United States v. Rohn Martin Ishmael and Debra K. Ishmael

48 F.3d 850
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 19, 1995
Docket94-40159
StatusPublished
Cited by55 cases

This text of 48 F.3d 850 (United States v. Rohn Martin Ishmael and Debra K. Ishmael) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rohn Martin Ishmael and Debra K. Ishmael, 48 F.3d 850 (5th Cir. 1995).

Opinion

'DeMOSS, Circuit-Judge:

Based on the readings from a thermal imager, along with, other circumstantial evidence, federal law enforcement officers obtained a warrant to search the premises of Rohn Martin Ishmael and his wife, Debra K. Ishmael. The officers executed the warrant and discovered some firearms and 770 marijuana plants. After being indicted, the Ish-maels moved to suppress the evidence on the ground that the warrantless use of the thermal imager was a constitutionally proscribed search. The district court granted the Ish-maels’ motion to suppress. We now reverse.

I.

The warrant in this case was based upon the following information: In the late summer of -1992, a confidential source informed Paul Black, a Drug Enforcement Administration (“DEA”) officer, that he/she had delivered numerous truck loads of concrete re-mix to the Ishmaels’ secluded, rural property in Nacogdoches .County, Texas. The- Ishmaels, according to the source, took inordinate measures to conceal the need for the concrete. Rohn Ishmael, for example, would manually mix the concrete near the source’s truck and then drive the concrete to another location on the property. His suspicions aroused, Black entered the property and saw two mobile homes and a trailer. Black, however, did not witness any illegal activity.

In August 1993, Black resumed his investigation. He and three other officers returned to the property and followed a roughly built road from the front of the property to a steep embankment where a large hole had been made. They observed around 60 empty bags of cement, a dump truck and a concrete re-mixer parked near the hole. The next day, Black investigated Rohn Ishmael’s criminal record and found at least four separate marijuana-related incidents dating back to 1974, several of which involved the cultivation of marijuana. Black, along with other DEA officers, then surveyed the Ishmaels’ property by air. They observed a mobile home and a-large steel building, separated by about 200 to 300 yards. The steel building stood next to a 2-acre pond. Black entered the property :on foot two more times. .He discovered that the Ishmaels had built a' structure beneath the steel building. The substructure was wired for electricity and was being fed water from the nearby pond by way of exposed rubber tubes and a water pump. The substructure also had an exhaust fan, which Black noticed was continuously running. Black also observed a nearby pallet containing 100 5-gallon plastic buckets.

Suspecting that the Ishmaels were cultivating marijuana in the structure beneath the steel building, the DEA boarded a helicopter with a thermal imager and flew over the Ishmaels’ property at approximately 500 to 1000 feet.. A thermal imager detects differences in surface temperature of targeted objects and displays' those differences through a viewfinder in varying shades of white and gray. In other words, a warm object will appear white on the device’s viewfinder, whereas a cool object will appear *852 gray. The device can record its readings on a standard videocassette. The DEA’s recording of the Ishmaels’ property showed that, although the water entering the substructure was noticeably cool, the water exiting it was emitting a substantial amount of heat. The recording additionally showed that the ground adjacent to the substructure was much warmer than the ground further from the substructure.

Black then subpoenaed the Ishmaels’ telephone records. The records indicated that the Ishmaels had made numerous calls to various horticulture shops, two of which appeared on a narcotics intelligence computer base as suppliers for other marijuana cultivators. Black also subpoenaed the Ishmaels’ electrical utility records. The records showed that the substructure’s-power usage was extremely high and far exceeded the mobile home’s power usage.

In September 1993, Black and several other officers again entered the Ishmaels’ property on foot. Using a hand-held- thermal imager, the officers canvassed the perimeter of the steel building-but never entered it. The officers made essentially the same findings; an unusual amount of heat was emanating from the • substructure and the ground adjacent to it. ' Black displayed his recordings to two DEA- thermographers, both of whom concluded that the Ishmaels were illegally cultivating marijuana in the steel building’s substructure. The DEA then used the thermal imager’s readings, along with the wealth of information gathered by Black, to obtain a warrant to search the steel building and its substructure on the Ishmaels’ property. The officers executed the warrant two days later and uncovered 770 marijuana plánts and several firearms. After being indicted in October 1993, the Ishmaels moved to suppress the evidence obtained pursuant to the search warrant. They argued that the readings from the thermal imager 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 in January 1994. See United States v. Ishmael, 843 F.Supp. 205 (E.D.Tex.1994). The court employed a burden-shifting analysis. The burden, it observed, initiated with the Ishmaels to demonstrate that they had a reasonable expectation of privacy. The court concluded that, although the steel structure was outside the curtilage of the home,' the Ishmaels nonetheless had exhibited a reasonable expectation of privacy. Id. at 209-12. Specifically, it noted that “the Ishmaels had a reasonable expectation that their effects, associated with the secreted metal building and the business being conducted there, were safe from [gjovernmental surveillance.” Id. at 211. Pointing to Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989), and California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), the government argued that the Ishmaels did not have a reasonable expectation • of privacy from the DEA’s air surveillances. The court rejected the government’s argument, reasoning that those cases were limited exclusively to naked-eye observations. Id. at 211-12.

According to the district court, the burden then shifted to the government to prove that its search fell within one of the several recognized exceptions to the warrant requirement. The government, relying on Dow Chemical Company v. United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986), argued below that the heat emissions were in “plain view.” The court rejected the “plain view” argument on the ground that the heat emissions would not be in plain view without the use of “sophisticated technology,” namely the thermal imager. Id. at 212. Alternatively, the government analogized the heat emissions to curb-side garbage (as in California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988)) and the scent of cocaine emanating from luggage (as in United States v. Place, 462 U.S. 696, 103 S.Ct.

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Bluebook (online)
48 F.3d 850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rohn-martin-ishmael-and-debra-k-ishmael-ca5-1995.