U.S. v. Kerr
| Decision Date | 08 June 1989 |
| Docket Number | No. 88-3070,88-3070 |
| Citation | 876 F.2d 1440 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Douglas R. KERR, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Or., for defendant-appellant.
Frank Noonan and Stephen F. Peifer, Asst. U.S. Attys., Portland, Or., for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
Before SCHROEDER, POOLE and NELSON, Circuit Judges.
Douglas Kerr appeals from his conviction for manufacturing and possessing marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841. Kerr challenges the district court's denial of his motion to suppress evidence seized from his premises. Kerr also challenges the sentence imposed by the district court.
In April or May 1987, Officer Herbert Royster of the Oregon State Police received an anonymous telephone call which stated that appellant Douglas Kerr was engaged in a marijuana growing operation. The caller provided Kerr's address, a description of Kerr's premises and the following information:
1) Kerr was growing marijuana for profit in a detached barn or shed located on his property;
2) Kerr used children, including his own, to grow marijuana and distribute it to other children;
3) Kerr had threatened to use a fully automatic weapon against the children and their families if they reported his operation 4) Kerr had been involved in an earlier marijuana growing operation with Charles McGee, who was arrested for growing marijuana in 1985.
The informant also provided Royster with information pertaining to the McGee operation which, according to Royster, could only be known by a person who had firsthand knowledge of the Oregon State Police investigation of McGee. In addition, the informant pointed out a number of similarities between the Kerr and McGee growing operations.
Royster commenced an investigation of Douglas Kerr based upon the information supplied by the anonymous informant. Royster contacted the investigating officer in the McGee case and determined that the information provided by the anonymous caller was correct with regard to the investigation and arrest of Charles McGee. 1
On June 19, 1987, Royster flew in an Oregon State Police aircraft over Kerr's residence. Royster took several photographs which showed a "detached shed-like structure" located adjacent to Kerr's main residence. Royster contacted the Clackamas County Tax Department and discovered that no building inspection had been performed on the house or detached shed. The inspector's report stated that no inspection could be performed due to the watchdogs located on the Kerr premises.
Royster next contacted two of Kerr's neighbors. Both neighbors informed Royster that they had heard rapid gunfire coming from Kerr's property. In addition, one neighbor stated that he had heard Mr. Kerr "loudly verbally abusing" his children on various occasions. On July 23, 1987, Royster entered one of the neighbor's premises and walked to the edge of Mr. Kerr's property. From his vantage point approximately 50 yards away from Kerr's shed, Royster heard the sound of a combustion motor engine from within the shed. Royster noticed that there were three vents on one side of the shed and that one vent had black, soot-like material adhering to it. Royster claimed that as the wind shifted, he could smell the odor of fresh marijuana coming from the direction of the shed. Royster also stated that Kerr's neighbor reported smelling a "musty, earthy like smell" coming from the shed, which is consistent with the odor of fresh marijuana.
At 4:00 a.m. the next morning, Royster returned to the neighbor's property with an infrared sensing device. Royster was accompanied by Oregon State Forestry Officer Ron Lundblad who had used the infrared device to detect "hot spots" in forest fire fighting. The device detects heat emissions which appear to the viewer as bright, glowing spots in the viewer scope. Royster and Lundblad walked to the edge of Kerr's property and observed Kerr's shed through the infrared device. Royster noticed three bright spots where the vents were located (which were consistent with the exhaust produced by a combustion motor) and a darker color throughout the rest of the shed which indicated that the structure was well insulated. Royster believed that both pieces of evidence were incriminating because indoor marijuana growers often insulate their growing areas and frequently employ combustion engine generators to prevent detection of the high electrical consumption involved in growing marijuana.
The following day, Royster contacted a third neighbor who reported having heard rapid gunfire of varying caliber coming from Kerr's property. The neighbor also stated that there was an unusually large amount of vehicular traffic going to and from the Kerr residence and that he had observed Kerr forcing one of his children to perform demeaning actions when the child had failed to lock the access gate to the Kerr property.
