U.S. v. Ford

• Decision Date: 21 September 1994
• Docket Number: No. 92-5181,92-5181
• Citation: 34 F.3d 992
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry FORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 992

34 F.3d 992

63 USLW 2251

UNITED STATES of America, Plaintiff-Appellee, v. Jerry FORD, Defendant-Appellant.

No. 92-5181.

United States Court of Appeals, Eleventh Circuit.

Sept. 21, 1994.

John R. Howes, P.A., Ft. Lauderdale, FL, for appellant.

Linda Collins Hertz, Anne M. Hayes, Asst. U.S. Attys., Miami, FL, and William Michael, Jr., Asst. U.S. Atty., Ft. Pierce, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and BIRCH, Circuit Judges, and HOEVELER ^*, Senior District Judge.

BIRCH, Circuit Judge:

In this appeal, we decide for the first time in this circuit whether surveillance of a mobile home using a thermal imager constitutes a search under the Fourth Amendment. Because appellant exhibited neither a subjective nor an objective expectation of privacy in heat vented from his mobile home, we find that the thermal imagery did not constitute an impermissible search. We AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

In May, 1991, agents of the Florida Department of Law Enforcement (FDLE) used a thermal imager to scan a mobile home in Venus, Florida. Appellant Jerry Lee Ford owned the mobile home, which was located on land leased by Ford and his codefendant, Dorothy Ford Longmire. Acting upon information that Ford and Longmire were growing marijuana inside the mobile home, FDLE agents and other law enforcement officers covertly approached the structure late at night. The officers entered over a locked gate and traveled a quarter of a mile onto the leased property. They established surveillance in thick foliage approximately thirty-five to forty-five yards from the mobile home.

An FDLE agent viewed the mobile home through a thermal imager, a passive, non-intrusive device that measures heat in the infrared range. A thermal imager detects minute differences in temperature on the surface of objects and displays that information visually. The agent determined that the mobile home was emitting an inordinate amount of heat through its floor and walls; this finding was consistent with other indoor growing operations, which generate excess heat because of their use of artificial lights. Based upon information gained from the thermal imager and from other sources, the FDLE obtained a search warrant for the mobile home.

When the FDLE executed the search warrant, they discovered a sophisticated hydroponic laboratory and over four hundred marijuana plants. To prevent outsiders from observing this operation, Ford had boarded the mobile home's windows behind curtains. Ford had also punched holes in the floor of the mobile home and installed a blower to vent the excess heat generated by the artificial lights. Both Ford and Longmire were arrested and charged in a two-count indictment for conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 846, and for possession of marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1).

Prior to trial, Ford moved to suppress evidence seized from the mobile home. He argued that the FDLE lacked probable cause to support the search warrant. Additionally, he challenged the FDLE's warrantless use of a thermal imager, arguing that such a scan constituted an impermissible search under the Fourth Amendment.

The suppression motion was referred to a magistrate judge, who recommended that the district court deny the motion because Ford had failed to establish standing to object to the search. Alternatively, the magistrate judge rejected the merits of Ford's suppression motion, finding that the search warrant was supported by probable cause. Further, the magistrate judge concluded that thermal imagery did not constitute a search violative of the Fourth Amendment because Ford did not have a reasonable expectation of privacy in heat escaping from his mobile home. The district court adopted the magistrate's report and recommendation and denied Ford's suppression motion.

After the jury had been sworn, Ford renewed his motion to suppress. ¹ In addition to challenging the FDLE's warrantless use of a thermal imager, Ford argued that the affidavit supporting the search warrant relied upon stale information. Ford also claimed that the FDLE's act of trespass onto Ford's leasehold itself constituted a warrantless search. Ford explained that he had not introduced these two grounds earlier because they were based on discovery materials that the defense had received the previous night. The district court denied the renewed motion to suppress without comment. Ford was convicted for possession of marijuana with intent to distribute.

