U.S. v. Kilgus, Nos. 77-1513

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore BROWNING and ANDERSON; PER CURIAM
Citation571 F.2d 508
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Christopher Russell KILGUS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Thomas CASO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Lee BECK, Defendant-Appellant.
Decision Date20 March 1978
Docket NumberNos. 77-1513,77-1568 and 76-3699

Page 508

571 F.2d 508
UNITED STATES of America, Plaintiff-Appellee,
v.
Christopher Russell KILGUS, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Thomas CASO, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jeffrey Lee BECK, Defendant-Appellant.
Nos. 77-1513, 77-1568 and 76-3699.
United States Court of Appeals,
Ninth Circuit.
March 20, 1978.

Page 509

William L. Osterhoudt (argued) of Singer & Osterhoudt, Michael H. Metzger (argued), San Francisco, Cal., for defendant-appellant.

J. Stephen Czuleger, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BROWNING and ANDERSON, Circuit Judges, and NIELSEN, * District Judge.

PER CURIAM:

Appellants were convicted by the district court below of illegal importation of marijuana (Count II) and possessing marijuana with the intent to distribute (Count IV) (21 U.S.C. §§ 952, 960, 963, 841(a)(1), and 18 U.S.C. § 2). We reverse appellants' convictions because the only substantial evidence which connects them with the crime (a "unique identification" of their aircraft by a Customs Officer using a Forward Looking Infrared system (FLIR)) was inadmissible. 1

THE FLIR SYSTEM

Briefly, the FLIR is a relatively new system developed by the military for the detection and tracking of targets through the use of infrared light rays. The system scans an area much the same as radar and utilizes an array of infrared detectors (the type, number, and effectiveness of each being a military secret). Infrared rays are picked up by these detectors, electronically processed, and shown as a visual image on a 6 X 81/2 screen very similar to a black and white TV screen. The image on the screen appears in black, white and grey contrasts. That is, objects which are hotter than their background appear white and objects colder than their background appear black (or vice versa, since the "mode" of the system can be reversed to give the image a reversed effect analogous to a photograph negative).

There is no question that the FLIR can be used for generic identification of objects, i. e., that it can readily be used to distinguish between a plane and a boat, or even between a Lear jet and a DC-3. At issue here, however, is whether the FLIR is sufficiently reliable and accepted in the scientific community to be used for unique identification. In other words, whether the FLIR can be used to identify one specific DC-3 from other DC-3's.

BACKGROUND

At approximately 1:45 a. m., on March 25, 1976, a Customs Patrol Officer at a radar control center in Phoenix, Arizona, observed an unidentified aircraft on his radar scope...

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21 practice notes
  • E.I. du Pont de Nemours and Co., Inc. v. Robinson, No. 94-0843
    • United States
    • Supreme Court of Texas
    • July 8, 1996
    ...scientific community. Daubert v. Merrell Dow Pharmaceuticals, Inc., 727 F.Supp. 570, 572 (S.D.Cal.1989) (quoting United States v. Kilgus, 571 F.2d 508, 510 (9th Cir.1978)). The Ninth Circuit Court of Appeals affirmed, citing Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), which est......
  • U.S. v. Gwaltney, No. 84-5173
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 2, 1986
    ...was " 'sufficiently established to have gained general acceptance in the particular field to which it belongs.' " United States v. Kilgus, 571 F.2d 508, 510 (9th Cir.1978), quoting Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). Additionally, he contends that the trial court erred ......
  • Barefoot v. Estelle, No. 82-6080
    • United States
    • United States Supreme Court
    • July 6, 1983
    ...437, 461, 72 Cal.Rptr. 478, 493 (1968). 9. Other purportedly scientific proof has met a similar fate. See, e.g., United States v. Kilgus, 571 F.2d 508, 510 (CA9 1978) (expert testimony identifying aircraft through "forward looking infrared system" inadmissible because unreliable and not gen......
  • State ex rel. Collins v. Superior Court, In and For Maricopa County, No. 15561
    • United States
    • Supreme Court of Arizona
    • January 7, 1982
    ...v. Fosher, 590 F.2d 381 (1st Cir. 1979) (expert testimony on the unreliability of eyewitness identification); United States v. Kilgus, 571 F.2d 508 (9th Cir. 1978) (forward looking infrared system); United States v. Brown, 557 F.2d 541 (6th Cir. 1977) (ion microprobic analysis of human hair......
  • Request a trial to view additional results
21 cases
  • E.I. du Pont de Nemours and Co., Inc. v. Robinson, No. 94-0843
    • United States
    • Supreme Court of Texas
    • July 8, 1996
    ...scientific community. Daubert v. Merrell Dow Pharmaceuticals, Inc., 727 F.Supp. 570, 572 (S.D.Cal.1989) (quoting United States v. Kilgus, 571 F.2d 508, 510 (9th Cir.1978)). The Ninth Circuit Court of Appeals affirmed, citing Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), which est......
  • U.S. v. Gwaltney, No. 84-5173
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 2, 1986
    ...was " 'sufficiently established to have gained general acceptance in the particular field to which it belongs.' " United States v. Kilgus, 571 F.2d 508, 510 (9th Cir.1978), quoting Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). Additionally, he contends that the trial court erred ......
  • Barefoot v. Estelle, No. 82-6080
    • United States
    • United States Supreme Court
    • July 6, 1983
    ...437, 461, 72 Cal.Rptr. 478, 493 (1968). 9. Other purportedly scientific proof has met a similar fate. See, e.g., United States v. Kilgus, 571 F.2d 508, 510 (CA9 1978) (expert testimony identifying aircraft through "forward looking infrared system" inadmissible because unreliable and not gen......
  • State ex rel. Collins v. Superior Court, In and For Maricopa County, No. 15561
    • United States
    • Supreme Court of Arizona
    • January 7, 1982
    ...v. Fosher, 590 F.2d 381 (1st Cir. 1979) (expert testimony on the unreliability of eyewitness identification); United States v. Kilgus, 571 F.2d 508 (9th Cir. 1978) (forward looking infrared system); United States v. Brown, 557 F.2d 541 (6th Cir. 1977) (ion microprobic analysis of human hair......
  • Request a trial to view additional results

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