Royster signed an affidavit setting forth the foregoing facts and submitted it to a Clackamas County Circuit Judge. The On July 31, 1987, officers of the Oregon State Police and the United States Drug Enforcement Administration executed the warrant to search Kerr's premises. The officers seized over 1,200 growing marijuana plants, dried processed marijuana, various items of marijuana paraphernalia, and records relating to marijuana growing.
judge issued a warrant to search Kerr's premises and to seize marijuana, marijuana manufacturing equipment and distribution paraphernalia, documents of marijuana growing and distribution, and currency and other items of value.
Kerr was indicted by a grand jury for manufacturing marijuana in violation of 21 U.S.C. Secs. 841(a)(1) (Count One) and possessing marijuana with intent to distribute, also in violation of 21 U.S.C. Sec. 841(a)(1) (Count Two). After the indictment, Kerr moved to suppress the evidence obtained in the July 31 search. Kerr claimed that the affidavit in support of the warrant did not provide probable cause to believe that marijuana would be found on his premises. The district judge held an evidentiary hearing and denied Kerr's motion to suppress. On January 4, 1988, Kerr entered a conditional plea of guilty to both counts charged in the indictment.
Prior to sentencing, Kerr filed a motion pursuant to Federal Rule of Criminal Procedure 32(c)(3)(A) controverting certain factual allegations contained in the presentence investigation report. Kerr's motion alleged that the presentence report incorrectly stated that Kerr had utilized children in his marijuana growing operation. Kerr requested a sentencing hearing which was held on March 8, 1988.
At the hearing, Royster testified that the only evidence concerning the use of children in Kerr's marijuana growing operation was that which was furnished by the anonymous informant. Based on this information, the district court found by clear and convincing evidence that Kerr had used children in his marijuana growing operation. The court disclaimed any reliance on this finding, however, stating that "the sentence I would achieve in this case would be the same whether I took that into account or not." The district court then imposed consecutive sentences of five years on Count One and three years on Count Two. The court also imposed concurrent special parole terms of five years. Kerr now appeals both the denial of his motion to suppress and the sentence imposed by the district court.
Kerr contends that the infrared inspection of his premises constituted a warrantless search in violation of the Fourth Amendment. Kerr further asserts that, since the affidavit in support of the search warrant contained information obtained from the infrared inspection, all products of the subsequent search and seizure must be suppressed. Kerr is mistaken in his belief that the entire warrant is somehow "tainted" by the inclusion of illegally obtained evidence. Even if the infrared inspection did violate the Fourth Amendment, only the information which was obtained from the infrared inspection is properly excludable. Evidence which was obtained from sources other than the infrared inspection is not "fruit of the poisonous tree" and its exclusion is not warranted. Segura v. United States, 468 U.S. 796, 813-15, 104 S.Ct. 3380, 3389-91, 82 L.Ed.2d 599 (1984); United States v. Vasey, 834 F.2d 782, 788 (9th Cir.1987).
The infrared inspection yielded two pieces of evidence--the presence of both "hot spots" and insulation inside Kerr's shed. Royster stated that the "hot spots" indicated that a combustion engine was being operated inside the shed. However, Royster stated that, prior to conducting the infrared inspection, he heard the sound of a combustion engine coming from inside Kerr's shed. Therefore, the "hot spots" revealed by the infrared inspection merely duplicated earlier, independently obtained evidence.
The infrared inspection also revealed the presence of insulation inside the shed which, according to Royster, is frequently used by indoor marijuana growers. Although this evidence was first discovered through the infrared inspection, it is of such slight probative value in relation to the other evidence contained in the affidavit that the probable cause determination is not affected by its inclusion. As a result, we express no opinion as to the legality of the infrared inspection.
The existence of probable cause depends upon whether the "totality of the circumstances" provides the issuing magistrate with a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The duty of this court is "to...
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