### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
STATE OF TENNESSEE v. ROBER T A. NORRIS and LIDA MEAD OR
Direct Appeal from the Criminal Court for Cumberland County

No. 4860A & B Leon Burns, Jr., Judge

No. E1999-00485-CCA-R3-CD - Decided - May 31, 2000

This direct appeal pr

esents a certified question of law pursuant to Rule 37(b)(2)(i), Tennessee Rules of Criminal Procedure. The defendants pleaded guilty t o m anufacture of a controlled substance, subject to reservation of a certified question. In their certified question, thedefendants contend that law enforcemen t officers conducted an unreasonable search and seizure when the of ficers made thermal image scans of their home, that the search warra

nt did not allege suf

ficient facts to e

stablish probable cause, and that the information upon which the search warrant was issued was stale. One defendant received

judicial diversion and is not properly before this court on a Rule 3 appeal, and
we decline to grant her a Rule 10 extraordinary appeal. We conclude that thermal imaging is not an unconstitutional search, and the affidavit information was not stale. However, because the search warrant affidavit faile

d to establish proba

ble cause for the search, we reverse the trial court’s denial of No rris’s mot ion to suppress. Norris’s conviction is vacated and his charge is dismissed. Meador’s appeal is dismissed.

Tenn .R. App. P. 3 Appeal as of Right; Judgment of the Cri minal Court is Reversed, Conviction Vacated, and Charge Dismissed for appellant Norris. Appellant Meador’s appeal is dismissed.

W ITT , J., delivered the opinion of the court, in whic h W OODALL , J., joined, and R ILEY , J., filed a separate opinion concurring in part and dissenting in part.. Joe L. Finley, Assist

ant Public Defend

er, for the appe

llant, Robert A. No

rris. Randall A. York, Crossville, Tennessee, for the appellant, Lida Meador.

Paul G. Summers, Attorne y General & Repor

ter, Ell en H. Pol lack, Assistant Att orney General, William Edward Gibson, District Attorney General , David Alan Patterson and Anthony J . Craighead, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

### -2- The defendants, Robert A. Norris and Lida Meador, appeal a certified question of law pursuant to Rule 37(b)(2)(i), Tennessee Rules of Criminal Procedure. In the Cumberland County Criminal Court, the defend ants pleaded guilt

y to manufacture

of a controll

ed substa nce, a class E felony, subject to reservation of a certified q uestion. In their c ertified question

, the defendants contend that law enforcement officers infringed on their rights to be free of unreas

onable searches
an d seizures pursuant to the Fourth Amendment of the United States Constitution and article 1, section 7 of the Tennessee Constitution, that the search warra

nt did not allege suf

ficient facts to establish probable cause

, and that the information upon which the search warrant was issued was stale. After hearing o

ral argument and

reviewing the re

cord and the brie

fs of the parties,

we reverse the trial court's den

ial of Norris’s mot

ion to suppress, va

cate Norris’ s conviction and dismiss his charge. We dismi

ss Meador’s appe

al.

The facts in the case at bar are not in dispute. On May 5, 1997, the Cumb erland County Sheriff’s Depa

rtment searche

d the defendant’ s residence purs uant to a search warrant issued that same day. As the r

esult of the sear

ch, the defenda

nts were indicted

for the manufac

tu r e of a controlled substance, name ly marijuana, poss

ession with intent to

sell or deliver more than one-half
ounce of marijuana, and possession of drug paraphernalia. See Tenn. Code Ann. § 39-17-417 (1997) (manufacture

and possession with intent to sell or del iver) ; Tenn. Code Ann. § 39-17-425 (1997) (drug paraphernalia). After the trial court denied their motion to suppr

ess, the defenda

nts pleaded guilty to the offense of manufacture of a controlled substance and

reserved a ce

rtified question w

ith respect to the legality of the search. Defendant Norris was sentenced to two years in the Tennessee Department

of Correction, to be served on probation for two years. He w as als o fined $2000. Defendant Meador received judicial diversion and agreed to pay a $250 fine.

Initially, we note that Norr is has properly pr

eserved his

question of law under

Rule of Criminal Procedure 37(b)(2). In State v. Preston , 759 S.W.2d 647 (Tenn. 1988), o ur su preme court stated that

the final order or judgment from which the time begins to run to pursue a T.R.A.P

. 3 appeal must contain a

statement of the dispositive certified question of law reserved by defen dant for appella

te review and the

question of law must

be stated so as to clearly identify the scope and the limits of the legal issue reserved.

Id. at 650.

