U.S. v. Huggins, 01-30065.

• Decision Date: 06 August 2002
• Docket Number: No. 01-30111.,No. 01-30110.,No. 01-30065.,No. 01-30112.,01-30065.,01-30110.,01-30111.,01-30112.
• Citation: 299 F.3d 1039
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven G. HUGGINS; Vicki Jo Jensen; Dahcota Whip Hagen; Rhonda Taylor, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

299 F.3d 1039

UNITED STATES of America, Plaintiff-Appellee, v. Steven G. HUGGINS; Vicki Jo Jensen; Dahcota Whip Hagen; Rhonda Taylor, Defendants-Appellants.

No. 01-30065.

No. 01-30110.

No. 01-30111.

No. 01-30112.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2002.

Filed August 6, 2002.

Shaun S. McCrea, McCrea, P.C., Eugene, OR, argued the cause and filed briefs for appellant Huggins.

Marc A. Spence, Spence & Sabitt, LLP, Eugene, OR, filed a brief for appellant Jensen.

Craig E. Weinerman, Assistant Federal Public Defender, Eugene, OR, argued the cause and filed briefs for appellant Hagen.

David M. Michael, Law Offices of David M. Michael, San Francisco, CA, filed a brief for appellant Taylor.

Jeffrey J. Kent, Assistant United States Attorney, Eugene, OR, argued the cause for appellee United States of America. Michael W. Mosman, United States Attorney, was on the brief.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding. D.C. No. CR-99-60012-HO.

Before: B. FLETCHER, O'SCANNLAIN, and BERZON, Circuit Judges.

Opinion by Judge O'SCANNLAIN; Concurrence by Judge BETTY B. FLETCHER.

OPINION

O'SCANNLAIN, Circuit Judge.

We must decide whether the Fourth Amendment compels the suppression of the results of a series of searches set in motion by an application to scan a private residence and its outbuildings with a thermal imaging device.

I

In October 1998, DEA special agent Ronald Wright and IRS special agent Kurt Charlton interviewed a prisoner incarcerated on federal drug charges, seeking information on drug trafficking activity in southern Oregon. The informant gave them a tip that an individual variously known as Galen Maxwell, Courtney Maxwell, and Steve Huggins ("Huggins") was involved in producing and distributing marijuana and LSD. The informant added that he had last spoken to Huggins three years before, that Huggins had then lived in the Eugene area but might have since moved to Ashland, and that at the time Huggins had had a girlfriend named "Rhonda."

Wright proceeded to corroborate some of the details of the tip. He established that a Steve Huggins had listed 199 Mowetza Drive, Ashland, Oregon, as his address on a still-current vehicle registration and on an Oregon driver's license that had expired six months before; that Huggins had previously listed on his driver's license an address in Veneta (near Eugene); that a Rhonda Taylor owned the Mowetza Drive property and maintained a personal address, a business address, and telephone service there; and that Rhonda Taylor also used the names Rhonda Jewell and Rhonda Huggins. A check of DEA files indicated that a Rhonda Jensen, also known as Rhonda Jewell, who had the same date of birth as Rhonda Taylor, had been arrested in Mexico in 1983 with 200 kilograms of marijuana.

Wright drove by the Mowetza Drive property and determined that it was a five-acre parcel with a single-story ranch house, two barns, and a riding ring. He also obtained the electrical records for that property and the two neighboring properties from Pacific Power and Light. Those records indicated that the combined electricity bills for the two meters in service at 199 Mowetza Drive had averaged $455.87 per month (with total power use averaging 7784 kWh per month) over the thirteen months that the electric service had been in Rhonda Taylor's name. By comparison, electric consumption at the adjacent properties averaged 1583 and 1377 kWh per month, respectively, and their bills averaged $92.83 and $71.84. During the thirteen months before Rhonda Jensen took over the electric service at 199 Mowetza Drive, the combined bills for that property had averaged $133.69, with average usage of 2309 kWh/month.

Wright swore out an affidavit before a U.S. magistrate judge, reciting the above information about the tip (although with no details about the identity or background of the tipster,¹ and with the caveat that the tipster's "reliability" was "untested"); the corroborated details of Huggins's move from Veneta to Ashland and of his association with Rhonda Taylor; the information about Taylor's past arrest; and the electricity consumption data. Wright stated that based on his past experience, he thought this information indicated that Huggins was engaged in marijuana production. In particular, he stated that "large indoor marijuana cultivation operations typically consume large quantities of electricity primarily to power large 1,000 watt lamps associated with the grow operation." He therefore requested a warrant to examine 199 Mowetza Drive using a thermal imaging device,² as well as to collect discarded trash from the property.

