UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. DANNY LEE KYLLO, Defendant-Appellant.
No. 96-30333
UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
190 F.3d 1041; 1999 U.S. App. LEXIS 21562; 99 Cal.
Daily Op. Service 7456; 99 Daily Journal DAR 9419
November 5, 1997, Argued and Submitted, Portland, Oregon; April 7,
1998, Opinion Filed; May 20, 1998, Petition for Rehearing with
Suggestion for Rehearing En Banc filed; January 12, 1999, Petition
for Panel Rehearing Granted; July 29, 1999, Opinion Withdrawn
September 9, 1999, Filed
Appeal from the
United States District Court for the District of Oregon. D.C. No.
CR-92-00051-1-HJF. Helen J. Frye, District Judge, Presiding.
JUDGES: Before: Melvin
Brunetti, n1 John T. Noonan, and Michael Daly Hawkins, Circuit
Judges. Opinion by Judge Hawkins; Dissent by Judge Noonan.
n1 Judge Brunetti has been drawn to replace the Honorable Robert R.
Merhige, Jr., Senior United States District Judge for the Eastern
District of Virginia, in this case.
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
reliance 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. ß 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"). n2 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.
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n2 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.
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In performing its function the Agema 210 passively records thermal
emissions rather than sending out intrusive beams or rays - acting
much like a camera. n3 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. n4
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n3 Like all objects, thermal imagers themselves emit some level of
infrared radiation.
n4 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.
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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
warrantless 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. 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 evidentiary
hearing on the intrusiveness and capabilities of the Agema 210. .
..
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.
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. Kyllo now challenges this
decision.
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. 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, 19 L. Ed. 2d 576, 88 S. Ct. 507 (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 (Harlan, J.,
concurring); see also Smith v. Maryland, 442 U.S. 735, 740,
61 L. Ed. 2d 220, 99 S. Ct. 2577 (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.
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.
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.
Kyllo 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. n7 Whatever the "Star Wars" capabilities this
technology may possess in the abstract, the thermal imaging device
employed here intruded into nothing.
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n7 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 (Mont. 1997).
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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. 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. 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." "The correct inquiry is whether the government's
intrusion infringes upon the personal and societal values protected
by the Fourth Amendment."
While a heightened privacy expectation in
the home has been recognized for purposes of Fourth Amendment
analysis, activities within a residence are not protected from
outside, non-intrusive, government
observation, simply because they are within the home or its
curtilage. The use of technology to enhance government surveillance
does not necessarily turn permissible non-intrusive observation into
impermissible search. 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.'".
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.
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.
[On the issue of the ommission of the divorce from the affidavit,
the court concluded 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.
NOONAN, Circuit Judge, dissenting:
The Thermovision 210, made and marketed by Agema Infrared Systems,
(herein the Agema 210) is described by its maker in the following
terms: "For law enforcement agencies and security organizations it
provides a state-of-the-art means of extending operational
capabilities and securing hard evidence not possible before. And it
does it unobtrusively, noiselessly and immediately, requiring a
minimum of operator training and effort." As to "Interior
Surveillance," the company's sales brochure that is part of the
record on appeal states: "With a field view of 8 degrees by 16
degrees, the 210, properly positioned, can monitor activity in
critical rooms or large facilities,
once again providing a permanent time-tagged record when connected to
a VCR."
The Agema 210 does not determine temperature but depends for its
results on a comparison between the emissions from similar
structures. It is not evident how these comparisons are reliable when
the operator of the Agema 210 has no information about the interior
insulation of either the structure he is examining or the structure
he is using for comparison. The reliability of the readings of the
machine is itself affected by the operator's decision
to adjust it. The defendant's expert
witness, who had had extensive experience working for the FBI,
analyzed its vulnerability in these terms: "These infrared cameras
can easily be manipulated to make a structure appear to be hot, when
in reality it is not. This is achieved by increasing the gain and
sensitivity buttons on the camera. The procedure is similar to using
a 35 mm camera and manually opening the aperture on the lens." It is
this manipulable, not very accurate or reliable but easily usable,
surveillance machine which is at issue here.