In the case at bar, th e trial court’s or

der reserving th

e right to appeal c

ontains a statement of the certified question which clearly identifies the scope and limits of the issue, and the order, signed by the parti

es, states that this issue is dispositive. Norr is’s judgment form c

ontains a note that his plea of guilty was entered with the reservation that the trial court’s denial of the motion to suppress is being appealed and mayvoid the conviction. Accordingly, Norris’s certified question is properly befor

e us.
With respect to Meado

r, jurisdiction is no

t so easily determined. She entered a best interest guilty plea and was judicially diverted pursuant to Code section 40-35-313. According to

### -3-

this section, the court, with the consent of the de fendant, defers further proceedings and places the defendant on proba tion with out entering a judgment of conviction. Tenn. Code Ann. § 40-35-313(a)( 1)(A) (1997). A final disposition of

the case does not occur until either the defendant violates a condition of the probation or the probation period ends. See id. at (a)(2). If the defendant is successful in com

pleting probati

on, the charges are dismissed, “without court adjudication of guilt.” Id

. While

in the posture of having pleaded guilty and having been granted judicial diversion, Meador endeavors to appeal a certified question of law under Tennessee Rule of Criminal Procedure 37(b)(2). The 37(b) provisions allow the reservation of a certified question of law that is dispositive of the case, “[u]pon a plea of guilty or nolo contendere .” Tenn. R. Crim. P. 37(b)(2). However, the appeal of the reserved, certified question is controlled by Rules 37(a), (b), 32(e), and Tennessee Rule of Appellate Procedure 3(b), (c).

The interplay among th

ese rule provisio

ns is somewhat intric

ate

. Rule 37(b) says,

“ An appeal

lies from any order or judgment in a criminal proceeding where the law provides for such
an appeal, and from any judgment of conviction . . . [u]pon a p lea of guilty or nolo contendere,” when the requirement

s for a reserva

tion of a certifie

d question are met

or when oth

er bases for a post-guilty plea are present, which bases are not applicab le in the present c

ase. Tenn. R. Crim.

P. 37( b) (emphasis added) . The rule define s “an appeal” a

s used in Rule 37 as “ [d]irect appel late review available as a matter of right .” Tenn. R. Crim. P. 37(a ) (emphasis adde

d). Thus, in

order for a defendant to c

laim the benefits o

f a certified qu

estion appeal und

er Rule 37(b), th

e o rder or judgment from which the appeal is sought must be appealable “as a matter of right.”

The rules establish two types of cases which entail appeals a

s a matter of right

. First, Tennessee Rule of Appellate Procedure 3(b) provides that, in a “criminal action[,] an appeal as of rightby a defend ant lies from any judgment of conviction entered by a trial court from which an appeal lies to the Supreme Court or Court of Criminal Appeals: (1) on a plea of not guilty; and (2)
on a plea of guilty or

nolo contendere

, if the defendan

t entered into

a plea agreement

but explicitly reserved with the consent of the state and the trialcourt the right to appeal a certified question of law dispositive of the action” or the defendant de

sires to appeal a senten

ce or certain ot

her issues to which he is not bound by his guilty plea, the latter being circ umstances not appl

icable in the present
case. Tenn. R. App. P. 3(b) (emphasis added). Second, Rule of Criminal Procedure 37(b) mentions additional provisions for app eals as a ma

tter o f right which do not emanate from judgments of conviction - appeals which emanate from “any order or judgment . . . where the law provides” for
an appeal as a matte

r of right. Tenn. R.

Crim. P. 37(b). One must switch back to R ule of Appellate Procedure 3(b) to ascerta

in when the law provides for such additional appeals: “The defendant may also appeal as of righ

t from an order de

nyin g or revoking p robation, and from a judgment in a criminal contempt, habeas corpus, extradition, or post-conviction proceeding. ” Tenn. R. App. P. 3(b). Therefore, an appeal of a dispositive certified question of law may be made as a matter of right in two situations: (1) upon the entry of a judgmentof conviction, which by definition sets forth “the plea, the verdict or findings, and the adjudication and sentence,” Tenn. R. Crim. P. 32(e), or (2) upon the entry of one of the orders specified above. We review in tur n these possibi lities and their possible application to the present case.

