US v. Porco, 93-CR-0102-B.

Citation842 F. Supp. 1393
Decision Date27 January 1994
Docket NumberNo. 93-CR-0102-B.,93-CR-0102-B.
PartiesUNITED STATES of America, Plaintiff, v. Robert W. PORCO, Christopher P. Cusumano, and Thomas J. Santanello, Defendants.
CourtUnited States District Courts. 10th Circuit. District of Wyoming

COPYRIGHT MATERIAL OMITTED

William U. Hill, Asst. U.S. Atty., Cheyenne, WY, for U.S.

Donald Horowitz, Hackensack, NJ, and James W. Gusea, Cheyenne, WY, for Robert W. Porco.

Daniel G. Blythe, John B. Rogers, Cheyenne, WY, for Christopher P. Cusumano.

Michael R. O'Donnell, Asst. Fed. Pub. Defender, Cheyenne, WY, for Thomas J. Santanello.

ORDER DENYING MOTIONS

BRIMMER, District Judge.

The above-entitled matter having come before the Court upon Defendants Porco and Cusumano's motions to suppress evidence, Defendant Cusumano's motion to suppress statements, Defendant Cusumano's motion for a James hearing, Defendants Porco and Cusumano's motions for preservation of evidence, Defendants Porco and Cusumano's motions for discovery, and Defendant Porco's Motion to Sever, and the parties' briefs in support of and in opposition thereto, and the Court having reviewed the materials on file herein, having heard argument from the parties, and being fully advised in the premises, FINDS and ORDERS as follows:

BACKGROUND

The defendants in this case were charged with the conspiracy to manufacture marijuana by cultivation, in violation of 21 U.S.C. § 846, the manufacture of marijuana, in violation of 21 U.S.C. § 841(a)(1), and with aiding and abetting in the manufacture of marijuana, in violation of 18 U.S.C. § 2. Defendants Porco and Cusumano have made numerous motions, including motions to suppress evidence and statements, motions for a James hearing, motions for the preservation of evidence, motions for discovery, and a motion to sever. The Court addresses each motion below.1

I. Defendants Porco and Cusumano's Motions to Suppress Evidence

The defendants have filed a motion to exclude from evidence all items obtained by the Laramie County Sheriff's department pursuant to a search warrant issued on August 26, 1993, which authorized a search of their residence at 3679 Piper Lane, Cheyenne, Wyoming. There are four grounds upon which this motion is based: (1) the Laramie County Sheriff's department conducted a warrantless predicate search in violation of the Fourth Amendment when it used a thermal imaging device on the defendants' residence; (2) the Laramie County Sheriff's department's search of the defendants' electrical usage was an unjustified warrantless search; (3) the search warrant and its execution were defective; and (4) the affidavit underlying the search warrant lacked probable cause.

A. The Thermal Imaging Device
1. Factual Background

The first argument made by the defendants concerns a thermal imaging device which was used to detect heat loss emanating from their residence. The defendants contend that the use of the device constituted a warrantless search and thus, violated their Fourth Amendment rights.

During the course of their investigation, Special Agents Mike Curran and Al Bennett of the Wyoming Division of Criminal Investigation used a thermal imager to detect inordinate heat loss from the defendants' residence that was consistent with an indoor marijuana grow operation.

The thermal imaging device does not detect or enhance visible light, but rather, operates in the thermal infrared spectrum to detect differences in temperature of the surface of objects being viewed. It is a passive, non-intrusive system which does not penetrate or send any rays or beams into the area which is being viewed. The device is a hand held unit which looks like a 35 mm camera. Its range, according to Curran, is from between 2 feet to one quarter of a mile. The device, which operates best three to four hours after sunset, records the relative temperatures of objects being viewed. Objects examined by the device will appear to be white if they have a relatively high temperature, while cooler objects will appear as grey or black. The reading taken by the imager can be viewed through a viewfinder and is recorded on a videotape. Similar devices have been used for a variety of purposes including the identification of inefficient building insulation and the detection of forest fire lines through smoke.

