US v. Penny-Feeney

• Decision Date: 14 August 1991
• Docket Number: 91-00008 ACK-02.,Crim. No. 91-00008 ACK-01
• Citation: 773 F. Supp. 220
• Parties: UNITED STATES of America, Plaintiff, v. Janice M. PENNY-FEENEY, Sean Feeney, Defendants.
• Court: U.S. District Court — District of Hawaii

773 F. Supp. 220

UNITED STATES of America, Plaintiff, v. Janice M. PENNY-FEENEY, Sean Feeney, Defendants.

Crim. Nos. 91-00008 ACK-01, 91-00008 ACK-02.

United States District Court, D. Hawaii.

August 14, 1991.

Daniel A. Bent, U.S. Atty. by Marshall H. Silverberg, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff.

Alexander Silvert, Federal Public Defender's Office, Honolulu, Hawaii, for defendant Janice M. Penny-Feeney.

Thomas P. Dunn, Honolulu, Hawaii, for defendant Sean Feeney.

DECISION AND ORDER DENYING DEFENDANTS' MOTION TO SUPPRESS PHYSICAL EVIDENCE

PENCE, Senior District Judge.

I. INTRODUCTION

Defendants Janice Penny-Feeney and Sean Feeney were indicted on January 9, 1991 on three Counts involving Federal drug and firearm violations. The indictment stemmed from an investigation which lasted approximately two years and culminated in a raid on defendants' home on April 3, 1990. Defendants now move to suppress all physical evidence which was seized pursuant to a state search warrant authorizing the April 3, 1990 search. In addition, defendants request the suppression of physical evidence found in a mail package, addressed to defendant Penny-Feeney, which was seized and opened on September 8, 1989 pursuant to a federal search warrant.

II. BACKGROUND

A. Elements of Probable Cause

On April 3, 1990, Officer Hyland Char of the Kona Vice Section of the Hawaii County Police Department swore to an affidavit he prepared in which he set forth his belief that there existed probable cause to search the residence occupied by Janice Penny-Feeney and Sean Feeney. The following represents the elements of probable cause enumerated in Officer Char's affidavit.

1. The 1988 Anonymous Female Informant

According to an anonymous female informant, who made a series of four telephone calls to the "Crime Stoppers" police telephone reporting service in the fall of 1988, Jan Penny¹ had sold drugs in California before moving to Hawaii. The informant also indicated that Jan Penny was still selling marijuana while living in Hawaii and that she was doing so with a man named Anthony Vicar.

On September 8, 1989, based on this information, law enforcement officers obtained a search warrant to search a package sent from California to Jan Penny.² The package was in the shape of a container which appeared to have currency inside of it. The execution of the search warrant revealed $2700 in cash inside of the container. The cash was then exposed to a narcotics-trained dog named "Ganz" who gave a positive alert on the money. Jan Penny subsequently picked up the package containing the cash and took it to her house while being observed by law enforcement officers. No charges were ever filed.

2. The March 9, 1990 Anonymous Male Informant

On March 9, 1990, an anonymous male informant, who claimed to be a relative of Jan Penny, stated that Jan Penny had been growing marijuana for about three years at her residence in Waikoloa. He explained that the Waikoloa residence contained a large indoor marijuana-growing operation that was run on a continuous basis since its plants were being harvested and trimmed every six weeks.

He further stated that in one room there were seedlings and that in another room there were more mature plants. Finally, he described a drip irrigation system used to water the plants as well as large grow lights, air conditioning, and ventilation fans all used to cultivate the plants.

3. The March 12, 1990 Known Male Informant

On March 12, 1990 Officer Hyland Char of the Kona Police Department, Vice Section, met with a known male informant who previously had been involved in growing marijuana plants and who had also consumed marijuana. That person told Officer Char that he had personally visited Jan Penny's residence on Pa'akea Street in Waikoloa in December 1989 and had seen there a continuous marijuana growing operation. He described the house as reddish brown in color. The informant told Officer Char that Penny had recently married Sean Feeney and he described Feeney as being approximately thirty years old, 5'11" to 6'0 in height, 190 pounds, with brown hair. Jan Penny was described by the informant as being in her mid-thirties, 5'8", in height, 125 pounds, with blonde hair and blue eyes. He added that Penny operated a blue 1990 Mercury Cougar. The informant then described Penny's marijuana growing operation in great detail.³

The informant further told Officer Char that to his knowledge Jan Penny was unemployed and that her present husband, Sean Feeney, was a self-employed carpenter. The informant was under the impression that Sean Feeney's business was not doing very well and that his wife supported him using her drug profits. More specifically, the informant related that Penny was paying between $1100 and $1200 a month for the house in which she and Feeney were living and growing marijuana and that she had recently purchased a brand-new 1990 Mercury Cougar for herself and a brand-new 1990 Ford pick-up truck for her husband. The latter vehicle was alleged to have been purchased with marijuana profits.

