifiable," a "reasonable," or a "legitimate

 expectation of privacy" that has been invaded by

 government action. 

Smith, 442 U.S. at 740, 99 S.Ct. at 2580, 61 L.Ed.2d at 226

(citations omitted). 

 The Court concluded that Smith did not entertain an actual

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expectation of privacy in the phone numbers he dialed, and that,

even if he did, his expectation was not "legitimate." Thus, the

Court held that the installation and use of a pen register is not

a search as contemplated by the Fourth Amendment and no warrant was

required. Smith, 442 U.S. at 745-46, 99 S.Ct. at 2583, 61 L.Ed.2d

at 230.

 Seventeen years after its decision in Katz, the United States

Supreme Court clarified the second prong of Justice Harlan's test 

when the Court issued its opinion in Oliver v. United States

(1984), 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214. Oliver

involved two cases consolidated for review. In the first case,

Kentucky State Police narcotics agents ignored a locked gate and

"No Trespassing" signs and entered Oliver's property where they

discovered a field of marijuana about a mile from Oliver's house. 

The trial court suppressed evidence of the discovery of the

marijuana field finding that Oliver had a reasonable expectation

that the field would remain private because Oliver had done all

that could be expected of him to assert his privacy in the area of

the farm that was searched. The trial court noted that the field

was highly secluded as it is bounded on all sides by woods, fences

and embankments and could not be seen from any point of public

access. The Sixth Circuit Court of Appeals reversed, reasoning

that activities that create the need for privacy do not ordinarily

take place in open fields. Oliver, 466 U.S. at 174, 104 S.Ct. at

1739, 80 L.Ed.2d at 221. 

 In the second case, pursuant to an anonymous tip, two police

officers entered the woods by a path between the defendant's

residence and a neighboring house. They followed a footpath

through the woods until they reached two marijuana patches fenced

with chicken wire. The officers determined that the marijuana was

on the defendant's property and they obtained a warrant to search

the property and seize the marijuana. The trial court granted the

defendant's motion to suppress the fruits of the second search

because the warrant for that search was premised on information

obtained during the prior warrantless search. The Maine Supreme

Judicial Court affirmed reasoning that the open-fields doctrine did

not justify the search as that doctrine applies only when officers

are lawfully present on property and observe "open and patent"

activity. Oliver, 466 U.S. at 175, 104 S.Ct. at 1739, 80 L.Ed.2d

at 222. 

 The United States Supreme Court determined that in both cases, 

the government's intrusion upon the open fields was not an

unreasonable search as proscribed by the Fourth Amendment because

"open fields do not provide the setting for those intimate

activities that the Amendment is intended to shelter from

government interference or surveillance." Oliver, 466 U.S. at 179,

104 S.Ct. at 1741, 80 L.Ed.2d at 224. The Court concluded that

"an individual has no legitimate expectation that open fields will

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remain free from warrantless intrusion by government officers." 

Oliver, 466 U.S. at 181, 104 S.Ct. at 1742, 80 L.Ed.2d at 225-26. 

 In determining whether the expectation of privacy was

legitimate in the sense required by the Fourth Amendment, the Court

stated: 

 The test of legitimacy is not whether the individual

 chooses to conceal assertedly "private" activity. 

 Rather, the correct inquiry is whether the government's

 intrusion infringes upon the personal and societal values

 protected by the Fourth Amendment.

Oliver, 466 U.S. at 182-83, 104 S.Ct. at 1743, 80 L.Ed.2d at 227.

 The Montana Supreme Court has on numerous occasions relied on

Katz and Smith and the two-pronged test delineated in those cases

to determine whether a warrantless search was reasonable. However,

in addition to the holdings in those cases, this Court has relied

in some circumstances on the unique privacy provisions of Montana's

Constitution.

 Montana's constitutional provision regarding searches and

seizures mirrors the Fourth Amendment to the United States

Constitution: 

 Searches and seizures. The people shall be secure

 in their persons, papers, homes and effects from

 unreasonable searches and seizures. No warrant to search

 any place, or seize any person or thing shall issue

 without describing the place to be searched or the person

 or thing to be seized, or without probable cause,

 supported by oath or affirmation reduced to writing. 

Art. II, Sec. 11, Mont.Const. Additionally, when the people of

Montana ratified a new State Constitution in 1972, they explicitly

granted Montana citizens the right to privacy:

 Right of privacy. The right of individual privacy

 is essential to the well-being of a free society and

 shall not be infringed without the showing of a

 compelling state interest.

Art. II, Sec. 10, Mont.Const. Thus, Montana's Constitution affords

citizens broader protection at the hands of the government in

search and seizure cases than does the Federal Constitution. 

 We applied this "broader protection" in our decision in State

v. Solis (1984), 214 Mont. 310, 693 P.2d 518, among others. In

Solis, defendant was videotaped in the act of selling stolen

tractor tires to an undercover officer. Prior to making the

videotapes, law enforcement officers had neither sought nor

obtained a search warrant. When the undercover officer was

unavailable to testify against defendant at his trial, the State

attempted to introduce the videotapes. However, the trial judge

granted defendant's motion to suppress and the State appealed. 

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 Citing the two-pronged test from Katz as applied by this Court

in Missoulian v. Board of Regents of Higher Educ. (1984), 207 Mont.

513, 675 P.2d 962, we held that defendant did exhibit an actual

expectation of privacy in his conversations with the undercover

officer and that defendant's expectation of privacy was reasonable. 

In making this determination, we rejected the holdings of prior

federal cases that stated that government agents do not need

official approval before recording conversations with the consent

of one of the conversants. Basing our decision on Montana's

privacy provision, we stated in Solis that we would not be bound by

decisions of the United States Supreme Court where independent

grounds exist for reaching a contrary result. Solis, 693 P.2d at

521. 

 We also said in Solis that if a defendant's privacy

expectation was reasonable, it could not be invaded absent a

compelling state interest and a compelling state interest exists

"where the state enforces its criminal laws for the benefit and

protection of other fundamental rights of its citizens." Solis,

693 P.2d at 522 (quoting State ex rel. Zander v. District Court

(1979), 180 Mont. 548, 556, 591 P.2d 656, 660). However, we

subsequently recognized that when the government intrudes upon a

fundamental right, any compelling state interest for doing so must

be closely tailored to effectuate only that compelling interest. 

