U.S. v. Ishmael

• Citation: 48 F.3d 850
• Decision Date: 15 March 1995
• Docket Number: No. 94-40159,94-40159
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Rohn Martin ISHMAEL and Debra K. Ishmael, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 850

48 F.3d 850

63 USLW 2639

UNITED STATES of America, Plaintiff-Appellant, v. Rohn Martin ISHMAEL and Debra K. Ishmael, Defendants-Appellees.

No. 94-40159.

United States Court of Appeals, Fifth Circuit.

March 15, 1995.

Rehearing and Suggestion for Rehearing

En Banc Denied April 19, 1995.

Mervyn Hamburg, U.S. Dept. of Justice, Washington, DC, Richard L. Moore, Lon Stuart Platt, Asst. U.S. Attys., Ruth Harris Yeager, U.S. Atty., Tyler, TX, for appellant.

George Patrick Black, Fed. Public Defender, Tyler, TX, for appellee Rohn.

Claude Edward Welch, Robert Neil Moss, Lufkin, TX, for appellee Debra.

Appeals from the United States District Court for the Eastern District of Texas.

Before REYNALDO G. GARZA, DeMOSS and BENAVIDES, Circuit Judges.

DeMOSS, Circuit Judge:

Based on the readings from a thermal imager, along with other circumstantial evidence, federal law enforcement officers obtained a warrant to search the premises of Rohn Martin Ishmael and his wife, Debra K. Ishmael. The officers executed the warrant and discovered some firearms and 770 marijuana plants. After being indicted, the Ishmaels moved to suppress the evidence on the ground that the warrantless use of the thermal imager was a constitutionally proscribed search. The district court granted the Ishmaels' motion to suppress. We now reverse.

I.

The warrant in this case was based upon the following information: In the late summer of 1992, a confidential source informed Paul Black, a Drug Enforcement Administration ("DEA") officer, that he/she had delivered numerous truck loads of concrete re-mix to the Ishmaels' secluded, rural property in Nacogdoches County, Texas. The Ishmaels, according to the source, took inordinate measures to conceal the need for the concrete. Rohn Ishmael, for example, would manually mix the concrete near the source's truck and then drive the concrete to another location on the property. His suspicions aroused, Black entered the property and saw two mobile homes and a trailer. Black, however, did not witness any illegal activity.

In August 1993, Black resumed his investigation. He and three other officers returned to the property and followed a roughly built road from the front of the property to a steep embankment where a large hole had been made. They observed around 60 empty bags of cement, a dump truck and a concrete re-mixer parked near the hole. The next day, Black investigated Rohn Ishmael's criminal record and found at least four separate marijuana-related incidents dating back to 1974, several of which involved the cultivation of marijuana. Black, along with other DEA officers, then surveyed the Ishmaels' property by air. They observed a mobile home and a large steel building, separated by about 200 to 300 yards. The steel building stood next to a 2-acre pond. Black entered the property on foot two more times. He discovered that the Ishmaels had built a structure beneath the steel building. The substructure was wired for electricity and was being fed water from the nearby pond by way of exposed rubber tubes and a water pump. The substructure also had an exhaust fan, which Black noticed was continuously running. Black also observed a nearby pallet containing 100 5-gallon plastic buckets.

Suspecting that the Ishmaels were cultivating marijuana in the structure beneath the steel building, the DEA boarded a helicopter with a thermal imager and flew over the Ishmaels' property at approximately 500 to 1000 feet. A thermal imager detects differences in surface temperature of targeted objects and displays those differences through a viewfinder in varying shades of white and gray. In other words, a warm object will appear white on the device's viewfinder, whereas a cool object will appear gray. The device can record its readings on a standard videocassette. The DEA's recording of the Ishmaels' property showed that, although the water entering the substructure was noticeably cool, the water exiting it was emitting a substantial amount of heat. The recording additionally showed that the ground adjacent to the substructure was much warmer than the ground further from the substructure.

Black then subpoenaed the Ishmaels' telephone records. The records indicated that the Ishmaels had made numerous calls to various horticulture shops, two of which appeared on a narcotics intelligence computer base as suppliers for other marijuana cultivators. Black also subpoenaed the Ishmaels' electrical utility records. The records showed that the substructure's power usage was extremely high and far exceeded the mobile home's power usage.