### -4- (1) An appeal founded u pon a judgment of conviction . As pointed out above, the guilty plea which results in an order o f jud icial diversion is not consummated into a judgment of conviction, unless the defendant breaches the conditions of his diversion/probation. Ten n. C ode Ann. § 40-35-313(a)(1)(A), (2) (1997). Consequently, the ruleprovisions for a rightful appeal based upon a judgment of conviction do not authorize an appeal of a certified question in

the present case.
(2) An appeal based upon an order denying or revoking probation or a final judgment in a criminal contempt , habeas corpus , extradition , or post-convicti o n proceeding . Among the alternative bases for an app eal as a matter of

right, one basis - an order denying probation - makes
a connection with judicial diversion. “Judicial diversion” is merely “an appellation supplied by the
co urts, probably to distinguish it from section 40-15-105 pretrial diversion, and the phr ase is no t used in the governing statute, section 40-35-313.” State v. Stephen J. Udzinski and Donna Stokes , No. 01C01-9810-CC-00431, slip o p. at 9 (Te nn. Crim. App., Nash ville, Feb. 5, 1998)

(minority opinion). In actuality, the statute is a “probation” statute. Id . It is captioned as such and is inserted in the Code “immediately after the provisions dealing with other forms of probation .” State v. Talmadge G. Wilbanks , No. 02C01-9601-CR-00003, slip op. at 5-6 (Tenn. Crim. App. , Jack son, Nov. 19, 1996), perm
. app
. denied (Tenn. 1997). Section 40-35-313 prescribes probation during the deferral period.

This nexus of judicial diversion, or “probation,” to the alternative bases for a rightful appeal avails the Defendant Meador nothing, ho wever, for at l east two reasons. First, she is not attempting to appeal the diversion decision itself; rather, she seeks review of the pre-diversion issue of the trial court’s

denial of a motion to

suppress evidenc

e. For th e rea sons given above, the appellate review as of right of this issue clearly requires a judgment of conviction. See Udzinski , slip op. at 11 (mi

nority opinion); see also State v. Glenna Kidd , No. 01C01-9808-CR -00344, slip op. at 2-3 (Tenn. Crim

. App., Nashville, May 13, 1999). Second, the alternative appeal basis of an order “denying probati

on” cannot be use

d for the simple re

ason that p

robat ion was not denied. It
was granted, and only the state has a basis for a righ tful appeal in s uch a situation. See Tenn. R. App. P. 3(c).

The conclusion is that Meador, having not been denied probation and not s

eeking to appeal the diversion order, and having received no conviction judgment, has no rightful appeal and, consequently, no basis for appealing a certified question of law. In passing, we find no disharmony
nor unfairness

in the rules which establish these requirements. A trial court may not impose judicial diversion except with the defendant’s consent. Tenn. Code Ann. § 40-35-313(a)(1)(A) (1997). As
a practical matter, a trial

court rarely if ever grants judicial diversion until a defendant has literally beggedfor it. At any rate, a defendant has the options (1) to eschew judicial diversion if he or she wishes to seek a

review of a give

n issue through the a

ppropriate metho

d of appeal,

(2) when seeking judicial diversion after a gu ilty plea, to reserve a certified question, upon submitting a plea, to be presented on appeal pursuant to Rule 37(b) after judicial diver s ion is denied and a judgment is entered, or if diversion is granted, to be presented on appeal if and w

hen the diversion p

robation is revoked and judgment is entered, (3) if judicial diversion is granted after a trial, to raise an issue on appeal in the event of a revocation of the diversion probation, or (4)

in the appropriat

e circumstance

s, to seek a discretionary, interlocutory appeal under Tennessee Rules of Appellate Procedure 9 or 10.-5-

Although the choice to accept judicial diversion at least po stpones a nd perhaps jeopardizes the defendant’s opportunity to raise a legal issue, the quid pro quo , as compared to the defendant who pleads guilty and receives a conviction and a probated sentence, is that the defendant who accepted diversion has a self-determined chance to emerge from the process without a conviction on his or her record.

That

said, this court may treat an improperly f iled Rule 3 appeal as a Rule 10 extraordinary appeal. See State v. Leath , 977 S.W.2d 132, 135 (Te nn. Crim. App. 1998) ; State v. James Doe , No. 01C01-9102-CR-00046, slip op. at 5-6 (Tenn. Crim. App., Nashvil le, June 29, 1992). Tennessee Rule of Appellate Procedure 10(a) provides that an extraordinary appeal may be sought “if the lower court has so far departed from the acce pted and usual course of judicial proceedings as to require immediat e review or . . . if necessary for complete determination of the action on appeal . . . .” Tenn. R. App. P. 10(a).

We conclude, however, that Meador does not pr ese nt a compelling case for the granting of a Rule 10 appeal. Typically, the Rule 10 requir ements for a discretionary appeal are not met when a trial court overrules a defendant’s motion to suppress evidence. We see no reason why this typical result should notprevail in this case. Accordingly, Meador’s appeal must be dismissed.