The magistrate judge issued the warrant, and the search was conducted overnight by Sgt. Ken Hauge of the Oregon National Guard, a trained operator of thermal imaging equipment. As Wright later reported, the scan indicated that the south side of the eastern barn "showed an excessive heat-loss signature" that was "greater than the heat loss on the north side of the same barn" and that "continued after 1:00 a.m., which is a time during which the solar heat loading that would have occurred during daylight hours would have dissipated." The other barn also showed an excessive heat-loss signature on one wall. The heat-loss signatures, Hauge concluded, were "consistent with the signatures he ha[d] seen from other thermal images of structures from which indoor marijuana `grows' were subsequently seized."

Meanwhile, Charlton investigated Huggins's and Taylor's finances. Taylor had bought property in Veneta in 1993, sold that property in 1996, and bought the Mowetza Drive property the same month. Both properties were subject to mortgages. Huggins had never filed a federal income tax return; Taylor had filed returns, but they showed income insufficient or only barely sufficient to cover her mortgage interest payments, and they gave no indication of where she got the money for the two down payments.

Wright swore out a second affidavit, repeating the averments of the first affidavit and adding the details of the thermal imaging scan and the review of Huggins and Taylor's finances. He requested a warrant to search 199 Mowetza Drive for evidence of marijuana cultivation and related offenses. The magistrate judge granted the warrant.

The search turned up 474 growing marijuana plants in the eastern barn, plus assorted growing paraphernalia, some dried marijuana, documents, and cash. It did not, however, turn up any drying equipment. Among the documents seized were some relating to a property at 16000 North Applegate Road in Ruch. Specifically, the agents found a bill made out to Rhonda Taylor for water testing at the North Applegate Road property; receipts of payments to a title company, which bore the name D.W. Hagen; and a power bill for the North Applegate Road property addressed to Whip Hagen. They also found an envelope labeled "receipts 98 Applegate," which contained a number of receipts from a hardware store for several items, including a water heater timer, temperature gauge, and humidity gauge that can be used in operating an indoor marijuana grow. In addition, they seized a "Property Inspection Sheet" relating to a property at 15333 Highway 238 in Grants Pass. The document listed Steve and Rhonda Huggins as tenants.

Further investigation, including questioning of Taylor at the scene of the search, verified that Dahcota Whip Hagen was Taylor's son, that he owned the North Applegate Road property, and that there had been a number of phone calls from Taylor's phone line to Hagen's in July and August. In addition, an Oregon state trooper relayed an anonymous informant's tip that he had seen a marijuana grow at 16000 North Applegate Road (and had provided a leaf that he said was from that grow), and a contractor working across the road said that he had seen Whip Hagen's "parents" going in and out of Hagen's property over the previous week. Finally, the agents discovered that the electrical service at the Highway 238 property was in Steve Huggins's name and that Huggins's electricity usage was higher than the previous tenant's had been.

Based on the foregoing information, a Medford police officer working with the DEA and IRS agents sought and obtained a state search warrant for the North Applegate Road and Highway 238 properties. Both properties were searched the day after the Mowetza Drive search. The North Applegate Road property was found to contain a marijuana grow with over 100 marijuana plants, and the Highway 238 property yielded over 300 marijuana plants and some bagged marijuana.

Hagen was arrested at the North Applegate Road property, and Vicki Jensen, who is Taylor's sister, was arrested at the Highway 238 property. Jensen told the authorities that Huggins and Taylor had set her up as caretaker of the Highway 238 property.

All four defendants³ were indicted and charged with marijuana possession, cultivation, and distribution. All except Taylor were also charged with conspiracy to commit money laundering. The defendants filed various motions (with various cross-joinders) to suppress the evidence from the series of searches. In particular, the defendants challenged the affidavits' failure to describe the Mowetza Drive property and to provide an adequate basis for evaluating the electricity usage; the failure to provide information about the tipster's plea bargain and motive to lie; and the efficacy of the thermal imager, Hauge's operation of the imager during the scan of 199 Mowetza, and Wright's report of the scan results.

The district judge held a limited Franks hearing to examine whether the affiants had made material omissions or misstatements in obtaining the several search warrants. After testimony from both sides, including expert testimony on the operation and accuracy of the thermal imaging device, the district court denied the motions to suppress....