553 F.3d 1171 (8th Cir. 2009), 06-3903, United States v. Kattaria

Docket Nº:06-3903.
Citation:553 F.3d 1171
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Mohammed Ahmed KATTARIA, Defendant-Appellant.
Case Date:January 30, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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553 F.3d 1171 (8th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Mohammed Ahmed KATTARIA, Defendant-Appellant.

No. 06-3903.

United States Court of Appeals, Eighth Circuit.

January 30, 2009

Submitted: April 16, 2008.

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[Copyrighted Material Omitted]

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Shana Gail Buchanan, argued, Gary R. Bryant-Wolf, on the brief, Minneapolis, MN, for appellant.

Thomas More Hollenhorst, AUSA, argued, Minneapolis, MN, for appellee.

Before LOKEN, Chief Judge, JOHN R. GIBSON, WOLLMAN, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, en banc.

PER CURIAM.

A state court search warrant authorized aerial use of a thermal imaging device to detect excess heat emanating from a home owned by Mohammed Kattaria. When the thermal imaging results were consistent with an indoor marijuana grow operation, police obtained and executed three warrants to enter and search homes owned by Kattaria. The searches uncovered 548 marijuana plants, bags of harvested marijuana, and other incriminating evidence. Kattaria was charged in a nine-count superseding indictment. After the district court 1 denied motions to suppress and for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), Kattaria conditionally pleaded guilty to one conspiracy count charging that he manufactured, distributed, and possessed with intent to distribute fifty or more marijuana plants in violation of 21 U.S.C. § § 841(a)(1), (b)(1)(C), and 846.

Kattaria appealed, and a panel of this court affirmed. United States v. Kattaria, 503 F.3d 703 (8th Cir.2007). Applying the Supreme Court's ruling that investigative thermal imaging of a residence is a " search" for Fourth Amendment purposes, Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the panel upheld the thermal imaging warrant on alternative grounds: (i) it was supported by a lower quantum of evidence that should be required to establish probable cause to conduct this type of search, and (ii) the thermal imaging warrant and the

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subsequent warrants to enter and search Kattaria's residences were supported by the quantum of probable cause typically required for criminal investigations. The panel also concluded that the denial of Kattaria's request for a Franks hearing was an issue not preserved for appeal.

Kattaria petitioned for rehearing en banc, arguing that the panel's first reason for upholding the thermal imaging warrant was contrary to Kyllo and a decision of the Ninth Circuit applying Kyllo. See United States v. Huggins, 299 F.3d 1039, 1044 & n. 5 (9th Cir.), cert. denied, 537 U.S. 1079, 123 S.Ct. 681, 154 L.Ed.2d 579 (2002). The government responded that this part of the panel opinion was dicta that need not be reviewed. We granted rehearing en banc and now conclude that all four warrants were supported by traditional probable cause and, alternatively, that the evidence obtained by executing those warrants may not be suppressed under the good-faith exception to the exclusionary rule adopted in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We further conclude that a Franks hearing was properly denied and therefore affirm without considering the panel's alternative ground for upholding the thermal imaging warrant.

I. Probable Cause for the Warrant Searches.

On May 6, 2004, Special Agent Michael Perry of the Minnesota Bureau of Criminal Apprehension applied to Ramsey County District Court for a warrant to search the residence located at 1814 Malvern Street in Lauderdale, Minnesota. Perry's affidavit stated that the search would be for a single type of " property" -" An excess amount of heat emitting from the residence and garage relative to comparable structure[s] in the same neighborhood" -and would be conducted at night in a specified manner:

Your Affiant[ ] will utilize the Minnesota State Patrol and their aircraft mounted thermal imagery unit on the residence located at 1814 Malvern Street, and any out buildings to include the garage.... Your Affiant will utilize Captain Mark Dunaski of the Minnesota State Patrol, who has been trained and certified by the Drug Enforcement Administration [and] has used thermal imagery equipment for eleven years in the course of his law enforcement duties, including the detection of indoor marijuana growing operations.

