83 F.3d 1247 (10th Cir. 1996), 94-8056, United States v. Cusumano

Docket Nº:94-8056, 94-8057.
Citation:83 F.3d 1247
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:May 08, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1247

83 F.3d 1247 (10th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

Christopher Paul CUSUMANO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert William PORCO, Defendant-Appellant.

Nos. 94-8056, 94-8057.

United States Court of Appeals, Tenth Circuit

May 8, 1996

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David A. Kubichek, Assistant United States Attorney, (David D. Freudenthal, United States Attorney, with him on the brief), Casper, Wyoming, for Plaintiff-Appellant United States of America.

Howard A. Pincus, Assistant Federal Public Defender, (Michael G. Katz, Federal Public Defender, Denver, Colorado, with him on the brief in No. 98-8056; Donald Horowitz, Law Office of Donald Horowitz, Hackensack, New Jersey, and Geoffrey H. Simon, Parcel, Mauro, Hultin & Spaanstra, P.C., Denver, Colorado, on the brief in No. 98-8057), Denver, Colorado, for Defendants-Appellants Christopher Paul Cusumano and Robert William Porco.

Before SEYMOUR, Chief Judge, and McKAY, PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO and MURPHY, Circuit Judges.

ON REHEARING EN BANC

BALDOCK, Circuit Judge.

Defendants Christopher Paul Cusumano and Robert William Porco entered conditional pleas of guilty to manufacturing marijuana, 21 U.S.C. § 841(a)(1), and reserved their right to appeal the district court's denial of their motion to suppress. The district court sentenced each Defendant to thirty-months imprisonment. On appeal, Defendants contend that the affidavit in support of the search warrant issued against their residence contained improper information drawn from the warrantless use of a thermal imager. Defendants tell us that a thermal imager detects and records infrared radiation emitted from heat sources. According to Defendants, the warrantless use of the thermal imager to detect heat emissions from their residence violated the Fourth Amendment's proscription against unreasonable searches, and, in the absence of such information, the affidavit did not establish probable cause to support the search warrant. We exercise jurisdiction under 28 U.S.C. § 1291. We hold that, absent any consideration of the information obtained from the warrantless use of the thermal imager, the affidavit established probable cause to support issuance of the search warrant. Accordingly, we do not decide whether the use of a thermal imager to detect heat emissions from a personal residence constitutes a search under the Fourth Amendment.

I.

In August 1993, the County Court of Laramie, Wyoming, issued a search warrant against the residence at 3679 Piper Lane, Cheyenne, Wyoming, upon the affidavit of County Detective Terry Bohlig. Detective Bohlig concluded that Defendants Cusumano and Porco were growing marijuana for sale in the basement of their rented residence. Detective Bohlig based his conclusion upon the following verified facts:

1. Defendants stated to the landlord that a grow light in the basement's furnace room was used to grow fresh vegetables;

2. The landlord detected a strong musty odor in the basement of the residence;

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3. The landlord observed cardboard covering the basement windows of the residence;

4. Power company reports indicated that the residence was consuming twice the amount of electricity as similar structures in the area;

5. An electrician, which Defendants hired unsuccessfully to approve electrical work in the basement of the residence, reported that the existing wiring could support a grow operation;

6. The electrician also reported that the use of power equipment to provide electricity to an alleged sound stage placed over the basement's indoor swimming pool was inconsistent with existing wiring;

7. Defendants were operating a generator in the garage of the residence purportedly to provide supplemental electricity for musical equipment in the basement, though no such equipment was ever observed;

8. Defendants received delivery of five hundred gallons of diesel fuel at the residence to operate the generator;

9. Defendants paid their rent in three-month installments of $2,100.00 cash;

10. Resident Thomas J. Sanatello (a defendant in the district court) refused to allow the landlord's homeowners insurance agent to inspect the residence for a two week period;

11. The insurance agent observed two wheel barrows, a shovel, and sacks of soil near a door of the residence leading to the basement;

12. The insurance agent feared for his safety while speaking with Sanatello;

13. Defendants had no visible means of support;

14. A thermal imager scan of the residence indicated that Defendants were emitting high levels of heat from the residence, especially from the area of the basement containing the indoor swimming pool.

