67 F.3d 1497 (10th Cir. 1995), 94-8056, United States v. Cusumano

Docket Nº:94-8056, 94-8057.
Citation:67 F.3d 1497
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Christopher Paul CUSUMANO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert William PORCO, Defendant-Appellant.
Case Date:October 04, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1497

67 F.3d 1497 (10th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,


Christopher Paul CUSUMANO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Robert William PORCO, Defendant-Appellant.

Nos. 94-8056, 94-8057.

United States Court of Appeals, Tenth Circuit

October 4, 1995

Rehearing Denied (Defendant's petition)

Dec. 5, 1995.

Rehearing Granted

(United States' petition)

Dec. 5, 1995.

Page 1498

Daniel G. Blythe of Rogers, Blythe & Lewis, Cheyenne, Wyoming, for Defendant-Appellant Cusumano.

Donald Horowitz, Hackensack, New Jersey (James W. Gusea of Gusea, Pattno & White, Cheyenne, Wyoming, with him on the brief), for Defendant-Appellant Porco.

William U. Hill, Assistant United States Attorney (David D. Freudenthal, United States Attorney, with him on the briefs), District of Wyoming, Cheyenne, Wyoming, for Plaintiff-Appellee.

Page 1499

Before HENRY and McKAY, Circuit Judges, and KANE, [*] Senior District Judge.

McKAY, Circuit Judge.

Mr. Robert Porco and Mr. Christopher Cusumano appeal their convictions for the manufacture of marijuana in violation of 21 U.S.C. Sec. 841(a)(1). There is no doubt that Messrs. Porco and Cusumano in fact performed the acts alleged in the indictment: they do not deny that the police, searching pursuant to a duly authorized warrant, discovered a sophisticated indoor marijuana cultivation operation in the basement of their home. Their misdeeds notwithstanding, the Defendants contend that this warrant was supported by data and opinions drawn from the results of a warrantless thermal scan of their home. The Defendants argue that the warrantless use of a thermal imager upon their home violated the Fourth Amendment of the Constitution; that, in the absence of the unconstitutionally obtained thermal data, probable cause to support the warrant was lacking; and that the evidence discovered during the search of their home should therefore be suppressed. The district court was not swayed by the Defendants' reasoning and denied the motion to suppress. The Defendants then entered a conditional plea of guilty that reserved their right to appeal the district court's decision on the motion to suppress. This appeal followed.

The parties do not dispute that the government, without seeking or obtaining a warrant, used a thermal imager to monitor the exterior of the Defendants' home and attached garage. 1 The imager revealed a large "hot spot" along one wall of the home's attached garage; the windows set into this wall were blocked from visual observation by a large camper shell leaning against the wall of the garage. The imager also identified an unusual number of "hot spots" along the roof and near the front door of the home. The district court found, and the government concedes, that the number and location of these "hot spots" strengthened the government's already existing suspicion that the Defendants were cultivating marijuana in their home.

Our analysis begins with the text of the Amendment: "The 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. The necessary interstices of the sweeping protection explicit in the constitutional text have been filled in by judicial interpretation. Modern Fourth Amendment jurisprudence begins, of course, with Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Abandoning earlier formulations of the Fourth Amendment, which had defined the ambit of Fourth Amendment protection by reference to the law of trespass, see, e.g., Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928); Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), Katz erected an analytic framework grounded in an individual's "reasonable expectations of privacy." Katz, 389 U.S. at 352, 359, 361, 88 S.Ct. at 511-12, 515-16, 516-17. The Katz inquiry has most commonly been stated in the terms employed by Justice Harlan in his Katz concurrence: has government action intruded upon interests in which an individual maintains a subjective expectation of privacy; if so, is that expectation one that society deems reasonable? See 389 U.S. at 360-62, 88 S.Ct. at 516-17 (Harlan, J., concurring). The Defendants seek to shroud their actions in the security expressly afforded the home by the constitutional text--a security that has been traditionally deemed both objectively and subjectively reasonable. The government, for its part, denies that the imager intrudes upon domestic privacy at all. It

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claims that the device merely records the emanation of "waste heat" from the exterior of a building; that no reasonable expectation of privacy, either objective or subjective, exists in this "waste heat"; that the technical imprecision of the device is such as to leave private that which transpires inside a home; and that the Constitution does not forbid the government from employing modern technology to glean incriminating data even from the most subtle of telltale signs.

