571 F.2d 508 (9th Cir. 1978), 77-1513, United States v. Kilgus
|Docket Nº:||77-1513, 77-1568 and 76-3699.|
|Citation:||571 F.2d 508|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Christopher Russell KILGUS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Thomas CASO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Lee BECK, Defendant-Appellant.|
|Case Date:||March 20, 1978|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
William L. Osterhoudt (argued) of Singer & Osterhoudt, Michael H. Metzger (argued), San Francisco, Cal., for defendant-appellant.
J. Stephen Czuleger, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before BROWNING and ANDERSON, Circuit Judges, and NIELSEN, [*] District Judge.
Appellants were convicted by the district court below of illegal importation of marijuana (Count II) and possessing marijuana with the intent to distribute (Count IV) (21 U.S.C. §§ 952, 960, 963, 841(a)(1), and 18 U.S.C. § 2). We reverse appellants' convictions because the only substantial evidence which connects them with the crime (a "unique identification" of their aircraft by a Customs Officer using a Forward Looking Infrared system (FLIR)) was inadmissible. 1
THE FLIR SYSTEM
Briefly, the FLIR is a relatively new system developed by the military for the detection and tracking of targets through the use of infrared light rays. The system scans an area much the same as radar and utilizes an array of infrared detectors (the type, number, and effectiveness of each being a military secret). Infrared rays are picked up by these detectors, electronically processed, and shown as a visual image on a 6 X 81/2 screen very similar to a black and white TV screen. The image on the screen appears in black, white and grey contrasts. That is, objects which are hotter than their background appear white and objects colder than their background appear black (or vice versa, since the "mode" of the system can be reversed to give the image a reversed effect analogous to a photograph negative).
There is no question that the FLIR can be used for generic identification of objects, i. e., that it can readily be used to distinguish between a plane and a boat, or even between a Lear jet and a DC-3. At issue here, however, is whether the...
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