United States v. Danny Lee Kyllo

190 F.3d 1041, 99 Cal. Daily Op. Serv. 7456, 99 Daily Journal DAR 9419, 78 A.L.R. 5th 689, 1999 U.S. App. LEXIS 21562, 1999 WL 694733

Opinions

Opinion by Judge HAWKINS; Dissent by Judge NOONAN.

MICHAEL DALY HAWKINS, Circuit Judge:

As a matter of first impression in this circuit, Danny Lee Kyllo (“Kyllo”) challenges the warrantless use of a thermal imaging device as a violation of the Fourth Amendment. Kyllo also challenges reli-anee on a portion of an affidavit discussing his marriage to Luanne Kyllo (“Luanne”), but omitting mention of his divorce, arguing it should not have been considered in determining whether there was probable cause to issue a warrant to search his home. We affirm, holding that the thermal image scan performed was not a search within the meaning of the Fourth Amendment, and that the district court did not clearly err in finding the omission of the Kyllos’ divorce from the affidavit was not knowingly false or made in reckless disregard for the truth.

Factual and Procedural Background

Kyllo’s arrest and conviction on one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1) followed an investigation by a law enforcement task force into a possible conspiracy to grow and distribute marijuana. While investigating the activities of Tova Shook, the daughter of the task force’s original target, William Elliott (“Elliott”), an agent of the United States Bureau of Land Management, an agency participating in the task force, began to suspect Kyllo.

Oregon state law enforcement officers provided information , to Elliott that strengthened his suspicions. He was told that Kyllo and Luanne resided in one unit of a triplex, another unit of which was occupied by Tova Shook and that a car registered jointly to Luanne and Kyllo parked at the triplex. Elliott was also informed that Luanne had been arrested the month before for delivery and possession of a controlled substance and that Kyllo had once told a police informant that he and Luanne could supply marijuana.

Elliott then subpoenaed Kyllo’s utility records. Elliott compared the records to a spreadsheet for estimating average electrical use and concluded that Kyllo’s electrical usage was abnormally high, indicating a possible indoor marijuana grow operation.

At 3:20 in the morning in mid-January from the passenger seat of a car parked on the street, Sergeant Daniel Haas (“Haas”) of the Oregon National Guard examined the triplex of homes where Kyllo resided with an Agema Thermovision 210 thermal imaging device (“the Agema 210”).² All objects emit heat, in the form of infrared radiation, which can be observed and recorded by thermal imaging devices, such as the Agema 210. Specifically, thermal imagers detect energy radiated from the outside surface of objects, and internal heat that has been transmitted to the outside surface of an object, which may create a differential heat pattern.

In performing its function the Agema 210 passively records thermal emissions rather than sending out intrusive beams or rays — acting much like a camera.³ A viewfinder then translates and displays the results to the human eye, with the area around an object being shaded darker or lighter, depending on the level of heat being emitted. While at first used primarily by the military, thermal scanners have entered into law enforcement and civilian commercial use.⁴

Using the Agema 210, Haas concluded that there was high heat loss emanating from the roof of Kyllo’s home above the garage, and from one wall. Haas also noted that Kyllo’s house “showed much warmer” than the other two houses in the triplex. Elliott interpreted these results as further evidence of marijuana production, inferring that the high levels of heat emission indicated the presence of high intensity lights used to grow marijuana indoors.

Elliott presented this information in an Affidavit to a magistrate judge, seeking a search warrant for the Kyllo home. The warrant was issued and Elliott searched Kyllo’s home. As Elliott had suspected, an indoor marijuana grow operation was found, with more than one hundred plants. Marijuana, weapons, and drug paraphernalia were seized.

Kyllo was indicted for manufacturing marijuana, based upon the evidence seized during the search. The district court denied Kyllo’s motion to suppress the seized evidence, following a hearing. Kyllo entered a conditional guilty plea and was sentenced to a prison term of 63 months. Kyllo then appealed the denial of the suppression motion, challenging several portions of the Affidavit as well as the war-rantless thermal imager scan.

A panel of this court found that while the portion of Elliott’s Affidavit discussing Kyllo’s energy usage was false and misleading, the false statements were not knowingly or recklessly made. See United States v. Kyllo, 37 F.3d 526 (9th Cir.1994). While concluding it was therefore proper for the magistrate judge to consider that portion of the Affidavit in determining probable cause to issue the search warrant, the panel remanded for an evidentia-ry hearing on the intrusiveness and capabilities of the Agema 210 and a Franks⁵ hearing on whether Elliott had knowingly or recklessly omitted Kyllo and Luanne’s divorce from his Affidavit. See id. at 531.