State v. Pastos (1994), 269 Mont. 43, 47, 887 P.2d 199, 202.

 Prior to 1995, this Court adhered to the doctrine that an

individual does not have a legitimate expectation of privacy in an

open field; the same doctrine that the United States Supreme Court

upheld in Oliver. See State v. Charvat (1978), 175 Mont. 267, 573

P.2d 660; State v. Bennett (1983), 205 Mont. 117, 666 P.2d 747. 

However, in State v. Bullock (1995), 272 Mont. 361, 384, 901 P.2d

61, 76, this Court overruled Charvat, Bennett and several other

cases with similar holdings. Once again we based our decision on

the unique privacy provisions in Montana's Constitution. 

 In Bullock, law enforcement officers, who had earlier been

alerted that defendants had illegally killed an elk, entered the

property of one of the defendants without a warrant and observed

the carcass of a large bull elk hanging from a tree near the cabin.

Access to defendant's property was by a forest service road and the

property was separated from that road by a fence. "No Trespassing"

signs were posted on trees on each side of the gate at the entrance

to defendant's property. Defendant's cabin was located more than

300 feet from the forest service road at the end of a private road. 

The cabin and other structures on the property were concealed from

the forest service road because the terrain in between was slightly

elevated. Neither the cabin nor the elk could be seen from the

forest service road. 

 The parties in Bullock stipulated that anyone who wished to

enter the property in the past had called defendant beforehand to

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ask permission. In fact, the Jefferson County Sheriff's Office had

done just that a few days earlier prior to conducting a search for

lost hunters. On the date in question, the officers neither asked

nor received permission to be on defendant's property.

 In reversing the district court's denial of defendant's motion

to suppress, this Court concluded that

 

 in Montana a person may have an expectation of privacy in 

 an area of land that is beyond the curtilage which the

 society of this State is willing to recognize as

 reasonable, and that where that expectation is evidenced

 by fencing, "No Trespassing," or similar signs . . .

 entry by law enforcement officers requires permission or

 a warrant. 

Bullock, 901 P.2d at 75-76.

 Thus, while we analyze most search and seizure questions

implicating Article II, Section 11 of Montana's Constitution under

traditional Fourth Amendment principles enunciated by the federal

courts and adopted in our own case law, in certain instances where

Montana's constitutional right of privacy, Article II, Section 10,

is also specially implicated, we must, of necessity, consider and

address the effect of that unique constitutional mandate on the

question before us. 

 As we will point out in greater detail later in this opinion,

the proceedings of the 1972 Montana Constitutional Convention

disclose on the part of the delegates a particular concern over the

intrusion of the government into the privacy of Montanans through

the use of various types of electronic monitoring and surveillance. 

That concern was the focus of Article II, Section 10, and,

significantly, led to a specific right of privacy being included in

the 1972 Montana Constitution.

 Accordingly, given the nature of the search and seizure

question at issue here, it is appropriate and necessary that we

address the warrantless use of thermal imaging in the context of 

not only traditional Fourth Amendment principles under Article II,

Section 11 of the Montana Constitution, but under the broader

protections afforded by Article II, Section 10, as well. We begin

our analysis with a review of the case law.

 Search and Seizure Analysis

 The warrantless use of thermal imaging in criminal cases is an

issue of first impression in Montana. However, the cases from

other jurisdictions that have discussed this issue have generally

used at least one of the following three approaches: the waste-heat

approach, the canine-sniff approach, or the technological approach. 

We will examine each of these approaches in turn along with some of

the relevant cases.

The Waste-Heat Approach 

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 Using this approach, some courts have analogized heat to

garbage left outside one's home. Since a warrant is not required

to examine curbside garbage, these courts reason that, in the same

way, no warrant is required to examine heat discarded from one's

home. This approach finds its genesis in the case of California v.

Greenwood (1988), 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30,

wherein law enforcement officers, lacking a warrant, searched the

garbage left for collection outside the curtilage of a home. 

 In Greenwood, the Laguna Beach Police Department received

information that Greenwood might be engaged in narcotics

trafficking. In conducting a surveillance of Greenwood's home, an

officer asked the neighborhood trash collector to pick up the

garbage bags that Greenwood left on the curb in front of his house

and to deliver them to the officer without mixing their contents

with garbage from other houses. The officer then searched through

Greenwood's garbage and found items "indicative of narcotics use." 

The officer used this information to obtain a warrant to search

Greenwood's home where quantities of cocaine and hashish were

found. Greenwood was arrested and subsequently posted bail. 

 A few weeks later, another officer again searched Greenwood's

garbage and found evidence of narcotics use. A search warrant was

issued based on the information from the second garbage search. 

The police found more narcotics and evidence of narcotics

trafficking in their search of Greenwood's home and Greenwood was

again arrested. The Superior Court dismissed the charges against

Greenwood based on prior case law holding that warrantless trash

searches violated the Fourth Amendment and the California

Constitution.

 The United States Supreme Court determined that the

warrantless search of the garbage left outside Greenwood's home

would violate the Fourth Amendment only if Greenwood manifested a

subjective expectation of privacy in his garbage that society would

accept as objectively reasonable. Greenwood, 486 U.S. at 39, 108

S.Ct. at 1628, 100 L.Ed.2d at 36 (citations omitted). The Court

concluded that by leaving his garbage on a public street, "readily

accessible to animals, children, scavengers, snoops, and other

members of the public," Greenwood defeated any claim he may have

had to Fourth Amendment protection. Greenwood, 486 U.S. at 40-41,

108 S.Ct. at 1628-29, 100 L.Ed.2d at 36-37. Furthermore, because

Greenwood deliberately placed his garbage at the curb for the

express purpose of having a third party, the trash collector, take

it, Greenwood could have no reasonable expectation of privacy in

the inculpatory items that he discarded. Greenwood, 486 U.S. at

41, 108 S.Ct. at 1629, 100 L.Ed.2d at 37.

 Along these same lines, the United States District Court for

the District of Hawaii concluded that the nonintrusive use of a

thermal imaging device for the purpose of detecting waste heat did

not amount to a search within the meaning of the Fourth Amendment. 

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U.S. v. Penny-Feeney (D.Hawaii 1991), 773 F.Supp. 220, 228, aff'd

on other grounds sub nom. U.S. v. Feeney (9th Cir. 1993), 984 F.2d

1053. 