We now move to consider Norris’s challenge to the d enial of his motion to

suppress the evid ence obtai ned by means of a search warrant executed on May 5, 1997. In his certified question, he presents thre e grounds in suppor

t of his contention th

at th e searc h warrant was defective. First, the thermal imaging scans performe d on his house violate

d his constitutional r

ights, and inclu di ng the results of the scans in the affidavit tainted the probable cause determination. Second, the information contained in the warrant’s affidavit did not establish probable cause. Third, the information contained in the search warrant was stale. I. Thermal Imaging

Norris contends that the search warrant was defe cti ve because the p

robable cause determination was ba sed on thermal imaging scans performed on his house. The defendant complains that when the law enforcement office r s made thermal imaging scans of his home, the officers infringed their r

ights to be free of

unreasonable se

arches and seiz

ures pursuant to

the Fourth Amendment

of the United States Constitution and article 1, section 7 of the Tennessee Constitution.

The Constitution of the State of Tennessee g uarantee s "[t]hat the people shall be
secure in their persons, houses, papers and possessions, from unreasonable searches and seizures." Tenn. Const. art. I, § 7. Th is same guarantee is embodied in the Fourth Amendment of the United States Constitution. The tou chstone of unrea

sonable search

and seizure ana

lysis is " whether a

person has a 'constitutionally

protected reas

onable expectation of

privacy.' " California v. Cira olo , 476 U.S. 207, 211, 106 S. Ct. 1809, 18 11 (1986); see Katz v. United States , 389 U.S. 347, 360, 88 S. Ct. 507, 516 (1967) (Harlan, J., concurring).1 This discussion regarding the rmal imaging is based on evidence presented at the

suppression hearing and in United States v. Kyl lo , 190 F.3d 1041 (9th Cir. 1999), which contains a discussion of the general theory and uses of thermal imaging.

2 Emissivity

is the relative ability of

a surface to radiate energy as compared with that of an ideally black surface under the same condition

s. Webster’s Ne

w Collegiate

Dictionary (1996).
-6- Through Katz

and its progeny, the United States Supreme Court has pronounced a two-part inquiry in

determining an individual's constitutionally protected reasonable expectation of privacy. “[F]irst, has the individual manifested a subjective expectation of privacy in the object of t he challenged search? Second, is society willing to recognize that expectation as reasonabl e? ” Ciraolo , 476 U.S. at 211, 106 S. Ct. at 1811 ; State v. Bowling , 867 S.W.2d 338, 341 (Tenn. Crim. App. 1993). Such analysis has been applied in this state. See, e.g. , State v. Roode , 643 S.W.2d 651, 652-3 (Tenn. 1982).

In determining whether defendant Norris manifes te d a subjective expectation of privacy, we are aware that neither the Fourth Amendment nor article 1, section 7 of the Tennessee Constitution protectswhat a citizen "knowing

ly exposes to the pu

blic." See Katz , 389 U.S. at 351, 88 S. Ct. at 511; Bowling , 867 S.W.2d at 341. “That which a citizen kn owingly exposes t o the public is that in which he or she has not manifested [a] subjective expectation of privacy.” Bowling , 867 S.W.2d at 341.

In order to

determine whether the

defendant had a reasonable expectation of privacy,
we must first determine the nature of the activity that was det ected by the thermal imaging scans made of the defendant’s home. 1 A thermal imaging device, or a thermal imager, is a video cameralike device which provides an image based on the temperature of objects viewed. Just as a camera shows images based on light, a thermal imager shows images based on temperature.

A thermal imager displays images of objects or surfacesat a higher temperature as whiter than other, cooler objects. The imager used in the case at ba r could indicate dif

ferences in temperature as little as one-quarter de gree Celsius. How

ever, it could

not provide information on the actual temperature of

the objects

viewed. Other, more sophisticated thermal imagers can provide measurements indicating the actual temperature of the objects scanned.

A thermal imager relies on t he heat radiate

d from objects and

surfaces in orde

r to produce its images. Every object radiates heat as infra-red energy. The amount of radiation given off by an object is dependent upon the object’s emissivity 2 and temperature. Unlike a light-based camera, a thermal imager cannot see through glass. It can o nly see the temper ature of the glas s. Very few common items are transparent to heat radiation. For most materials, a thermal imager is not capable of “seeing” through or scanning beyond the first substantial object it encounters.

To say that the thermal imager can detect the heat loss of the ho use is not e ntirely accurate. The thermal image r detects the differential temperature of house surfaces. One factor that-7-

may mak e an outside surface warmer than othe

r, similar surfac

es is poor insulation

, which is typically a cause of heat loss and poor energy efficiency. However, the higher surface temper ature may also be due to a

heat source loca

ted behind the wal

l.

In the case at bar, the thermal imaging equipm ent operator testified that the equipment
was not capable of de

tecting the conte

nts of or the acti

vities in the defendant’s basement. The imager could only indicate that the outside basement wall was at a higher tem perature than other walls and surfaces.

