U.S. v. Robinson

• Decision Date: 31 August 1995
• Docket Number: Nos. 92-6951,92-6991,s. 92-6951
• Citation: 62 F.3d 1325
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Theodore ROBINSON, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1325

62 F.3d 1325

UNITED STATES of America, Plaintiff-Appellee, v. Theodore ROBINSON, Sr., Defendant-Appellant.

Nos. 92-6951, 92-6991.

United States Court of Appeals Eleventh Circuit.

Aug. 31, 1995.

Habib Yazdtchi, Montgomery, AL, for Theodore Robinson, Sr.

Redding Pitt, U.S. Atty., Terry F. Moorer, Asst. U.S. Atty., Montgomery, AL, for appellee in No. 92-6951.

James E. Wilson, U.S. Atty., Terry F. Moorer, Asst. U.S. Atty., Montgomery, AL, for appellee in No. 92-6991.

Appeals from the United States District Court for the Middle District of Alabama.

Before EDMONDSON and BIRCH, Circuit Judges, and HILL, Senior Circuit Judge.

BIRCH, Circuit Judge:

In this appeal, we decide whether aerial surveillance of an occupied, private residence with infrared thermal detection as an indication that marijuana is being cultivated inside is an unconstitutional search. The district court denied defendant's suppression motion. We AFFIRM.

I. BACKGROUND

In December, 1991, a Drug Enforcement Administration agent informed Agent Charles West of the Narcotics Division of the Alabama Department of Public Safety that thirty high-pressure, sodium lights had been shipped from California to defendant-appellant Theodore Robinson, Sr.'s address in Tuskegee, Alabama. Agent West knew that such lights commonly are used by private individuals for growing marijuana indoors. ¹ His investigation revealed that Robinson had ordered similar lights and hydroponic equipment in 1989 and 1990.

Additionally, subpoenaed utility records showed that Robinson's average kilowatt consumption of 5,570 hours and average utility statement of $410.89 for the months of June, July and August, 1991, had increased to nearly 10,000 kilowatt hours for December, 1991, and a utility statement of $562.00. Houses approximately the size of Robinson's generated monthly power statements between $130.00 and $150.00. Agent West's investigation of Robinson's financial status showed that Robinson owned an attractive house of approximately 2,800 square feet with a swimming pool and a nearby lot containing a new, prefabricated metal building. Although Robinson paid for the high-pressure, sodium lights with a cashier's check in excess of $7,000.00, Agent West found that the Alabama Department of Revenue had no record of Robinson's having filed income tax returns.

After collecting this information, Agent West directed a helicopter crew to conduct a Forward Looking Infrared Receiver ("FLIR"), thermal imaging examination ² to compare the heat emanating from Robinson's house with the intensity of the heat from surrounding objects. Robinson's home was considerably warmer than surrounding houses. Listing his investigatory findings, Agent West applied for a search warrant of Robinson's home. On January 31, 1992, Agent West and others executed the search warrant and found a major, indoor marijuana growing operation. ³ Two revolvers, a shotgun, and a rifle also were found near the marijuana cultivation in Robinson's house.

A two-count indictment in the Middle District of Alabama charged Robinson with the manufacture and possession of marijuana with intent to distribute and with possession of firearms in connection with a drug trafficking crime. Robinson moved to suppress the marijuana seized from his home pursuant to the search warrant. Following a suppression hearing, the district court denied his motion. Robinson then pled guilty and was sentenced to serve 130 months of imprisonment followed by seven years of supervised release. On appeal, he contends that the FLIR search of his house constituted an illegal search under the Fourth Amendment, and that there were insufficient facts for probable cause to issue the warrant to search his house.

II. DISCUSSION

Decisions on motions to suppress involve mixed questions of fact and law; "we review the district court's factual findings for clear error, and its application of the law to the facts de novo." United States v. Hromada, 49 F.3d 685, 688 (11th Cir.1995). Additionally, we construe all facts in favor of the prevailing party. Id. Robinson first argues that the warrantless FLIR surveillance of his occupied home violated his Fourth Amendment rights.