 In this case, the Kona Police Department received several tips

from known and anonymous informants that Penny-Feeney had been

growing marijuana at her residence for several years. To

corroborate this information, officers flew over the residence in

a helicopter equipped with a thermal imager. The thermal imaging

scan revealed a significant amount of heat emanating from the

garage on the property. Based on the information obtained from the

informants and the thermal imager, a warrant was issued to search

the residence. In the search, officers found marijuana plants,

grow lights, an electric meter that had been altered to show a

lower amount of electric usage, and books and papers showing drug

transactions. 

 The United States District Court determined that Penny-Feeney

did not have a legitimate expectation of privacy in the waste heat

since she voluntarily vented it outside the garage where it was

exposed to the public and she in no way attempted to impede its

escape or exercise dominion over it. Moreover, analogizing it to

the garbage in Greenwood, the court determined that even if PennyFeeney could demonstrate a subjective expectation of privacy in the

waste heat, such an expectation would not be one that society would

accept as objectively reasonable. Penny-Feeney, 773 F.Supp. at

226. 

 In a similar fashion, the Seventh, Eighth and Eleventh

Circuits all relied, at least in part, on Greenwood and compared

the excess heat detected by thermal imaging scans to garbage. From

this they concluded that the use of a thermal imager is not a

search as contemplated by the Fourth Amendment. U.S. v. Meyers

(7th Cir. 1995), 46 F.3d 668, cert denied, 116 S.Ct. 213; U.S. v.

Pinson (8th Cir. 1994), 24 F.3d 1056, cert denied, 115 S.Ct. 664;

U.S. v. Ford (11th Cir. 1994), 34 F.3d 992.

 In one such case, Ford, agents of the Florida Department of

Law Enforcement, acting upon information that Ford was growing

marijuana inside his mobile home, entered the property leased by

Ford over a locked gate and traveled a quarter of a mile onto the

property. They viewed the mobile home through a thermal imager and

determined that it was emitting an inordinate amount of heat

through its floor and walls. Based upon this information, the

agents obtained a warrant to search the mobile home where they

discovered a sophisticated hydroponic laboratory and over 400

marijuana plants. They also discovered that Ford had punched holes

in the floor of the mobile home and installed a blower to vent the

excess heat generated by grow lamps. Ford, 34 F.3d at 993. 

 The court in Ford concluded that given Ford's affirmative

conduct to expel excess heat from his mobile home, Ford did not

seek to preserve the fact of that heat as private, thus he did not

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exhibit a subjective expectation of privacy in the heat emitted

from his mobile home. Ford, 34 F.3d at 995. The court also stated

that even if Ford had a subjective expectation of privacy in the

heat escaping from his mobile home, it was not one that society

would accept as objectively reasonable. Ford, 34 F.3d at 997.

Citing Greenwood, the court in Ford stated that the heat that Ford

intentionally vented from his mobile home was a waste byproduct of

his marijuana cultivation and is analogous to the inculpatory items

Greenwood discarded in his trash. Ford, 34 F.3d at 997. 

 The problem with this approach is that it does not address the

fact that waste heat, unlike garbage, can only be detected by means

of a technologically advanced device. It is not readily accessible

to "animals, children, scavengers, snoops, and other members of the

public," as was the garbage in Greenwood. Furthermore, since

dissipation is an inevitable result of heat production, it does not

require a deliberate act nor is it preventable in the same way that

one can conceal incriminating garbage. The laws of thermodynamics

dictate that no matter how much one insulates, heat will still

escape. Moreover, the fact that one insulates to keep heat in

indicates a subjective expectation of privacy. 

The Canine-Sniff Approach 

 Many courts have analogized the use of thermal imagers to the

use of trained drug-detecting dogs. See Pinson, 24 F.3d at 1058;

Ford, 34 F.3d at 997; Meyers, 46 F.3d at 670. Relying on the

United States Supreme Court's decision in U.S. v. Place (1983), 462

U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110, the courts in Pinson,

Ford and Meyers all concluded that use of a thermal imager does not

constitute a search within the meaning of the Fourth Amendment. 

 In Place, the defendant was waiting in line at the Miami

International Airport to purchase a ticket to New York when his

behavior aroused the suspicions of law enforcement officers. The

officers approached Place and requested his ticket and his

identification. Place complied with their requests and consented

to a search of his checked luggage, but, because his flight was

about to depart, the officers decided to forego a search. They

noted, however, some discrepancies in the street addresses on the 

tags for Place's two suitcases. Upon further investigation, the

officers discovered that neither address existed. They then

contacted DEA authorities in New York.

 Two DEA agents were waiting for Place when he arrived in New

York. After observing more suspicious behavior by Place, they

approached him and requested his identification. When Place

refused to consent to a search of his luggage, the agents seized

his suitcases and subjected them to a "sniff test" by a trained

drug-detecting dog. The dog reacted positively to one of the

suitcases. The agents subsequently obtained a search warrant and

discovered 1125 grams of cocaine. 

 Place moved to suppress the contents of the luggage seized

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from him claiming that the warrantless seizure of the luggage

violated his Fourth Amendment rights. In attempting to determine

that issue, the United States Supreme Court concluded that exposing

luggage to the olfactory senses of a trained drug-detecting dog is

not a search because it does not require opening the luggage. 

Place, 462 U.S. at 707, 103 S.Ct. at 2644-45, 77 L.Ed.2d at 121. 

The Court stated:

 [A canine sniff] does not expose noncontraband items

 that otherwise would remain hidden from public view, as

 does, for example, an officer's rummaging through the

 contents of the luggage. Thus, the manner in which

 information is obtained through this investigative

 technique is much less intrusive than a typical search. 

 Moreover, the sniff discloses only the presence or

 absence of narcotics, a contraband item. Thus, despite

 the fact that the sniff tells the authorities something

 about the contents of the luggage, the information

 obtained is limited. This limited disclosure also

 ensures that the owner of the property is not subjected

 to the embarrassment and inconvenience entailed in less

 discriminate and more intrusive investigative methods.

Place, 462 U.S. at 707, 103 S.Ct. at 2644, 77 L.Ed.2d at 121.