The higher temperature could have been due to someone livin

g in the basement. It also could have be

en due to a furna

ce or other whole

-house heater, high-int

ensitygrowing lights,
or another heat source in the basement. What wa s exposed to the public, and ma de accessible through the use of thermal imagery, was only the information of the differential temperatures of the outside surfaces of the defendant’s home. Based on the detection of the higher temperature of the exterior basement walls, th

e police asserte

d in a search war

rant affidavit th

at the defendant was growing marijuana

plants in the basem

ent.

We move directly to the second Katz inquiry, whe t her any expectation of privacy maintained by the defendant in the surface temperature of his home was reasonable. Katz , 106 S. Ct. at 1811 ( Katz

second inquiry). "In pursuing this inquiry, we must keep in mind t hat '[t]he test of legitimacy is not whether the individual chooses to conceal assert edly "pr ivate" activity,' but instead 'whether the gove

rnment's intrusion i

nfringes upon the

personal and soc

ietal valu es protected by the Fourth Amendme

nt.' " Id. at 212, 106 S . Ct. at 1812 (quoting Oliver v. United States , 466 U.S. 170, 182-83, 104 S. Ct. 1735, 1743 (1984)).

We are not persuaded that the defend ant’s expectation of privacy is reasonable. Thermal ima ging is a non-invasive, non-intrusive method of detecting elevated outside surface temper atures of ho uses and other structures. It cannot determine what type of activity inside the home caused the outside surface tempe rature to be eleva

ted, although the outside surface temperature is due, in part, to activities conducted inside the home. Thermal imaging devices cannot see inside the home or through walls. Because thermal imaging cannot detect any details of the defendant’s private life, we conclude that

his expectation of privacy in the differenti al surface temp

erature of his home is unreasonable. Accordingly, the use of a thermal imaging device did not amount to a search, and therefore, no Fourth Amendment protection attaches.

While the factual situation makes this a case of first impression in Tennessee, support exists for our conclusion in the decisions of other jurisdictions. In United States v. Kyllo, 190 F.3d 1041 (9th Cir. 1999), petition for cert. filed , (Mar. 7, 2000), t he United States Cou

rt of Appeals reached the same conclusion under similar facts as the case at bar. Id. at 1045-47. The Kyllo court determinedthat thermal imaging, “while giv ing information una

vailable to

the naked eye, did not expose any intimate details of [the defendant’s] life.” Id. at 1047. The Ky llo court coul d not “conclude that this surveilla nce was ‘ so revealin

g of intimate details as to raise constitutional concerns.’” Id. (quoting Dow Chem. Co. v. United States , 476 U.S. 227, 238, 106 S. Ct. 1819, 1827 (1986)); see also, e.g. , United States v. Mooring , 137 F.3d 595 (8 th Cir. 1998 ) ; Unit ed States v. Ishmael , 48 F.3d 850 (5th Cir. 1995); United States v. Myers , 46 F.3d 668 (7th Cir.1 995); United States v. Ford , 34 F.3d 992 (11th Cir. 1994). But see Commonwealth v. Gindlesperger , 743 A.2d-8-

898 (Pa

. 1999); State v. Young , 123 Wash. 2d 173, 867 P.2d 593 (Wash. 1994) (thermal imaging of citizen’s home violated state constitution’s protection of defendant's private affairs and protection against warrantless invasion of home).
II. Probable Cause

Norris contends that the search warrant was defective because the inform a tion contai ned in the warrant’s affidavit was not

sufficient to esta

blish probable ca

use. At t

h e suppression hearing, the stat e conceded that

i n the ab sence of the thermal imaging results, the allegations of the affidavit were not sufficient to establish probable cause.

In pertinent part

a deputy in the Cumbe

rland County

Sheriff’s Depa

rtment, stated in his affidavit in sup

port of the searc

h warrant that

he has been a narc

otics K-9 office

r for 2-1/2

years, and a certified police officer for 4-1/2 years and has be

en trained in

the detection of

“marijuana grow systems” and in the use of thermal imagery. Affiant has been trained to detect marijuana growing operations and has personal knowledge that the said Robert A. No rris and Lid a A. Meador have grown marijuana indoors prior to this date as evidenced by the removal of a grow operation in September of 1996. Aff iant sta tes that the house/residence
seems to have a high level of abnor mal security which is t

ypical of homes wit

h gr owing ope rations, to-wit: 1) the windows are painted black and 2) the house has
a lock and hasp. The blacked out windows pr event view of the inside of the residence and the lock and hasp protect it from entry. Another characteristic which is consistent with a marijuana growing residence is the fa ct th at the levels of electricity used vary throughout the year. The residence is that of pers ons whom affiant knows to have had a grow operation prior t