In September 1993, Black and several other officers again entered the Ishmaels' property on foot. Using a hand-held thermal imager, the officers canvassed the perimeter of the steel building but never entered it. The officers made essentially the same findings; an unusual amount of heat was emanating from the substructure and the ground adjacent to it. Black displayed his recordings to two DEA thermographers, both of whom concluded that the Ishmaels were illegally cultivating marijuana in the steel building's substructure. The DEA then used the thermal imager's readings, along with the wealth of information gathered by Black, to obtain a warrant to search the steel building and its substructure on the Ishmaels' property. The officers executed the warrant two days later and uncovered 770 marijuana plants and several firearms. After being indicted in October 1993, the Ishmaels moved to suppress the evidence obtained pursuant to the search warrant. They argued that the readings from the thermal imager constituted an unconstitutional search and that, without those readings, the DEA did not have probable cause to obtain a warrant.

The district court granted the motion to suppress in January 1994. See United States v. Ishmael, 843 F.Supp. 205 (E.D.Tex.1994). The court employed a burden-shifting analysis. The burden, it observed, initiated with the Ishmaels to demonstrate that they had a reasonable expectation of privacy. The court concluded that, although the steel structure was outside the curtilage of the home, the Ishmaels nonetheless had exhibited a reasonable expectation of privacy. Id. at 209-12. Specifically, it noted that "the Ishmaels had a reasonable expectation that their effects, associated with the secreted metal building and the business being conducted there, were safe from [g]overnmental surveillance." Id. at 211. Pointing to Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989), and California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), the government argued that the Ishmaels did not have a reasonable expectation of privacy from the DEA's air surveillances. The court rejected the government's argument, reasoning that those cases were limited exclusively to naked-eye observations. Id. at 211-12.

According to the district court, the burden then shifted to the government to prove that its search fell within one of the several recognized exceptions to the warrant requirement. The government, relying on Dow Chemical Company v. United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986), argued below that the heat emissions were in "plain view." The court rejected the "plain view" argument on the ground that the heat emissions would not be in plain view without the use of "sophisticated technology," namely the thermal imager. Id. at 212. Alternatively, the government analogized the heat emissions to curb-side garbage (as in California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988)) and the scent of cocaine emanating from luggage (as in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)): because each has been effectively abandoned, the defendant no longer has a subjective expectation of privacy in its concealment. The court rejected the government's analogies on the ground that the relative sophistication of the thermal imager poses a greater intrusion than officers manually rummaging through abandoned garbage or a trained police dog alerting to a suitcase carrying contraband. Id. at 212-13.

Having found that the use of the thermal imager constituted a search proscribed by the Fourth Amendment, the court proceeded to determine whether the remaining evidence amounted to probable cause. The court noted that the DEA had no direct evidence of illegal activity taking place on the Ishmaels' property. Id. at 213-14. The court stated, "The evidence of their activity was consistent with developing a new patented strain of African violets, and innumerable other perfectly legal activities." Id. at 214. On this basis, the court concluded that a judge would not find that probable cause existed for issuing a warrant, and it therefore granted the Ishmaels' motion to suppress. The government now appeals the district court's holdings that the warrantless use of the thermal imager was unconstitutional and that, absent its readings, probable cause did not exist for the issuance of the warrant.

II.

A.

In reviewing a district court's ruling on a motion to suppress, we review the court's conclusions of law de novo and its findings of fact for clear error. United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir.1993); United States v. Sanders, 994 F.2d 200, 202-03 (5th Cir.1993). Furthermore, we view the evidence in a light most favorable to the prevailing party, United States v. Piaget, 915 F.2d 138, 140 (5th Cir.1990), which in this case is the Ishmaels.

B.

The warrantless use of thermal imagers by the police has spawned a fair amount of search and seizure jurisprudence over the last several years. ¹ Though the Fifth Circuit has yet to squarely address this issue, ² three of our sister circuits have, and each has concluded that such use is not a "search" proscribed by the Fourth Amendment. United States v. Myers, 46 F.3d, at 669-70 (7th Cir.1995); United States v. Ford, 34 F.3d 992, 995-97 (11th Cir.1994); United...