However, in U.S. v. Thomas (2nd Cir. 1985), 757 F.2d 1359, cert

denied, 474 U.S. 819, the use of a trained dog to sniff for

narcotics outside defendant's apartment was held to constitute a

search that, in the absence of a warrant, violated the Fourth

Amendment.

 In Penny-Feeney, along with analogizing the waste heat to

garbage, the court in that case also likened the use of thermal

imagers to the use of police dogs trained to sniff and identify the

presence of drugs. Relying on U.S. v. Solis (9th Cir. 1976), 536

F.2d 880, wherein the Ninth Circuit Court of Appeals held that use

of the dogs was not unreasonable under the circumstances and was

not a prohibited search under the Fourth Amendment, the PennyFeeney court stated:

 Use of the [thermal imager], like use of the dog sniff,

 entailed no embarrassment to or search of the person. 

 Heat emanations, the target here, are comparable to the

 odor emanations in Solis since they constitute a physical 

 fact indicative of possible crime, not protected

 communications.

Penny-Feeney, 773 F.Supp. at 227.

 The flaw in the canine-sniff approach is that thermal imagers

provide information about heat emissions both legal and illegal

while canine sniffs only provide information about the presence of

illicit substances. A thermal imager cannot limit its detection to

information regarding illegal activities. Moreover, the radiation

of inordinate amounts of heat does not necessarily imply that

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illegal activity is taking place in the same manner that the smell

of illicit drugs implies their presence.

The Technological Approach

 Some courts have looked at the underlying technological and

scientific principles involved in thermal imaging and have

determined that the use of a thermal imager is not a search because

this technology cannot reveal any "intimate details" about the

activities occurring inside the home. The United States Supreme

Court considered the warrantless use of other high-technology

devices in its decision in Dow Chemical Co. v. United States

(1986), 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226. 

 In Dow, the Environmental Protection Agency (EPA) employed a

commercial aerial photographer, using a precision aerial mapping

camera, to take photographs of the Dow Chemical Company's facility

in Midland, Michigan. Dow had maintained elaborate security around

the perimeter of the complex to prevent the exposure of any trade

secrets to its competitors. Dow consented to an on-site inspection

by the EPA of two powerplants in its 2000-acre complex. However,

when the EPA requested consent for a second inspection, Dow

refused. The EPA did not seek an administrative search warrant and

instead resorted to flying over the facility at altitudes between

1200 and 12,000 feet to obtain photographs.

 Dow brought suit against the EPA contending that the taking of

aerial photographs constituted a search without a warrant, thereby

violating Dow's rights under the Fourth Amendment. The United

States Supreme Court disagreed, holding that the taking of aerial

photographs of an industrial complex from navigable airspace is not

a search as contemplated by the Fourth Amendment. Dow, 476 U.S. at

239, 106 S.Ct. at 1827, 90 L.Ed.2d at 238. In arriving at this

conclusion, the Court stated:

 Here, EPA was not employing some unique sensory device

 that, for example, could penetrate the walls of buildings

 and record conversations in Dow's plants, offices, or

 laboratories, but rather a conventional, albeit precise,

 commercial camera commonly used in mapmaking.

Dow, 476 U.S. at 238, 106 S.Ct. at 1826-27, 90 L.Ed.2d at 237. The

Court further stated that "the photographs here are not so

revealing of intimate details as to raise constitutional concerns."

Dow, 476 U.S. at 238, 106 S.Ct. at 1827, 90 L.Ed.2d at 237-38. 

 The Fifth Circuit Court of Appeals followed the technological

approach utilized in Dow in upholding the constitutionality of

warrantless thermal imaging in its decision in U.S. v. Ishmael (5th

Cir. 1995), 48 F.3d 850, cert denied, 116 S.Ct. 74. In this case,

the DEA, using a helicopter equipped with a thermal imager, flew

over the Ishmaels' property at altitudes between 500 and 1000 feet

to investigate a cement substructure underneath a steel building on

the property. A few weeks later, several officers entered the

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Ishmaels' property on foot and used a hand-held thermal imager to

scan the building. They discovered that an unusual amount of heat

was emanating from the substructure and the ground adjacent to it. 

Using the information from the thermal imaging scans and other

information, the DEA obtained a warrant to search the substructure

where they discovered more than 700 marijuana plants and several

firearms. 

 The Ishmaels moved to suppress the evidence obtained in the

search on the basis that the readings from the thermal imaging scan 

constituted an unconstitutional search and that, without those

readings, the DEA did not have probable cause to obtain a warrant. 

The District Court granted the motion to suppress and the

government appealed. 

 The Fifth Circuit Court of Appeals held that, because the

Ishmaels constructed the laboratory in great secrecy in a basement

to a steel building that was not visible from a public road, they

exhibited a subjective expectation that their hydroponic laboratory

would remain private, thereby meeting the first prong of Katz. 

Ishmael, 48 F.3d at 854-55. In analyzing whether the Ishmaels'

expectation was reasonable, the second prong of the Katz test, the

court focused on the technology involved, and its degree of

sophistication. The court noted that more sophisticated forms of

technology increase the likelihood that their warrantless use will

constitute an unreasonable intrusion, but the mere fact that the

police employ relatively sophisticated forms of technological

surveillance does not render the surveillance unconstitutional. 

Ishmael, 48 F.3d at 855. According to the Ishmael court, the

crucial inquiry is whether the technology revealed any "intimate

details." Ishmael, 48 F.3d at 855. Thermal imaging "is a passive,

nonintrusive instrument" in that it does not send any beams or rays

into the area on which it is fixed or in any way penetrate

structures within that area; no intimate details of the home are

observed. Ishmael, 48 F.3d at 856. 

 The court in Ishmael, also examined the manner in which the

thermal imager was used. Relying on prior cases from that

jurisdiction holding that "there is no business curtilage

surrounding a barn lying within an open field," the court stated

that the officers were entitled to observe the steel building

either by air or on foot because the building stood in an open

field. Ishmael, 48 F.3d at 856-57. Thus, the court concluded that

a thermal imager, when used in an "open field" does not offend the

Fourth Amendment because it is passive and nonintrusive; the

sanctity of one's home or business is not disturbed. Ishmael, 48

F.3d at 857.