o this date. Said

persons do have
an arrest record of usage and sale of a controlled substance. Affiant further stat es that this affidavit is based upon the use of a thermal imaging device. Said thermal image de vice do es a non-contact, heat sensing, of surfaces. It is passive and nonintrusive and does not see into or through structures. Thermal technology has been used since the 1950s and is available to the public and is commonly used. Th e thermal operator used in this instance is David Caruthers of the TennesseeNational Guardand he is certifi ed in the use of the rmal imaging and ha

s been involved in other Criminal Court cases as an op erator. The fir st imaging session at

this residence/home

was on February 1 2, 1997, at approx imately 12:40 AM, an

d again
on the same

date at approximately 2:55 AM. Hesaid the basement was much hotter than the living areas of the residence. On February 20, 1997 at approximately 1:00 AM, another thermal imaging was performed and a video m ade of the subject residence, and a “good heat signature” was present. Another dwelling in thearea, of similarstructure, was a

lso thermal imaged

at approximately

the same time, which did not show any heat at all in the basement area. Neither dwelling is known to hav e people living in the basement area. On March 13, 1997 at approximately 2:55 AM,
ano ther session was conduc

ted of the reside

nce of Robert A. N

orris and Lid

a A

.-9-

Meador, and the thermal operator received the highest heat signature yet. On March 26, 1997, another the

rmal session was do

ne and a better si

gnature was show

n. This shows that the amount of heat has been progressive since the thermal imager w

as first used. The heat imaging results are consistent with the affiant’s training for detection and indicate a mariju

ana grow system wi

thin the basement of the described dwelling.

At th e supp ression hearing, the deputy-affiant admitted that he was not a certified operator for thermal imaging and that he had no formal training in thermal imaging. He testified that he never worked with thermal imaging prior to the case at bar. He

admitted that his sta

tement in the affidavit that he “has been trained . . . in the use of thermal imagery” was “inaccurate” because his only training in therma

l imagery was wha

t he le arned from the operator of the thermal imaging equipment in the case at bar.

Also, the deputy testified that he knew that the basement windows were painted black when the residence w

as searched in Se

ptember of th

e previous ye ar. He stated that he was not certain if the lock and hasp were present during the previous search.

He testified that he did not investigate whether anyonewas living in the basement of the defendant’s home before he made the allegation, “ Ne ither dwelling is kn

own to have people living in the basement area.”

The deputy testified th

at he subpoenaed

the defendant’s

electrical rec

ords. He could notremember why he did not disclose the details of defendant’s ele

ctrical usage or

otherwise

support his allegation that “the levels of electricity used var[ ied] throughout the year.” The deputy stated that the defendant’s electrical usage for January and April of 1997 was less than for the same months in 1996. Also, he stated that the defendant’s electrical usage for each of the months of February and March of 1997 was great er than that of January 1997 and that their usage from February through Aprilof 1997 decreased each month. He did not know what the average outside temperatures were during that period of time.

The operator of the thermal imaging device, David Ca ruthers of the Te

nnessee Army National Guard Drug Division, testified at the suppression hearing. He did not know whether anyone was living in the defendant’s basement or if there was a furnace in the basement. He testified that either condition would produce thermal imaging results similar to those he obtained from the defendants’ house.

Caruthers testified that he could not say whether any one of

the five thermal imaging
scans made of the defendant’s home showed a hi gher or lower temperature relative to the other
scans. He said that the terms he used, such as “good heat signature” and “

better signature

,” indicate the quality of th

e scan and are not indicative of the temperature of the basement relative to other scans made of the same basement at other times. Caruthers admitted that the he at imaging results were not necessarily indicative of a growing operation.-10- The issue presented by the defendants is whether the affidavit upon which the search warrant was issued

sufficiently states probable cause. In reviewing the issue, we must uphold the trial court's denial of

the defendants'

motion to suppress

unless the evidenc

e preponderate

s against the lower court's findings. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). In Odom , our supreme court clarified the sta

ndard to be used by

appellate courts when reviewing the trial court's findings of fact and conclusions of law:

Questions of c redibi lity of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fa

ct. The party

prevail ing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well
as all reasonable and legitimate inferences that may be drawn from that evidence. So long as the greater w

eig ht of the e vidence supports the trial court's f

indings, those findings shall be upheld. In other words, a tr

ial court's finding

s of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.