The Fourth Amendment forbids an unreasonable search by the
government. A search has been authoritatively defined as occurring
"'when an expectation of privacy that society is prepared to consider
reasonable is infringed.'" A court's attention is directed to the
"expectation of privacy" and society's view of the reasonableness of
the expectation.
I start with the proposition that "the
sanctity of the home is not to be disputed." A search "inside a home
without a warrant" is "presumptively unreasonable absent exigent
circumstances." At the same time the Fourth Amendment "protects
people, not places." As a consequence of this axiom, a forbidden
search can occur even when no trespass is involved. It is, therefore,
not helpful to the government that the Agema reaches into the
interior only by inference. An invasion of property is not necessary
to trigger the protection of the Amendment.
I have no doubt that Kyllo did have an expectation of privacy as to
what was going on in the interior of his house and that this
expectation was infringed by the government's use of the Agema 210
although the machine itself never penetrated into the interior. The
closest analogy is use of a telescope that, unknown to the homeowner,
is able from a distance to see into his or her
[house and report what he or she is
reading or writing. Such an enhancement of normal vision by
technology, permitting the government to discern what is going on in
the home, violates the Fourth Amendment. No principled difference
exists between a machine capable of reading reflections of light that
a telescope picks up and a machine reading the emissions of heat as
does the Agema. In each case the amplification of the senses by
technology defeats the homeowner's expectation of privacy. The
government is not entitled to defeat this expectation by
technological means.
The court holds that the Agema 210 merely reads emissions off the
roof. The court notes, reasonably enough, that there is no evidence
that Kyllo had any expectation of privacy as to these emissions. The
emissions have been treated as waste energy, comparable to the waste
disposed of as garbage that the government is entitled to inspect
without violating the Constitution.
This analogy fails because, unlike garbage which is purposely
discarded, emissions of heat occur without conscious attention by the
homeowner. It is strange to focus on the homeowner's non-existent
expectation as to emissions. The homeowner's expectation is directed
to the privacy of the interior of his home. It is that expectation
which the Fourth Amendment is intended to protect.
On behalf of the government, two other analogies need to be
considered. If Kyllo started a fire in his fireplace there is no
doubt the government could use the
smoke rising from his chimney as a basis for securing a warrant if a
fire in the house suggested the commission of a crime. If Kyllo was
operating a methamphetamine laboratory in his home and the smell
reached the nose of a policeman on the street, there would be
probable cause to seek a warrant. The trouble with these two
analogies is that they both depend on unaided human senses reading
the signs from the house. In each the homeowner has no reasonable
expectation that the signs will not be observed. Our case involves
amplification of the senses by technology. That kind of amplification
is critical as it defeats the homeowner's expectation. It is the
effect on this expectation that makes the amplification
impermissible.
Given that Kyllo does have an expectation of privacy as to the
interior of his home, is society prepared to view it as reasonable?
Here is the point at which the protection of the Fourth Amendment is
in tension with the social desirability of suppressing crime wherever
it is found. The Fourth Amendment is not intended to make the home a
sanctuary for the commission of crime with
impunity. It is intended to allow
governmental intrusion into the home only in exigent circumstances or
upon judicial approval of the intrusion. A different rule might be
fashioned, but the present rule is that even a search to find
probable cause for obtaining a warrant - even such a search which has
as its object the ultimate obtaining of a magistrate's approval -
cannot be conducted without violation of the Fourth Amendment.
Society has determined that it is reasonable for the home to be a
citadel safe from warrantless inspection.
It is argued that the several decisions by circuit courts already
cited show society's disapproval of the expectation of privacy as to
emission of heat. There are, however, cases in the contrary
direction. Two state cases within this circuithave found thermal
imaging to violate state constitutions. Two courts have held it
violative of the Fourth Amendment. In
the end what society is prepared to find reasonable must, for us, be
determined by the most relevant analyses and analogies. To conclude
that because this court holds the expectation unreasonable it is
unreasonable is to argue in a circle.