 The Tenth Circuit Court of Appeals had another view of this

issue. In U.S. v. Cusumano (10th Cir. 1995), 67 F.3d 1497, the

court held that the warrantless use of a thermal imager upon

defendants' home violated the Fourth Amendment. Cusumano, 67 F.3d

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at 1510. The defendants in Cusumano did not deny that a search of

their home by the police revealed a sophisticated indoor marijuana

grow operation in their basement. They contended, however, that

the search warrant was supported by information obtained from a

warrantless thermal imaging scan of the home, that the scan

violated their Fourth Amendment rights, and that absent the data

from the thermal imaging scan, the search warrant lacked probable

cause. While agreeing with defendants' contention that the use of

the thermal imager required a search warrant, the Court of Appeals

determined that, absent the information from the thermal imaging

scan, the search warrant was supported by probable cause.

 The court in Cusumano recognized that a thermal imager

measures heat gradients across the exterior surface of a building,

thus activities that generate a significant amount of heat produce

a heat "signature" that the imager can detect. Cusumano, 67 F.3d

at 1501. Based on this, the court maintained that the pertinent

inquiry is not "whether the Defendants retain an expectation of

privacy in the 'waste heat' radiated from their home," but rather

"whether they possess an expectation of privacy in the heat

signatures of the activities, intimate or otherwise, that they

pursue within their home." Cusumano, 67 F.3d at 1502. Moreover,

the court stated that

 [t]he machine intrudes upon the privacy of the home not

 because it records white spots on a dark background but

 rather because the interpretation of that data allows the

 government to monitor those domestic activities that

 generate a significant amount of heat. 

Cusumano, 67 F.3d at 1504. 

 In analyzing the second prong of the Katz test, the court,

acknowledging that there is no explicit societal expectation of

privacy in the heat signatures of activity within the home, stated:

 We rather doubt that society is aware that heat

 signatures can be read with any greater accuracy than tea

 leaves. The contours of the privacy expressly guaranteed

 the home by the Fourth Amendment are not, however,

 determined by the outcome of a game of hide-and-seek

 played by the government and the people. It is

 abundantly clear that the people retain a "reasonable

 expectation of privacy" in the undetected, unmonitored

 performance of those domestic activities that are not

 knowingly exposed to the public. 

Cusumano, 67 F.3d at 1505-06. Therefore, the court held that the

use of a thermal imager upon the home intruded upon an expectation

of privacy that society would deem reasonable. Cusumano, 67 F.3d

at 1506.

 We agree with the Tenth Circuit's determination in Cusumano

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that the pertinent inquiry is whether defendants possess "an

expectation of privacy in the heat signatures of the activities,

intimate or otherwise, that they pursue within their home" and

which they do not knowingly expose to the public. Cusumano, 67

F.3d at 1502-03. We also agree with the Fifth Circuit's decision

in Ishmael that because the grow operation in that case was

constructed in great secrecy in a building that was not visible

from a public road, defendants exhibited a subjective expectation

that the operation would remain private, thereby meeting the first

prong of Katz. Ishmael, 48 F.3d at 854-55.

 In the case before us on appeal, Defendants' property was

heavily wooded and completely fenced. Defendants took several

steps to insure their privacy including posting the property with

"No Trespassing" signs, painting the fence posts orange,

maintaining perimeter and interior fences and locking the gates. 

Defendants' marijuana grow operation was housed out of view in a

building on the property. Thus we conclude, as did the court in

Ishmael, that Defendants in the present case met the first prong of

Katz because they exhibited a subjective expectation that their

grow operation would remain private.

 The court in Ishmael determined, however, that defendants in

that case did not meet the second prong of Katz because, relying on

prior cases from the Fifth Circuit, law enforcement officers were

entitled to observe the building either by air or on foot since the

building stood in an open field and when a thermal imager is used

on a structure in an open field the sanctity of one's home or

business is not disturbed. Ishmael, 48 F.3d at 857. Unlike the

Fifth Circuit, Montana's prior cases have held that "in Montana a

person may have an expectation of privacy in an area of land that

is beyond the curtilage which the society of this State is willing

to recognize as reasonable. . . ." State v. Bullock (1995), 272

Mont. 361, 384, 901 P.2d 61, 75-76.

 In the present case, Defendants' fenced their property and

posted it with "No Trespassing" signs, just as did the defendants

in Bullock. However, the Defendants in the present case went even

further than did the defendants in Bullock by housing the

activities that they wished to keep private in an enclosed

structure rather than merely in "an area of land." Furthermore,

the law enforcement officers in the case before us admitted that

they also used the thermal imager to scan Defendants' residence, 

a place where an individual has the greatest expectation of

privacy.

 Finally, we believe that Montanan's would be shocked and 

consider it a gross invasion of their privacy to learn that the

government could, without their consent and in the absence of a

search warrant issued by a neutral and detached magistrate,

surreptitiously monitor the heat signatures generated by activities

conducted within the confines of their private homes and enclosed

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structures for the purpose of drawing inferences about the legality

of such activities. It was pointed out in oral argument that with

knowledge of the sort of heat profile generated by an indoor

marijuana growing operation, there is presently nothing to stop law

enforcement from simply selecting structures or a neighborhood at

random and then scanning every home (or building) to determine

whether any of the structures are generating a suspicious heat

signature. We recognize that thermal imaging was not used in that

fashion in this case and that the present state of the technology

may not be such as to positively identify illegal from legal

activity. Notwithstanding, we are also mindful that we live in

times during which the sophistication of a given technology

typically increases exponentially over a relatively short time,

along with the potential for its abuse. While our decision here is

not grounded in those presumptions, to completely ignore such

factors in our decision-making process, as the State suggests,

would be unreasonably myopic, indeed.

 Accordingly, applying traditional principles of search and

seizure law as adopted in our prior cases to the issue before us,

we hold that the use of thermal imaging to obtain evidence of

criminal activity is a search subject to the warrant requirement of

Article II, Section 11, of Montana's Constitution. Specifically, 

we conclude that persons have an actual (subjective) expectation of

privacy in the heat signatures of activities, intimate or

otherwise, which they pursue within the confines of their private

homes and enclosed structures and which they do not knowingly

expose to the public. Moreover, we conclude that, given Montana's

heightened expectations of privacy, best evidenced by the specific

protection given that right under Article II, Section 10 of

Montana's Constitution (discussed at length in the next section of

this opinion), this expectation is one which society in this State

is willing to recognize as objectively reasonable.