Id. at 23. The application of the law to the facts found by the trial court, however, is a question of law which this court re

views de novo

. State v. Crutcher , 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997); Odom , 928 S.W.2d at 23.
“[T]he sufficien c y of a search warrant affidavit is to be determined from the allegations containedin the affidavit alone.” State v. Henning , 975 S.W.2d 290, 297 (Tenn. 1998). Probable cause for the issuance of a sear ch warr ant exists when facts and circumstances demonstratedby an underlying affidavit are sufficient in themselves to w arra nt a person of reasonable ca

ution to believe tha

t certain items

are the fruits of

illegal activity

and are to be found at a certain place. United States v. Acklen , 690 F.2d 70 (6th Cir. 1982); see, e.g. , Illinois v. Gates , 462 U.S. 213, 103 S. Ct. 2317 (1983); Spinelli v. United States , 393 U.S. 410, 89 S. Ct. 584 (1969). In rev iewing a search warrant affidavit for probable cause, we must read the la nguage "in a commonsense

and practical ma

nner," State v. Melson , 638 S.W.2d 342, 357 (Tenn. 1982), and the affiant's words should be given their natural meaning and interpretation. State v. Smith , 477 S.W.2d 6, 8 (Tenn. 1 972). The reviewing standard is whether the magistrate had a substantial basis for concluding that a

search warrant would uncover evidence of wrongdoing. Spinelli , 393 U.S. at 418, 89 S. Ct. at 590; State v. Jacumin , 778 S.W.2d 430, 432 (Tenn. 1989). On review, determinations of probable cau

se are factual

ly specific

and must be dealt with on a case-by-case basis. Fowler v. United States , 229 F.2d 215 (6th Cir . 1956). A magistra

te's probable ca

use determination

is accorded "great deference" by a reviewing court. Jacumin , 778 S.W.2d at 431-32.

T he Fourth Amendment to the United States Constitution requires that searc h warrants issue on

ly "upon probable c

ause, supported b

y Oath or affirma

tion." Article 1, section 7 of the Tennessee Constitution precludes the issuance of warrants except upon "evidence of the fact committed." Therefore, und er both the federal and state constitutions, no warrant is to be issued3 In making his probable cause determination, the magistrate must rely on accurate

information. False or misleading statements in the a

ffidavit may invalidate

a search warrant. State v. Little , 560 S.W.2d 403, 407 (Tenn. 1978). In Little , our supreme court held that

there are two circumstances that authorize the impeachment of an affidavit sufficient
on its face, (1) a false statement made with intent to deceive t he Court , whether material or immater ial to the issue of probable cause, and (2) a

false statement, essential to the establishment of probable cause, recklessly made.

Id. at 407. In addition, the court held, "Recklessness may be established by showing that a statement was false when made

and that affiant

did not have reas

onable grounds for belie

ving it, at that time." Id. In order to be “essential to the establishment of probable cause,” the false statement m

ust be the only ba sis for p robable cause o r if not, the other

bases, standing a

lone, must not be suf

ficient to establish probable cause. State v. Tidmore , 604 S.W.2d 879, 882 (Tenn. Crim. App. 1980). The evidence presented at the suppression hearing indi cates tha t the affidavit contained reckless and misleading statements concerning the deputy’s training in thermal imaging sur

veillance, the tim

ely significance of the blacked-o ut win dows , the significance of the electrical usage, the inculpative nature of follow-up th

ermal im aging scans, and whether anyone occupied the basement level of Norris’s house.

Had the trial court

reviewed whether the affidavit established probable cause without the tainted allegations, we would be inclined to do likewise. See Tidmore , 604 S.W.2d at 882. However, appellate review of certified questions of law is “limited to those [issues] passed upon by the trial judge.” State v. Preston , 759 S.W.2d 647, 650 (Tenn. 1988). For this reason, we consider the affidavit in its totality, including allegations which the record shows to be misleading.
-11- except upon probable cause. Illinois v. Gates , 462 U.S. 213, 103 S. Ct. 2317 (1983); Sta te v. Henning , 975 S.W.2d 290, 294 (Tenn. 1998); see also Tenn. Code Ann. § 40-6-103 (1997). 3

We conclude that the

search warra

nt affidavit sets

forth only conclusory sta

tements that do not explain why the observe d activity ind icates an illegal act. As noted by the