Finally, the informant described two of Penny's "close associates," one Debbie Loo and her alleged boyfriend, Tony Vicar. He explained that Loo and Vicar helped Penny with her marijuana operation by harvesting and processing the plants at the Penny residence prior to their packaging and sale.

4. Corroboration Of The Information By Officer Char

On March 12, 1990, after speaking to the "known" male informant, Officer Char attempted to corroborate the details of the information received from all three informants. He drove to Waikoloa, twice drove by the Penny house and was able visually to confirm the fact that the defendants were living in the house described by the informants and that their physical appearances were accurately described.

He saw that the grassy area in the rear of the garage was in fact greener than the surrounding area, and that a car registered to Debbie Loo and Anthony Vicar, who were described as coconspirators by the informants, was seen at the Penny/Feeney residence on two separate occasions. Officer Char additionally observed a structure attached to the garage which appeared to be covering the area described by the informants as housing an air conditioner unit. He subsequently confirmed that a 1990 Ford pickup he had seen was in fact registered to Sean Feeney.

5. Use Of A Forward Looking Infrared Device

Officer Char thereafter corroborated the information he already had by flying over the Penny/Feeney residence in a helicopter operated by one Don Shearer. Mr. Shearer is a pilot who works for a company that owns a forward looking infrared device ("FLIR"), an instrument which detects heat sources. Mr. Shearer had operated such a device 15 to 20 times in the past for marijuana searches.

Officer Char explained in the affidavit how the FLIR works. It is a passive, non-intrusive instrument which detects differences in temperature on the surface of objects being observed. It does not send any beams or rays into the area on which it is fixed or in any way penetrate structures within that area.

It is important to stress that the instrument's sole function is to detect differences in surface temperatures of objects. Its being directed at objects in the early morning or evening, without sunlight present, shows man-made heat sources on those objects as shading from a white color for intense heat to shades of gray for cooler temperatures on the same objects.⁴

At the pre-dawn hour of 5:15 a.m. on April 3, 1990, Char and Shearer, along with Officer Theodore Gaspar, flew over the Penny/Feeney residence in a helicopter at an altitude of between 1200 and 1500 feet.⁵ From the naked eye, the Penny/Feeney residence appeared dark. But with the use of the FLIR, the walls and areas of the garage showed up as bright white indicating that heat was escaping from the structure. Adjacent but similar structures were surveyed for comparison and they did not appear in the same color as the Penny/Feeney residence. The results of the thermal device's being aimed at the Penny/Feeney residence were simultaneously recorded on a VHS video tape. Officer Char indicated in the affidavit that he had the video tape in his possession.

Don Shearer told Officer Char that based upon his experience with the FLIR, it would be consistent that a structure being used for the purpose of cultivating marijuana under artificial lighting would produce and show a significant amount of heat due to the large amounts of heat grow-lights or artificial lights generate. Shearer also explained that this heat would also cause the structure to register as warmer on the FLIR than similar types of structures without any internal sources of heat. Officer Char noted in his affidavit that during his prior personal surveillance of the Penny/Feeney residence he saw no evidence of an internal heat source for the residence; i.e., the house had nothing like a chimney on it.

Officer Char added in his affidavit that because the Penny/Feeney residence was emitting heat, the heat had to be generated artificially from within the residence, which would be consistent with the presence of high intensity grow-lights and the indoor cultivation of marijuana. Such an operation is favored by indoor marijuana growers because it is not dependent on weather conditions and cannot be detected by the naked eye.

B. Issuance and Execution of the Warrant

Based on all of the above information viewed in light of his more than ten years of law enforcement experience, Officer Char concluded that there was an indoor marijuana growing operation being conducted within the Penny/Feeney residence. Consequently, on April 3, 1990, Officer Char presented his sworn affidavit for a search warrant before Judge Joseph P. Florendo, Jr. of the District Court of the Third Circuit, State of Hawaii.

On that same day, Judge Florendo issued the search warrant for the Penny/Feeney residence and...