Following a hearing on remand, the district court concluded that the omission of the divorce from the Affidavit, while misleading, was not knowingly false or made in reckless disregard for the truth. See United States v. Kyllo, No. Cr. 92-51-FR, 1996 WL 125594 (D.Or. Mar. 15, 1996). The district court, after hearing further evidence, made factual findings on the capabilities of the Agema 210 and concluded no warrant was required before the thermal scan. The district court therefore found probable cause to issue the warrant, and denied the motion to suppress. See id. Kyllo now challenges this decision.⁶

Standard of Review

“A district court must suppress evidence seized under a warrant when an affiant has knowingly or recklessly included false information in the affidavit.” See United States v. Dozier, 844 F.2d 701, 705 (9th Cir.1988). Because it is a factual finding, we review for clear error a determination of whether false statements or omissions are intentional or reckless. See id.; United States v. Senchenko, 133 F.3d 1153 (9th Cir.1998).

We review de novo' the validity of a warrantless search. See United States v. Van Poyck, 77 F.3d 285, 290 (9th Cir.1996); United States v. Ogbuehi, 18 F.3d 807, 812 (9th Cir.1994). We review for clear error any underlying factual findings. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Hernandez, 27 F.3d 1403, 1406 (9th Cir.1994).

Analysis

I. Search and Seizure Analysis

Kyllo’s essential claim is that a warrant was constitutionally necessary before the government could employ the thermal imaging device. The Fourth Amendment’s restrictions on governmental searches and seizures are triggered when the government invades an individual’s privacy. See Oliver v. United States, 466 U.S. 170, 177-78, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The individual need not show actual intrusion or invasion into a “protected space,” as “the Fourth Amendment protects people — and not simply ‘areas’ — against unreasonable searches and seizures.” Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). We follow a two-part test to determine whether the Fourth Amendment has been violated by a claimed governmental intrusion into an individual’s privacy. See id. at 361, 88 S.Ct. 507 (Harlan, J., concurring); see also Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (adopting Katz reasoning). We evaluate whether the individual has made a showing of an actual subjective expectation of privacy and then ask whether this expectation is one that society recognizes as objectively reasonable. See Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring); see also California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986).

In conducting this evaluation of whether a reasonable expectation of privacy has been infringed upon by government action, we consider the facts of the case at hand. See Dow Chemical Co. v. United States, 476 U.S. 227, 239 n. 5, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986); United States v. Karo, 468 U.S. 705, 712, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (“[W]e have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.”).

No one disputes that a warrant was not obtained before the Agema 210 was used to scan the thermal emissions from Kyllo’s house. In its inquiry into the technological capacities of the Agema 210, the district court found that it was a “non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house.” The court also found that “the device cannot and did not show any people or activity within the walls of the structure” and that it “recorded only the heat being emitted from the home.” Based upon a review of the record, we cannot conclude that these findings were in clear error. See Ornelas, 517 U.S. at 699, 116 S.Ct. 1657.

? argues in opposition that the thermal scan intruded into activities within his home, in which he had an expectation of privacy, rather than measuring “waste heat” emitted from his home. We disagree with Kyllo, and follow our sister circuits in holding that the use of thermal imaging technology in this case did not constitute a search under contemporary Fourth Amendment standards. See United States v. Robinson, 62 F.3d 1325 (11th Cir.1995); United States v. Myers, 46 F.3d 668 (7th Cir.1995); United States v. Ishmael, 48 F.3d 850 (5th Cir.1995); United States v. Pinson, 24 F.3d 1056 (8th Cir.1994).⁷ Whatever the “Star Wars” capabilities this technology may possess in the abstract, the thermal imaging device employed here intruded into nothing.

A. Subjective Expectation of Privacy

We reject Kyllo’s argument that what occurred late that January night was government intrusion into activities in his home, in which he expected privacy, rather than a measurement of heat emissions radiating from his home. While Elliott inferred, correctly as it turned out, from the unusually high levels of thermal emissions being radiated from the roof and wall that a marijuana grow was within Kyllo’s home, the Agema 210 did not literally or figuratively penetrate the walls of the Kyllo residence to expose this activity.

While Kyllo’s decision to move his marijuana-growing operation indoors may well show he had some subjective expectation of privacy in the operation, he took no affirmative action to conceal the waste heat emissions created by the heat lamps needed for a successful indoor grow. The Agema 210 scan simply indicated that seemingly anomalous waste heat was radiating from the outside surface of the home, much like a trained police dog would be used to indicate that an object was emitting the odor of illicit drugs. See United States v. Place, 462 U.S. 696, 706-07, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (holding canine sniffs are not searches). Kyllo made no attempt to conceal these emissions, demonstrating a lack of concern with the heat emitted and a lack of a subjective privacy expectation in the heat. See Robinson, 62 F.3d at 1328-29; Myers, 46 F.3d at 669-70; United States v. Ford, 34 F.3d 992, 995 (11th Cir.1994). But see Ishmael, 48 F.3d at 854-55 (finding subjective expectation of privacy although determining it was unreasonable). We conclude, like the district court, that the Agema 210’s scan measured waste heat emissions that Kyllo had made no attempt to conceal, rather than peering into Kyllo’s home, and that Kyllo has demonstrated no subjective expectation of privacy in these emissions from his home.