Supreme Courtof Utah, “[p]olice officers by virtue of their experience and training can sometimes recognize illegal activity where or

dinary citizens w

ould not. Some

recognition should appropriately be given to that experi ence and training where there are objective facts to justify the ultimate conclusion.” Statev. Dorsey , 731 P.2d 1085, 1088 ( Utah 1986) (cita

tions omitted) (emp

hasis added). Here, there
are no facts that support

the affiant’s conclusions. For example, the affiant states that “[a]nother characteristic

which is consistent

with a marijuana g

rowing resid

ence is the fact that the levels of electricity used vary through

out the year;” ye

t, the affidavit does not state specific levels of use, nor does it state

why such varying u

se is significant. T

he affiant has pr

ovided no basis for

his opinion that a particular pa

ttern of electri

city usa ge equates to growing marijuana, and thus the statement regarding electricity use has no probative value whatsoever.-12- The same reasoning applies to the evidence procured by the thermal imaging device. The affiant never states why the detection of heat is relevant in detecting a marijuana growing operatio n. The affidavit does not state why one would ordinarily not expect to find heat in th e basement of a house. Nor does the affidavit say why increased levels of heat are consistent with a growing operation. Even reading the aff idavit in a common-sense fashion, one is unable to find any other information in the affidavit which would show why the thermal imaging info rmation is probative of a marijuana growing operation.

In short, the affidavit provided conclusory state

ments without stating

facts as to

why the conclusions were valid. For instance, painted windows prevent someone from seeing inside a home butso do blinds and curtains. A lock and hasp prevent entry but so does a dead bolt lock. The affidavit does not explain wh

y painted windows a

nd a lock and hasp a

re typical of home

s with growing marijuana operations instead of homes whose residents prefer more privacy and security.

The net result is that the affiant requested a warrant beca

use Defendant N

orris has a prior criminal background. This is not a substantial basis for concluding that

a search warr

ant would
uncover evidence of wrongdoing. The warrant fails for lack of probable cause, and thus the items seized during the resulting search should have been suppressed.
III. Staleness

The defendant contends that the search warrant was defec tive because the informatio n containedin the affidavit supporting the search warrant was stale. The defendant argues that the 40- day delay in making the affidavit after the last thermal imaging scan renders the thermal imaging information stale. In li ght of our conclus ion that the searc

h warrant is inval

id, this issue is moot. However, because of the possibility of further review, we will a

ddress the defen

dants’ final issue. See Jacobs v. State , 224 Tenn. 106, 107, 450 S.W.2d 581, 582 (Tenn. 1970).

In order to establish probable caus e, a n affidavit must set forth facts from which a reasonable

conclusion may be drawn that the contraband will be found in the place to be searched pursuant to the warrant. State v. Longstreet , 619 S.W.2d 97, 99 (Tenn. 1981). The affidavit must allege that the contraband sought to be seized or the illegal activity in

question exists at the moment the search warrant is to be issued. State v. Curtis , 964 S.W.2d 604, 616 (Tenn. Crim. App. 1997) (citing Sgro v. United States , 287 U.S. 206, 210-12, 53 S. C t. 138, 142 (1932) ). To this end, the affidavit must contain inform

ation which will all

ow a magistrate to

determine whethe

r the facts are too stale to establish probable cause at the time issuance of the warrant is sought. Longstreet , 619 S.W.2d at 99; see also State v. Vann , 976 S.W.2d 93, 105 (Tenn. 1998).

Staleness must be determined on a case-by-case basis. State v. Meeks , 876 S.W.2d 121 (Tenn. Crim. App.1993). "When the illegal activity described is ongoing, courts havegenerally held that the affidav

it does not become s

tale with the passa

ge of time." State v. Thomas , 818 S.W.2d 350, 357 (Tenn. Crim. App. 1991). The issuing m agistrate must consider "whether the criminal activity under investigation was an isolated event or of a protracted and continuous nature, the nature-13-

of the property sought, and the opportunity those involved would have had to dispose of incriminating evid

ence." Meeks , 876 S.W.2d at 124.

In the case at

bar, the last of the series of thermal imaging scans was performed on March 26, 1997, and the affidavit was sworn on May 5, 1997. Thus, 40 days elapsed between the last thermal imaging sc

an and the execu

tion of the affida

vit and search warrant. Under the circumstances here, this almost six-week delay does not render the information stale. The affidavit allegedthat the defendant was growing marijuana, an illegal act which occurs over a several month period.

At

the very least, the affidavit alleges that the defendan t was g rowing one crop of marijuana. For

a single crop, the illegal activity of growing marijuana is ongoing and continuous for the per i od required for the plants’ development. Therefore, the illegal activity of growing marijuana is not an isolated event but requires a protracted period of time to complete. See Meeks , 87 6 S.W.2d at 124. Acc

ordingly, the date

of the search wa

rrant was not so fa

r remo ved from the various ther mal imaging dates that the fruits of the growing operation would not be still be found at the defendant’s residence.

The trial court’s denial of Norris’s motion to sup press is reversed. Norris’s conviction is vacated, and his charge is dismissed. Meador’s appeal is dismissed.