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. In United States v. Ford, 34 F.3d 992 (11th Cir.1994), we held that the ground surveillance of an unoccupied mobile home on leased land with a thermal infrared heat detector did not violate the Fourth Amendment. Three other circuits also have concluded that thermal infrared surveillance or FLIR is not an unconstitutional search. United States v. Ishmael, 48 F.3d 850 (5th Cir.1995); United States v. Myers, 46 F.3d 668 (7th Cir.1995); United States v. Pinson, 24 F.3d 1056 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 664, 130 L.Ed.2d 598 (1994). Robinson argues that this case is distinguished from Ford because it involves an occupied home, which specifically implicates the Fourth Amendment. As we explain, our Ford analysis also applies to the aerial FLIR surveillance of Robinson's home.

In Ford, we recognized that a party alleging an unconstitutional search under the Fourth Amendment must establish both a subjective and an objective expectation of privacy to succeed. Ford, 34 F.3d at 995 (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). The subjective component requires that a person exhibit an actual expectation of privacy, while the objective component requires that " 'the [privacy] expectation be one that society is prepared to recognize as "reasonable." ' " Id. (quoting Katz, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring)). Thus, we must determine whether Robinson had a subjective expectation of privacy that society would recognize as objectively reasonable.

Our conclusion in Ford that the defendant-appellant held no subjective expectation of privacy turned on his purposefully venting the heat from his marijuana cultivation inside the mobile home with an electric blower through holes drilled in the floor. Id. In contrast to Ford, Robinson did not vent the heat from his marijuana growing operation or deliberately assist the emission of heat in any way. Consequently, we must decide in this case whether inaction can be as revealing regarding the subjective expectation of privacy as action.

The focal issue is whether Robinson had a subjective expectation of privacy in the heat generated by his indoor marijuana cultivation. ⁴ We find none. While Robinson attempted to conceal his marijuana growing operation by conducting it inside his home, the record does not indicate that he affirmatively took any action to prevent the resulting heat from being emitted into the atmosphere above his house. The record shows no consideration for the emitted heat whatsoever until his indictment and knowledge of the FLIR surveillance, which measured solely heat expelled into the atmosphere from Robinson's home. Robinson's inaction regarding the heat generated from his marijuana cultivation demonstrates his lack of concern for it. Thus, we conclude that Robinson has not established a subjective expectation of privacy in this heat emitted from his home.

Even if Robinson had demonstrated a subjective expectation of privacy in the heat emitted from his home, he also would have to establish the objective component of the Katz two-part test. Under the objective prong, the proper inquiry is whether the " 'government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment.' " Ford, 34 F.3d at 996 (quoting Oliver v. United States, 466 U.S. 170, 182-83, 104 S.Ct. 1735, 1743, 80 L.Ed.2d 214 (1984)). Therefore, Robinson would have to demonstrate that his privacy expectation in the heat rising from his house would be accepted by society as objectively reasonable.

In validating the visual inspection of a greenhouse where marijuana was being cultivated within the curtilage of a house, the Supreme Court found that "no intimate details connected with the use of the home or curtilage were observed" during the aerial viewing. Florida v. Riley, 488 U.S. 445, 452, 109 S.Ct. 693, 697, 102 L.Ed.2d 835 (1989) (emphasis added). FLIR surveillance cannot measure temperature; it "merely compare[s] the amount of heat radiated from various objects." Pinson, 24 F.3d at 1057. "[T]he mere fact that the police have employed relatively sophisticated forms of technological surveillance does not render the surveillance unconstitutional.... The crucial inquiry, as in any search and seizure analysis, is whether the technology reveals 'intimate details.' " ⁵ Ishmael, 48 F.3d at 855-56 (footnote omitted) (citation omitted) (quoting Dow Chemical Co. v. United States, 476 U.S. 227, 238, 106 S.Ct. 1819, 1827, 90 L.Ed.2d 226 (1986)); accord Ford, 34 F.3d at 996; Pinson, 24 F.3d at 1059.

In this case, the FLIR surveillance revealed only that Robinson's house emitted significantly more heat than others in the neighborhood of similar size. No revelation of intimate, even definitive, detail within the house was detectable; there was merely a gross, nondiscrete bright image indicating the heat emitted from the residence. ⁶ Such heat detection with thermal imagery is not the "functional equivalent of an X-ray machine in that it allows officers to 'see' within a structure what it otherwise cannot see with the naked eye." Ishmael, 48 F.3d at 856.

Moreover, there was no intrusion whatsoever into Robinson's home because the emitted heat rose from his house and then was measured by the FLIR surveillance. ⁷ See id. (holding that the "manner " of detecting heat is "significant in assessing the reasonableness of the intrusion"). Using infrared surveillance to ascertain heat intensity is analogous to the warrantless use...