 Right of Privacy Analysis

 As mentioned above, our consideration of this issue does not

stop with traditional Fourth Amendment analysis, however. 

Montanans are afforded broader protections to their right of

privacy under Article II, Section 10 of Montana's Constitution. 

On the facts of this case, Article II, Section 10, is implicated

along with Article II, Section 11.

 In State v. Young (Wash. 1994), 867 P.2d 593, the Supreme

Court of Washington held that the use of a thermal imager to

perform a warrantless surveillance of defendant's home violated the

State of Washington's constitutional protection of defendant's

private affairs as well as the Fourth Amendment to the United

States Constitution. Washington's constitution provides: "No

person shall be disturbed in his private affairs, or his home

invaded, without authority of law." Young, 867 P.2d at 597 (citing

Art. I, Sec. 7, Wash.Const.). The court in Young determined that

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the United States Constitution provides "the minimum protection

afforded citizens against unreasonable searches by the government." 

Young, 867 P.2d at 596. Thus the court found that the "private

affairs inquiry" under its constitution is broader than the Fourth

Amendment's reasonable expectation of privacy inquiry. Young, 867

P.2d at 597.

 So too, on the particular search and seizure question at issue

here, we find that the inquiry under Montana's right of privacy

provision is broader than the usual Fourth Amendment reasonable

expectation of privacy inquiry. As we stated earlier in this

opinion, Montana's Constitution affords citizens broader protection

from warrantless governmental intrusion in search and seizure cases

than does the United States Constitution. State v. Solis (1984),

214 Mont. 310, 316, 693 P.2d 518, 521.

 There has been unnecessary emphasis placed on

 distinguishing right to privacy cases from search and

 seizure cases. The right to privacy is the cornerstone

 of protections against unreasonable searches and

 seizures. Thus, a warrantless search can violate a

 person's right of privacy and thereby violate the right

 to be free from unreasonable searches and seizures.

Solis, 693 P.2d at 522-23. 

 In 1972, the delegates to Montana's Constitutional Convention

voiced clear opposition to any form of electronic surveillance of

Montana citizens. As Delegate Campbell stated:

 Today, with wiretaps, electronic and bugging devices,

 photo surveillance equipment and computerized data banks,

 a person's privacy can be invaded without his knowledge

 and the information so gained can be misused in the most

 insidious ways. It isn't only a careless government that

 has this power to pry; political organizations, private

 information gathering firms, and even an individual can

 now snoop more easily and more effectively than ever

 before. We certainly hope that such snooping is not as

 widespread as some persons would have us believe, but

 with technology easily available and becoming more

 refined all the time, prudent safeguards against the

 misuse of such technology are needed. Some may urge and

 argue that this is a legislative, not a constitutional

 issue. We think the right of privacy is like a number of

 other inalienable rights; a carefully worded

 constitutional article reaffirming this right is

 desirable.

 . . .

 We at the committee felt very strongly that the people of

 Montana should be protected as much as possible against

 eavesdropping, electronic surveillance, and such type of

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 activities. . . . [W]e found that the citizens of Montana

 were very suspicious of such type of activity.

Montana Constitutional Convention, Verbatim Transcript, March 7,

1972, pages 1681-82. Delegate Dahood also expressed the concerns

of the committee:

 First of all, we agreed that we would go along with an

 amendment that would prohibit electronic surveillance in

 the State of Montana. . . . After listening to

 testimony, after examining briefs that were submitted to

 us, after analyzing the situation, it is inconceivable to

 any of us that there would ever exist a situation in the

 State of Montana where electronic surveillance could be

 justified. And the thinking throughout the United States

 is, electronic surveillance shall be justified only in

 matters involving national security, perhaps in matters

 involving certain heinous federal crimes where the

 situation is such that in those instances we must risk

 the right of individual privacy because there is a

 greater purpose to be served. But within the area of the

 State of Montana, we cannot conceive of a situation where

 we could ever permit electronic surveillance. And our

 intention was--in responding to the proposed amendment;

 that we would not object to it--was to allow an amendment

 that would prohibit electronic surveillance in the State

 of Montana.

Transcript, page 1687.

 While thermal imaging is not mentioned, per se, in their

comments, it is clear that the delegates' concerns encompassed the

invasion of citizens' privacy without their knowledge by means of

various sorts of electronic audio and visual monitoring and

surveillance equipment. Not only were the delegates wary of

existing technology of this type, but they recognized that this

sort of technology would continue to be refined and would become

more widespread and easily available. In this regard their

concerns have been well-founded. Moreover, it is also clear that,

in the delegates' view, the use of this sort of technology should

be justified only in the most serious of situations, involving

heinous crimes where it is necessary to "risk the right of

individual privacy because there is a greater purpose to be

served." Transcript, page 1687. In the face of this history of

Article II, Section 10, we are compelled to conclude that the use

of thermal imaging as a criminal investigative tool is the very

sort of technology against which Article II, Section 10 of

Montana's Constitution was enacted to guard.

 Accordingly, we conclude that, in the absence of a search

warrant, the use of thermal imaging as a criminal investigative

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tool implicates Article II, Section 10 of Montana's Constitution

and requires the demonstration of a compelling state interest,

other than enforcement of the criminal law. Finding no such

demonstration of a compelling state interest in this case, we hold 

that the use of thermal imaging at issue here, since no authorizing

warrant was issued, violated the Defendants' right to privacy

guaranteed under Article II, Section 10 of Montana's Constitution.

 Issue 2.

 Did the election by the State not to make a

 videotape of the results obtained by the thermal imager

 constitute destruction of exculpatory evidence?

 In light of our decision to reverse the District Court on the

motion to suppress, we need not decide this issue. However, since

this is a case of first impression in Montana, we offer the

following for future guidance to the courts. As with our decision

in State v. Grey (1995), 274 Mont. 206, 907 P.2d 951, regarding

audio and/or video recordings of Miranda warnings and a detainee's

waiver of the same, we do not require that law enforcement officers

must, as a matter of law, create a video recording of the results

of a thermal imaging scan. We do, however, note that, absent the

demonstration of a legitimate and compelling reason to the

contrary, the failure of law enforcement officers to preserve some

tangible record of the results of a thermal imaging scan should be

viewed with distrust in the judicial assessment of the

interpretation of those results. See Grey, 907 P.2d at 956.