B. Objectively Reasonable Expectation

Even if Kyllo could demonstrate a subjective expectation of privacy in the heat emissions from his residence, he has not established that this privacy expectation would be accepted by society as “objectively reasonable.” “[T]he 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. 1735.

While a heightened privacy expectation in the home has been recognized for purposes of Fourth Amendment analysis, see Dow Chemical, 476 U.S. at 237 n. 4, 106 S.Ct. 1819, activities within a residence are not protected from outside, non-intrusive, government observation, simply because they are within the home or its curtilage. See Florida v. Riley, 488 U.S. 445, 449, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989) (plurality opinion); Ciraolo, 476 U.S. at 213, 106 S.Ct. 1809. The use of technology to enhance government surveillance does not necessarily turn permissible non-intrusive observation into impermissible search. See id.; Dow Chemical, 476 U.S. at 238-39, 106 S.Ct. 1819. Much like the Fifth Circuit, we believe that, in evaluating whether technology has been used to aid in permissible observation or to perform an impermissible warrantless search, the “crucial inquiry, as in any search and seizure analysis, is whether the technology reveals ‘intimate details.’” Ishmael, 48 F.3d at 855 (quoting Dow Chemical, 476 U.S. at 238, 106 S.Ct. 1819).

The thermal emission scan performed on Kyllo’s residence, and the other houses in the triplex, while giving information unavailable to the naked eye, did not expose any intimate details of Kyllo’s life. The scan merely indicated amorphous “hot spots” on the roof and exterior wall and not the detailed images of private activity that Kyllo suggests the technology could expose. “Such information is neither sensitive nor personal, nor does it reveal the specific activities within the ... home.” Ford, 34 F.3d at 997; see also Pinson, 24 F.3d at 1059. Like the Court in Dow Chemical, we reject Kyllo’s attempt to rely on “extravagant generalizations” about the potential invasions of privacy that this sort of advanced technology may someday present. See Dow Chemical, 476 U.S. at 239, 106 S.Ct. 1819.

Considering the facts of this case, and the district court’s findings on the technology used, we cannot conclude that this surveillance was “so revealing of intimate details as to raise constitutional concerns.” Id. While this technology may, in other circumstances, be or become advanced to the point that its use will step over the edge from permissible non-intrusive observation into impermissible warrantless search, we find no violation of the Fourth Amendment on these facts. See id. at 239 and n. 5, 106 S.Ct. 1819; Myers, 46 F.3d at 670 n. 1.

II. Omission of Divorce from the Affidavit

On remand, the district court concluded that it was misleading for Elliott to omit from his Affidavit seeking the search warrant that Kyllo and Luanne had divorced. The court then concluded, however, that the omission was not knowingly false, or made in reckless disregard for the truth. Kyllo contests this conclusion.

At the hearing, no evidence was presented that Elliott, or the Oregon law enforcement officers who passed on information to him, knew of the divorce. Neither was there evidence showing that the failure to discover the divorce and include it in the affidavit was reckless.

It was not clearly erroneous for the district court to find that the omission of the divorce was not knowingly false or made in reckless disregard for the truth. See Dozier, 844 F.2d at 705. Thus, we agree with the district court that it was proper for the magistrate judge to consider the portion of the affidavit related to Kyllo’s marriage to Luanne in determining whether probable cause existed to issue the warrant.

AFFIRMED.

2 . Conducting a thermal emissions scan at night is a common practice, as it decreases the likelihood that "solar loading” — daytime solar energy accumulation by an object — will interfere with the effectiveness of the scan.

3 . Like all objects, thermal imagers themselves emit some level of infrared radiation.

4 . Besides building scans such as the scan in question in this case, thermal imagers are used by law enforcement to aid in tasks including search and rescue, locating fugitives, perimeter security, and tracking covert illegal waste discharges. Commercial uses of thermal imagers include checks for moisture in roofs, overloading power lines, and faulty building insulation.

5 .See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

6 . We note that a previously filed disposition of this appeal was withdrawn.

7 . A Tenth Circuit panel opinion in United States v. Cusumano, 67 F.3d 1497, 1510 (10th Cir.1995) finding warrantless use of a thermal imager violated the Fourth Amendment was vacated by an en banc court, and the case decided without reaching the question. See United States v. Cusumano, 83 F.3d 1247 (10th Cir.1996) (en banc). We also note that the Montana Supreme Court's holding that thermal imaging in this context was a "search” was decided under a state constitutional provision, more protective of privacy than the federal constitution. See State v. Siegal, 281 Mont. 250, 934 P.2d 176, 183 (1997).