Several years ago, the United States military developed thermal imaging technology for targeting and reconnaissance purposes which law enforcement agencies subsequently adopted as a means of conducting surveillance in support of counter-narcotics efforts. Police use thermal imaging devices in counter-narcotics operations by scanning buildings and homes in order to determine higher heat emissions from buildings. These higher than normal thermal readings of homes act as indicators of possible marijuana grow operations due to the high output of heat from the indoor lamps commonly used for such activities. Even though a majority of jurisdictions have held that a thermal imaging scan of a home does not qualify as a search under the Fourth Amendment, and thus require a warrant, in 2001, the United States Supreme Court held in Kyllo v. United States that the use of thermal imaging devices by police in their investigatory capacities required the issuance of a warrant. The Eighth Circuit, in their recent decision of United States v. Kattaria, misconstrued the Supreme Court's holding in United States v. Kyllo. In Kattaria, the Eighth Circuit found that although a warrant is required prior to police using a thermal imaging device on a home, the traditional probable cause standard need not be met prior to a court or magistrate issuing such a warrant. Thus, the Eighth Circuit has created a hybrid Terry stop / search warrant.

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