 Issue 3.

 Did sufficient probable cause exist to support the

 issuance of a search warrant for Defendants' premises?

 In its Findings of Fact, Conclusions of Law and Order denying 

Defendants' motion to suppress, the District Court determined that,

even without the results of the thermal imaging scan, probable

cause existed to issue a warrant to search Defendants' premises.

Defendants argue to the contrary contending that, with or without

the results of the thermal imaging scan, the State's Application

for Search Warrant failed to set forth sufficient probable cause to

support issuing a warrant. Since we have already determined that

the use of a thermal imager constitutes a search for Fourth

Amendment purposes and since no warrant was obtained in this case

prior to using the thermal imager, we will excise the results of

the thermal imaging scan from the search warrant application and

review the remaining information to determine if sufficient

probable cause existed for the issuance of the warrant.

 An application for a search warrant must state facts

sufficient to show probable cause for issuance of the warrant.

Section 46-5-221, MCA; State v. Rinehart (1993), 262 Mont. 204,

209, 864 P.2d 1219, 1222. Probable cause exists when the facts and

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circumstances presented to the magistrate would warrant an honest

belief in the mind of a reasonable and prudent man that the offense

has been, or is being, committed and that the property sought

exists at the place designated. State v. Isom (1982), 196 Mont.

330, 343, 641 P.2d 417, 424. However, a determination of probable

cause does not require facts sufficient to make a prima facie

showing of criminal activity; the issuing magistrate need only

determine that there is a probability of such activity. Rinehart,

864 P.2d at 1222. 

 This Court has adopted the "totality of the circumstances"

test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct.

2317, 76 L.Ed.2d 527, to address the issue of probable cause for

issuance of a warrant. State v. Crowder (1991), 248 Mont. 169,

173, 810 P.2d 299, 302. "The totality of the circumstances test is

fact specific." State v. Holstine (1993), 260 Mont. 310, 314, 860

P.2d 110, 113 (citing State v. Valley (1992), 252 Mont. 489, 492,

830 P.2d 1255, 1257). We said in Rinehart that if a magistrate

issues a search warrant after subjecting the application to this

test, a reviewing court must presume that the magistrate's decision

is correct. Rinehart, 864 P.2d at 1223 (citing State v. Baldwin

(1990), 242 Mont. 176, 183, 789 P.2d 1215, 1220). 

 "When a magistrate determines that probable cause exists to

warrant the issuance of a search warrant, this Court should not

only give great deference to that decision but we should also draw

every reasonable inference possible to support the decision." 

State v. Rydberg (1989), 239 Mont. 70, 73, 778 P.2d 902, 904. 

Thus, the duty of a reviewing court is not to conduct a de novo

review of the magistrate's determination, but to simply ensure that

the magistrate or lower court had a substantial basis for

concluding that probable cause to issue the search warrant existed. 

Rinehart, 864 P.2d at 1223.

 When a search warrant has been issued, a determination of

probable cause must be made solely from the information given to

the impartial magistrate and from the four corners of the search

warrant application. Isom, 641 P.2d at 423. The following is a

summary of the facts set forth in the Application for Search

Warrant in this case (absent the information from the thermal

imaging scan): 

 1. An informant, who wished to remain anonymous,

 contacted the NIB and reported that a suspicious

 structure had been erected on a neighboring property. 

 The informant stated that the structure is approximately

 30 feet by 70 feet with a cement floor. It has one

 blocked window and two doors that are too small for

 vehicles or large animals to enter. In addition, there

 are four water drains located in the floor.

 2. The informant observed electric power lines

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 running to the structure, yet he can hear the sound of a

 generator constantly operating inside it.

 3. The informant declared that he has seen several

 vehicles frequenting the area of the structure and that

 the occupants of the nearby house are secretive about

 what is transpiring inside the structure. He said that

 the structure is always under observation by one of the

 occupants.

 4. NIB agents Hayes and Skuletich observed the

 structure from a neighboring property and corroborated 

 the existence of the structure, that electrical power

 lines run to the structure and that the sound of a

 generator can be heard emanating from within the

 structure. 

 5. Another informant, who also wished to remain

 anonymous, reported that he had observed fuel oil being

 delivered to the structure. This informant also advised

 the officers that Jones and McIntyre occupied the

 residence.

 6. Agent Hayes initiated an inquiry and discovered

 that neither Jones nor McIntyre are covered through

 Worker's Compensation. Hayes was unable to confirm that

 the suspects had any gainful employment.

 7. The Madison County Sheriff verified that no

 building permit had been issued for the structure. He

 also discovered that a recently-drilled well near the

 structure is only surface water and is not safe for human

 consumption.

 8. A review of phone records for the residence

 showed that from November through January, the suspects

 had contacted five different nurseries and/or fertilizer

 dealers from the area, yet there was no evidence of any

 gardening. The phone records also revealed that five

 different electrical supply dealers had been contacted

 during the same time frame.

 Defendants point to several problems with this application

leading them to suggest that it does not contain sufficient

probable cause to issue a search warrant. First, Defendants

contend that the State failed to show the reliability or veracity

of the informants. The veracity, reliability and basis of

knowledge of informants remain highly relevant factors in

determining probable cause under the totality of the circumstances

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test. Rinehart, 864 P.2d at 1222. This Court has upheld search

warrants where the only information in the application relating to

the reliability of the informant was a statement by an officer that

the informant had been reliable in the past. Rinehart, 864 P.2d at

1223-24. However, the application in this case does not state

whether the informants were known to law enforcement officers or

whether information obtained from these informants may have proved

reliable previously. 

 Corroboration of information through other sources is

necessary when the information is hearsay or the informant is

anonymous. Rinehart, 864 P.2d at 1224 (citing Crowder, 810 P.2d at

302). Here, law enforcement officers observed the structure

firsthand and confirmed that it existed, that a generator could be

heard operating within the structure and that there were electrical

power lines running to the structure. However, the officers could

not corroborate the frequency of visits by certain vehicles, or the

delivery of diesel fuel to the structure. 

 The search warrant application characterized the informants in

this case as "concerned citizens."