Based upon these facts, Detective Bohlig concluded in his affidavit that Defendants Cusumano and Porco were growing marijuana in the basement's swimming pool, which they had, in effect, made into an indoor greenhouse. A search of Defendants' residence confirmed Detective Bohlig's conclusion.

II.

The district court denied Defendants' motion to suppress the evidence resulting from execution of the search warrant. The district court held that the verified facts in Detective Bohlig's affidavit established probable cause to support issuance of the search warrant. United States v. Porco, 842 F.Supp. 1393, 1399-1401 (D.Wyo.1994). In so holding, the court concluded that the warrantless use of the thermal imager to scan Defendants' residence did not constitute an unreasonable search under the Fourth Amendment. Id. at 1395-98. The court did not consider whether the affidavit established probable cause absent the results of the thermal imager scan.

A panel of this court affirmed the denial of Defendants' motion to suppress because the "totality of the evidence" presented in Detective Bohlig's affidavit established probable cause, thus supporting issuance of the search warrant. United States v. Cusumano, 67 F.3d 1497, 1510 (10th Cir.1995). The panel "held," however, "that the warrantless use of a thermal imager upon a home violates the Fourth Amendment of the Constitution." Id. at 1510. A majority of the entire court voted to rehear these appeals en banc. 1

III.

The Fourth Amendment requires that "no Warrants shall issue, but upon probable

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cause, supported by Oath or affirmation." U.S. Const. amend IV. In determining whether probable cause supported the issuance of a search warrant, we give "great deference" to the decision of the issuing magistrate or judge. United States v. Williams, 45 F.3d 1481, 1485 (10th Cir.1995). We ask only whether the issuing magistrate or judge had a "substantial basis" for finding probable cause:

The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (internal ellipses, quotations, and brackets omitted). In our review, we may disregard allegedly tainted material in the affidavit and ask whether sufficient facts remain to establish probable cause. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667 (1978); United States v. Knapp, 1 F.3d 1026, 1028-29 (10th Cir.1993).

Applying these principles, we agree with the panel opinion that the "totality of the evidence substantially supports the conclusion that there was 'a fair probability that contraband or evidence of a crime' would be found in Defendants' home." Cusumano, 67 F.3d at 1510 (quoting Gates, 462 U.S. at 238, 103 S.Ct. at 2332). Apart from the fact that a thermal imager scan of Defendants' residence indicated heat emissions in the area of the basement's swimming pool, the remaining facts set forth in Detective Bohlig's affidavit "provide more than ample support for the warrant that was issued." Cusumano, 67 F.3d at 1510. We differ with the panel opinion and the district court, however, on the necessity of deciding the constitutionality of the warrantless use of the thermal imager in these cases.

We do not decide the constitutionality of the warrantless use of the thermal imager to scan Defendants' residence because any such decision is unnecessary to a resolution of Defendants' appeals. Any decision we might reach on that question would not alter the outcome of these appeals. Detective Bohlig's affidavit was sufficient to establish probable cause absent any consideration of the results of the thermal imager scan. 2 Specifically, Detective Bohlig's affidavit set forth numerous facts in such detail that, in aggregate, lead us to conclude that a fair probability existed that Defendants were growing marijuana in the basement of their residence. Consequently, the search warrant was based on probable cause even without the information supplied by the thermal imager.

The Supreme Court has long endorsed, if not always adhered to, the notion that federal courts should address constitutional questions only when necessary to a resolution of the case or controversy before it. 3 This is a "fundamental rule of judicial restraint." Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138, 157, 104 S.Ct. 2267, 2279, 81 L.Ed.2d 113 (1984); see also, Cartwright v. Maynard, 822 F.2d 1477, 1479 (10th Cir.1987) (en banc) ("federal court will address constitutional question only when it is necessary to the resolution of the...

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