Both Agents Curran and Bennett have received formalized training in the theory and operating of the thermal imager from the Drug Enforcement Agency and Agent Curran had used the device approximately 42 time prior to its use in the investigation of this case.

On the evening of July 2, 1993, Curran and Bennett drove to the area of 3679 Piper Lane to view the residence with the thermal imager. They first took a reading of the back side of the residence from Piper Lane. They then drove around the South side of the house to an airstrip of a nearby airfield where they were able to view the front of the house. The agents never left their vehicle or entered onto the property of 3679 Piper Lane. The reading of the back side of the house did not reveal a very detailed image, however, the reading of the front side of the house showed several hot spots emanating from the front door and the roof of the residence. This reading indicated an inordinate amount of heat loss which would be consistent with a marijuana grow operation using high intensity grow lights which produce a significant amount of heat.

2. Discussion

The Fourth Amendment to the United States Constitution provides, in pertinent part that:

the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause
...

Accordingly, this Court must first determine whether the use of the thermal imaging device in this case constituted a search within the meaning of the Fourth Amendment. If the Court concludes that use of the device constituted a search, then it must go on to consider the legality of the search.

In the case of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme Court articulated the test for determining the existence of an interest protected by the Fourth Amendment. The Katz Court held that "the capacity to invoke the protection of the Fourth Amendment depends ... on whether the person seeking the protection of the Amendment had a legitimate expectation of privacy in the invaded place." United States v. Penny-Feeney, 773 F.Supp. 220, 225 (D.Hawaii 1991) (citing Katz, 389 U.S. at 353, 88 S.Ct. at 512 (Harlan, J., concurring)). A legitimate expectation of privacy is said to exist where (1) the individual involved has an actual, subjective expectation of privacy; and (2) the expectation is one that society is willing to recognize as reasonable. Katz, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

The Court finds instructive the case of United States v. Penny-Feeney, which is very similar on its facts to the case at bar. In that case, an infrared thermal imaging device was used from an airplane which flew over the defendants' residence. Penny-Feeney, 773 F.Supp. at 223. The court in that case characterized the heat emanating from the home as waste and concluded that the defendants "did not manifest an actual expectation of privacy in the heat waste since they voluntarily vented it outside the garage where it could be exposed to the public and in no way attempted to impede its escape or exercise dominion over it." Id. at 226.

The government contends that the defendants in this case similarly did not have a subjective expectation of privacy in the heat generated from their home. The defendants argue, however, that the fact that they covered their basement windows with cardboard and leaned a camper shell over an open garage window indicates that they did have an expectation of privacy. Upon examination of this argument, it seems that, from their actions, the defendants may have had an expectation of privacy in the view of the interior of the residence, but it remains questionable whether they had any such expectation in the heat which was escaping from the building. Moreover, the defendants did nothing to prevent heat from escaping.

However, even if the defendants were able to demonstrate that they had an expectation of privacy in the heat emanating from their residence, they have not established that society would be willing to accept such an expectation as objectively reasonable. The Penny-Feeney court analogized the heat detected by a thermal imaging device to garbage placed outside of a person's home which was addressed in the case of California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1987). The court stated:

Both cases involve a homeowner's disposing of waste matter in areas exposed to the public. In Greenwood, the exposure was visual and the Court found that it was in no way diminished by the fact that the garbage was stored in opaque trash bags. Here, the exposure is heat-sensory and is in no way diminished by the fact that the source of the heat could only be detected by use of the thermal imaging device.

Penny-Feeney, 773 F.Supp. at 226. The fact that in this case the defendants did nothing to either conceal the heat emanating from their residence, nor did they vent it from their residence, as the Penny-Feeney defendants did, is not determinative of whether society would consider an expectation of privacy in the heat a reasonable one. Indeed, the Supreme Court has repeatedly held that the use of non-intrusive, extra-sensory devices to investigate people and objects does not constitute a search protected by the Fourth Amendment. For example, the Court has held that using a beeper to track the movements of a vehicle is not considered a search, see United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), using a dog to sniff luggage at an airport for drugs is not a search, see United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, ...

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