This circuit has yet to address the constitutionality of the warrantless use of the thermal imager. Other courts that have analyzed this question have split. The Seventh and Eighth Circuits recently embraced the analysis set forth in United States v. Penny-Feeney, 773 F.Supp. 220 (D.Hawaii 1991), aff'd on other grounds, 984 F.2d 1053 (9th Cir.1993), holding that the use of an imager is not a search within the meaning of the Fourth Amendment. See 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). The Eleventh Circuit, in United States v. Ford, 34 F.3d 992 (11th Cir.1994), reached the same conclusion, albeit for slightly different reasons. The Fifth Circuit has rejected aspects of the Penny-Feeney and Ford frameworks, but, drawing upon the "open fields" doctrine, nonetheless has held that a thermal scan of a building outside the curtilage does not qualify as a Fourth Amendment search. See United States v. Ishmael, 48 F.3d 850 (5th Cir.1995). The Supreme Court of Washington, interpreting both the Fourth Amendment and the relevant sections of the Washington Constitution, has determined that the warrantless use of a thermal imager runs afoul of both constitutions. State v. Young, 123 Wash.2d 173, 867 P.2d 593 (1994).

A thermal imager operates by observing and recording the differential heat patterns radiating through the surface of a structure. Focusing upon this most basic aspect of the imager's operation, our fellow circuits have reduced the Fourth Amendment inquiry to an analysis of the reasonable expectations of privacy residing in this "waste heat." See Ishmael, 48 F.3d at 853-57; Ford, 34 F.3d at 995-97; Pinson, 24 F.3d at 1058-59; Penny-Feeney, 773 F.Supp. at 225-28. A number of justifications have been put forth to support the conclusion that no expectation of privacy, either objective or subjective, exists in "waste heat." The observation of "waste heat" has been analogized to the garbage search approved in California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); to the dog sniff found constitutional in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); to the pen register condoned by Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); and to the overhead surveillance flights upheld in California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), Dow Chem. Co. v. United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986), and Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989). It has been noted that the thermal imager is a passive device, employed from beyond the curtilage, which emits no rays or beams and which does not intrude in any fashion upon the observed property; that the resolution of the device is limited and that, in general, it detects only hot spots on the exterior surfaces of a building; that in many cases the machine measures heat which has been actively vented from a structure by a defendant; and that the machine only observes a phenomenon that could be watched by any member of the public equipped with a similar instrument (which is commercially available).

We concede that the analogies called upon by our fellow circuits are somewhat persuasive, if not altogether compelling. 2 We believe, however, that our fellow circuits have misframed the relevant Fourth Amendment inquiry and, in so doing, have asked, and answered, the wrong question. There is no question but that activities which take place within the sanctity of the home merit the most exacting Fourth Amendment protection. It is likewise undisputed that the illegal conduct which produced the heat detected by the thermal imager was performed within the four walls of the Defendants' home. 3 It must, finally, be acknowledged

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that the heat gradients measured by the imager radiated beyond the confines of the home. Is the link between the "waste heat" observed by the imager and the activities that gave rise to that heat so attenuated as to restrict the "expectation of privacy" analysis to the heat alone? We think not.

To focus upon the "waste heat" radiating from a structure is to ignore both the purpose of the device and the manner in which it operates. The imager measures not "waste heat" but rather heat differentials; it records heat gradients across the exterior surface of a building. The laws of thermodynamics inform us that the amount of heat radiated from a given section of the exterior wall is directly related to the amount of heat generated by heat sources in proximity to the interior of that wall. Activities...

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