Monday, February 28, 2011
Law Enforcement Is Reviewing Electrical Records To Find Marijuana Grow Operations
A newspaper article describes how law enforcement is using utility records to attempt to identify homeowners who are running illegal marijuana growing operations in their basements and attics.
According to the Columbus Dispatch, utilities around Ohio receive approximately 60 subpoenas each month for customer billing information. The utilities claim to be sensitive to “customers' expectation of privacy,” yet provide the information because they believe that “There's not an option to say no."
From a Fourth Amendment standpoint, law enforcement almost assuredly does not need a warrant to simply review electricity use records maintained by the electric company. While people have a heightened expectation of privacy in their homes, activities, statements, or objects exposed to public view such as a list of telephone calls, garbage set out on the curb, or aerial photographs, are not protected. The use of technology to look inside a house has been found to be unconstitutional only when it could reveal details of intimate activities within a house. Meter readings does not fit this standard, as it only reveals how much power is used, not how the power is used.
My quick review of the cases on this topic suggest that that police would have a tough time obtaining a search warrant based solely on electrical use. Most reported cases begin with the police receiving some sort of tip, and then using the utility records to corroborate the tip. The article suggests what can happen if police rely solely on high energy uses – they found a business that used a large number of computers.
The article also suggests that police cannot survey large areas. I don’t think this is correct from a Fourth Amendment/constitutional standpoint. There would not seem to be any problem with police reviewing electrical records for high users, and then conducting other permitted activities to attempt to develop probable cause for a search warrant.