 [A] citizen informant is presumed reliable. However,

 this is not a per se rule. The reliability of a citizen

 informant is generally shown by the very nature of the

 circumstances under which the incriminating information

 became known. 

Valley, 830 P.2d at 1258 (citing State v. Niehaus (Iowa 1990), 452

N.W.2d 184, 189). In the case before us, the only information we

have regarding the "nature of the circumstances" by which the

information became known are statements in the search warrant

application that the informants contacted the NIB and the sheriff's

department to report "suspicious" activity. Even accepting the

information from the informants as true, that information does not

in and of itself establish probable cause.

 Second, Defendants claim that because the telephone calls to

the nurseries and electrical supply dealers were made between

November 1993 and January 1994 and the search warrant was not

applied for until August 1994, this information is stale and should

not have been relied on in issuing the search warrant. A

determination of staleness depends largely on the nature of the

property and activity in issue. State v. Walston (1989), 236 Mont.

218, 223, 768 P.2d 1387, 1390. 

 The observation of a half-smoked marijuana cigarette in

 an ashtray at a cocktail party may well be stale the day

 after the cleaning lady has been in; the observation of

 the burial of a corpse in a cellar may well not be stale

 three decades later. The hare and the tortoise do not

 disappear at the same rate of speed.

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Walston, 768 P.2d 1387, 1390 (citing State v. Pease (1986), 222

Mont. 455, 466, 724 P.2d 153, 160). When a criminal activity is

continuing in nature, more time may elapse between the observation

of the activity and the application for the search warrant without

negating probable cause. Walston, 768 P.2d at 1390. Here, because

of the continuing nature of the criminal activity, we do not find

that the information from the phone calls was stale. 

 Third, Defendants contend that the assertion in the

application that the building has only one window and only two

doors which are too small to allow large animals or vehicles to

enter is erroneous and thus should be excised from the application. 

While we do not condone the presence of inaccuracies in search

warrant applications, this Court has previously stated that the

information contained in an application for a search warrant "will

be deemed truthful when the information put forth is believed or

appropriately accepted by affiant." State v. Feland (1994), 267

Mont. 112, 115, 882 P.2d 500, 501 (citing State v. Mosley (1993),

260 Mont. 109, 116, 860 P.2d 69, 73). In this case, Agents Hayes 

and Skuletich observed the structure firsthand and from their

vantage point, this information appeared correct. Accordingly, we

see no need to excise this information from the application.

 Finally, Defendants argue that the information contained in

the warrant application is not indicative of criminal activity and

that the State made unsupported conclusions. "[F]acts of a

description and location of property, while easily confirmable by

a driveby, can hardly be regarded as probative of the probability

of the presence of contraband therein." Holstine, 860 P.2d at 113. 

More specifically, the statements contained in the warrant

application that Defendants were "secretive" about what was

transpiring inside the structure, that Defendants were not covered

by workers compensation, that law enforcement officers were unable

to confirm gainful employment, that Defendants had not obtained a

building permit, and that the well was not fit for human

consumption do not indicate criminal activity. Conclusory

statements will not provide a substantial basis to conclude that

probable cause existed to issue a search warrant. State v. Kaluza

(1995), 272 Mont. 404, 410, 901 P.2d 107, 110 (citing State v.

Wilson (1992), 254 Mont. 317, 320, 837 P.2d 1346, 1348). 

 The search warrant application in this case does not contain

any information of a criminal history for any of the Defendants or

that any of the Defendants had been connected with any criminal

activity in the past. "A mere affirmance of belief or suspicion by

a police officer, absent any underlying facts or circumstances,

does not establish probable cause for the issuance of a search

warrant." Isom, 641 P.2d at 424. 

 The only information suggesting possible criminal activity on

the part of Defendants is found in the District Court's order

denying Defendants' motion to suppress. In its first finding of

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fact, the District Court related information about a routine call

regarding a civil disturbance at Defendants' residence in March

1994. While investigating this incident, the Sheriff observed a

"sizeable quantity of firearms in the front room." According to

the court's finding, the Sheriff's subsequent report to federal

authorities of the existence of this cache of firearms led to the

NIB's investigation of Defendants. However, this information is

not contained within the "four corners" of the application. The

information that is contained within the application is just as

consistent with a conclusion that legitimate farming operations

were occurring on the property as it is with a conclusion that

illegal activities were occurring. 

 Therefore, an examination of the Application for Search

Warrant in the present case leads us to the conclusion that the

District Court did not have a substantial basis for finding that

the application contained sufficient probable cause to issue a

warrant to search Defendants' property. Accordingly, we reverse

the District Court's order denying Defendants' motion to suppress.

 Issue 4.

 Did the District Court err in denying Jones' Motion

 to Dismiss the criminal proceedings against him on double

 jeopardy grounds after the State obtained a judgment

 against him in a civil forfeiture action?

 Jones appealed the denial of his motion to dismiss the

criminal proceedings against him on double jeopardy grounds. 

However, in light of the recent United States Supreme Court

decision in U.S. v. Ursery (1996), ___ U.S. ___, 116 S.Ct. 2135,

135 L.Ed.2d 549, wherein the Court held that civil forfeitures do

not constitute "punishment" for purposes of the Double Jeopardy

Clause, Jones has now waived his claim of double jeopardy.

 Reversed.

 /S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

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Chief Justice J. A. Turnage, specially concurring: 

 I concur in the result of this case; however, I express

concern that part of the conclusion of the Court on Issue 1 may be

the source of misunderstanding, and a problem for this Court as

well as law enforcement. This opinion states: 

 Accordingly, we conclude that, in the absence of a

 search warrant, the use of thermal imaging as a criminal

 investigative tool implicates Article II, Section 10 of

 Montana's Constitution and requires the demonstration of

 a compelling state interest, other than enforcement of

 the criminal law. [Emphasis supplied.]

 Surely this Court does not intend that under no circumstances

may thermal imaging ever by used along with other facts to

establish probable cause for issuance of a search warrant. 

 In enforcement of the criminal law involving certain crimes

that viciously threaten the lives of our citizens, such as

homicides at the hands of serial killers or fanatics who may kill

hundreds of citizens by bombing public facilities, the use of

thermal imaging may be an essential tool, along with other credible 

information, that would lead to a valid search warrant and arrest

of the perpetrators. 

 /S/ J. A. TURNAGE

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