II. DISCUSSION

Ford challenges the district court's denial of his suppression motions on three grounds. He contends (1) that the FDLE agents conducted a warrantless search by invading the curtilage of his mobile home, (2) that the use of the thermal imager was a warrantless search, and (3) that the area around his mobile home was part of his commercial curtilage, should the court find that the structure was not a residence. Because Ford did not raise his curtilage claims in his pretrial suppression motion, only the issue of whether the thermal imagery constituted a warrantless search was preserved for appeal. ²

Whether the district court erred in denying Ford's suppression motion is a mixed question of law and fact. We review the district court's factual findings for clear error, and we review de novo the district court's application of law to those facts. United States v. McKinnon, 985 F.2d 525, 527 (11th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 130, 126 L.Ed.2d 94 (1993).

A. Standing to Object

Whether Ford has standing to object to the search is the threshold issue in this case. The government contends, and the district court held, that Ford failed to establish his standing in an affidavit or a signed statement of facts supporting his motion to suppress as required by Local Rule 10 H for the Southern District of Florida. Local Rule 10 H provides that "[a]ll motions in criminal cases which require evidentiary support shall be accompanied by a memorandum of law and a signed statement of the facts relied upon for the motion." S.D.Fla. Local R. 10 H. We have held that "a motion to suppress must in every critical respect, including allegations of standing, be 'sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that a substantial claim is presented.' " United States v. Eyster, 948 F.2d 1196, 1208-09 (11th Cir.1991) (quoting United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir.), cert. denied, 474 U.S. 952, 106 S.Ct. 320, 88 L.Ed.2d 303 (1985)).

Although Ford did not append a separate signed statement of facts to his suppression motion, the motion itself refers to the searched premises as "Defendant's mobile home" and as "a private home." R1-52. In addition, Ford's memorandum of law supporting his suppression motion states that Ford leased the property where the mobile home was located. R1-50. Both the motion and the supporting memorandum were signed by Ford's attorney. Because Ford submitted signed documents alleging both ownership of the mobile home and a leasehold in the underlying property, we find that he satisfied Local Rule 10 H. Cf. Eyster, 948 F.2d at 1209 (holding that appellant's suppression motion, with the government's acknowledgement that the appellant owned the searched residence and the appellant's testimony that he was a sublessee of the residence at the time of the search, adequately alleged standing); Richardson, 764 F.2d at 1527 ("In short, the motion must allege facts which, if proven, would provide a basis for relief.").

Moreover, the facts established at trial confirm Ford's standing. The district court did not accord a hearing on the suppression motion because it determined that Ford had not established a prima facie case for suppression. Nevertheless, government witnesses testified at trial that Ford had a leasehold in the property at the time of the search. Consequently, we find that Ford had standing to object to the search. See United States v. Garcia, 741 F.2d 363, 366 (11th Cir.1984) (holding that owners, lessees, and occupants demonstrating significant and current interest in the searched premises have an expectation of privacy).

B. Thermal Imagery Search

Whether the FDLE's use of a thermal imager constituted an unreasonable search under the Fourth Amendment is a first-impression issue in our circuit. ³ The touchstone for this decision is whether the alleged search violated the defendant's legitimate expectations of privacy. Establishing a legitimate expectation of privacy is "a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.' " Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

In Katz, the Supreme Court held, "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Id. at 351, 88 S.Ct. at 511 (citations omitted). The record indicates that Ford made no attempt to conceal the heat generated by his marijuana hothouse. While Ford was careful to prevent any light from escaping the mobile home--for example, by boarding the windows from the inside--he took affirmative steps to vent the excess heat that was detected by the FDLE's thermal imager. Ford punched holes in the floor of his mobile home and forced the warmer air out using an electric blower. He also installed an air conditioner in one part of the mobile home. Ford may not have expected the FDLE to use a "highly technical" thermal imager to detect the heat emitted from his mobile home, Appellant's Brief at 25, but...