In support of the application, Perry averred that in March 2004 a cooperating defendant (CD) reported that Kattaria was an indoor marijuana grower. The affidavit further recited: the CD had known Kattaria for about ten years, occasionally smoked marijuana with Kattaria, and knew Kattaria " has had a lot of trouble with police in the past." The CD had visited the 1814 Malvern residence in 2002, when Kattaria showed the CD an indoor marijuana grow operation in the basement and offered to rent the residence to the CD. The CD identified Kattaria from a driver's license photo. A criminal history check by Perry revealed a 1997 arrest and conviction for possession and sale of marijuana and amphetamine and possession of a firearm, a 2000 arrest for sale of marijuana, and a 2003 arrest for fleeing a police officer. The affidavit then set forth the results of Perry's review of utility company records: between November 2003 and April 2004, the residence at 1814 Malvern consumed between 1890 and 2213 kilowatt hours of electricity per month, while neighboring residences of comparable size consumed between 63 and 811 kilowatt hours in the same time period. Perry averred that he had driven past the residence numerous times, observing drawn blinds and no electrical items that would explain the

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extremely high electric power consumption.

A state district court judge issued a warrant authorizing a nighttime search for a comparatively excessive amount of heat emitting from the residence. The warrant was executed by an aerial search the night of May 7, using a forward looking infrared device. See generally United States v. Olson, 21 F.3d 847, 848 n. 3 (8th Cir.), cert. denied, 513 U.S. 888, 115 S.Ct. 230, 130 L.Ed.2d 155 (1994). Agent Perry then applied to Ramsey County District Court for warrants to conduct physical searches at 1814 Malvern and at a Falcon Heights property also owned by Kattaria. In addition, a Lino Lakes police investigator applied to Anoka County District Court for a warrant to conduct a physical search at a Lino Lakes residence owned by Kattaria, based upon Agent Perry's investigation. In these subsequent applications, Perry averred that Captain Dunaski reported a heat-loss pattern from 1814 Malvern that was unlike neighboring houses, resembled other indoor marijuana grow operations, and suggested a grow operation likely located in the basement, as the CD had reported. The supporting affidavits also set forth the facts contained in Perry's initial affidavit; additional facts tending to confirm the CD's reliability and describing Kattaria's 1997 drug distribution conviction; a comparison of Kattaria's meager wage-earning history with expenses incurred in purchasing multiple residences; and data showing high electric power consumption at the Lino Lakes residence, contrasted with a report from a concerned citizen that no one appeared to have been living at that residence for over two years. Three search warrants issued and were executed, yielding the evidence of substantial marijuana trafficking that Kattaria seeks to suppress.

On appeal, Kattaria attacks all four warrants, but he focuses on the thermal imaging warrant because the later three warrants were supported by a considerably greater showing of probable cause, including the results of the thermal imaging. He asserts that the district court erred in concluding that the first warrant was supported by probable cause because Perry's affidavit contained no statement as to the CD's reliability, the CD's observation of a grow operation in Kattaria's basement in 2002 was uncorroborated and stale, and the affidavit inaccurately recited that Kattaria's 1997 conviction included possession of a firearm. He argues that the results of this unconstitutional thermal imaging search may not be used to validate the later search warrants. When stale information, inaccurate information, and information from an unreliable informant are removed, he contends, there was no probable cause to support any of the four warrants.

We conclude that the initial thermal imaging search was supported by traditional probable cause, that is, a " fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Whether a search warrant is supported by probable cause is determined by the totality of the circumstances; " resolution of the question by an issuing judge ‘ should be paid great deference by reviewing courts.’ " United States v. Grant, 490 F.3d 627, 631 (8th Cir.2007), cert. denied, __ U.S. __, 128 S.Ct. 1704, 170 L.Ed.2d 516 (2008), quoting Gates, 462 U.S. at 236, 103 S.Ct. 2317. The duty of a reviewing court " is to ensure that the issuing judge had a ‘ substantial basis' for concluding that probable cause existed." United States v. LaMorie, 100 F.3d 547, 552 (8th Cir.1996), quoting Gates, 462 U.S. at 238-39, 103 S.Ct. 2317. We review the district court's fact findings for clear error and the ultimate question whether the Fourth Amendment has been

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violated de novo. United States v. Allen, 297 F.3d 790, 794 (8th Cir.2002).

In arguing that the state court judge lacked probable cause, Kattaria emphasizes that Agent...

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