The only Court of Appeals to consider this question and determine
that the use of thermal imaging is unconstitutional was the Tenth
Circuit in United States v. Cusumano, 67 F.3d 1497 (10th
Cir. 1995). The opinion was vacated on rehearing en banc on the
ground that the court did not need to reach the thermal imaging
question. Consequently, the decision does not have more than a
hypothetical character, but it has been
praised as "the most exhaustive and
compelling analysis of the use of a thermal imager." Professor LaFave
himself argues forcefully in support of the analysis and conclusion.
The expectation analyzed by Cusumano and LaFave is not the
expectation of the homeowner as to the
emissions from the roof, but the homeowner's expectation as to the
privacy of the interior of the home. That the interior is the proper
focus is argued by analogy with Katz - in Katz the
focus having been on the phone conversation, not on "the molecular
vibrations of the glass that encompassed [the] interior,"
which were the vibrations actually picked up by the bug.
Technological enhancement that reveals conversation is
impermissible.
The first reaction when one hears of the Agema 210 is to think of
George Orwell's 1984. Although the dread date has passed, no
one wants to live in a world of Orwellian surveillance. On the
hearing of this case on its first appeal we were prompt to express
concern as to whether the Agema 210 could "detect sexual activity in
the bedroom," and to state that a technology revealing sexual
activity was impermissible. On this appeal the majority does not
deviate from this position while it views the Orwellian dangers as
speculative and at most potential.
The Agema 210 is a crude instrument. It
reveals only two things: Heat-causing activity within a home and the
rooms or area where the heat is being generated. For the majority
these limited capacities let the Agema 210 pass muster: The "crucial
inquiry" for the majority is whether the Agema 210 reveals "intimate
details." Because what it reveals is not sensitive or personal or a
specific activity, no unconstitutional search is being performed. It
is as though if your home was searched by a blind policeman you would
have suffered no constitutional deprivation.
The majority's error has been to focus on a phrase from dicta on
Dow Chemical Co. v. United States, 476 U.S. 227 (1986). At
issue in Dow Chemical was aerial photography of a 2,000 acre
manufacturing plant. The Court held: "We conclude that the open areas
of an industrial plant complex with numerous plant structures spread
over an area of 2,000 acres are not analogous to the 'curtilage' of a
dwelling for purposes of aerial surveillance." In reaching this
conclusion, the Court observed: "It may well be, as the Government
concedes, that surveillance of private
property by using highly sophisticated surveillance equipment not
generally available to the public, such as satellite technology,
might be constitutionally proscribed absent a warrant. But the
photographs here are not so revealing of intimate details as to raise
constitutional concerns." To rely on the phrase "intimate details" as
stating the criterion is to wrench the phrase from context. Dow
Chemical was not about a home, an enclosed space or anything
going on in a home. If Dow Chemical is to be invoked at all,
the dicta on intimate details is controlled by the dicta warning on
the use of "highly sophisticated surveillance equipment not generally
available to the public." Because of its error as to the crucial
inquiry, the majority sees the dangers presented by the Agema 210 as
merely potential, not actual. To the contrary, the intrusion into the
home, while gross and global, is also real. A variety of
heat-producing activities can take place within the walls of a home.
As to such of these activities as are innocent, no one doubts that
society views the expectation of privacy as reasonable - for example,
the use of a sauna in a sauna room; the
making of ceramics in a kiln in the basement; the hothouse
cultivation of orchids, poinsettas or other plants in a domestic
greenhouse. Any of such activities can cause the emission of heat
from the home which the Agema 210 can detect. The activity will be
reported as well as where it is
taking place. That is the present, not potential, intrusion of
privacy which the Agema 210 can effect.
The defense of the machine that it does not see very well hurts the
government by underscoring the unreliability of the Agema 210. This
defense amounts to saying that if a constable makes a blundering
search, it should not really count as a search. The argument is the
opposite of that which justified the examinations in United
States v. Place, 462 U.S. 696 (1983), and Jacobsen, 466
U.S. at 123, - they revealed only contraband and nothing else. The
machine as blind or blundering constable does not pass the criteria
of the Fourth Amendment.
The government does not contend that the information provided the
magistrate was sufficient to sustain a search warrant without the
addition of the Agema readings. As these
readings violated the Constitution, they should be suppressed and the
conviction reversed.