U.S. v. Kyllo, PLAINTIFF-APPELLE

• Citation: 190 F.3d 1041
• Decision Date: 09 September 1999
• Docket Number: PLAINTIFF-APPELLE,V,DEFENDANT-APPELLANT,No. 96-30333,96-30333
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA,DANNY LEE KYLLO,
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1041

190 F.3d 1041 (9th Cir. 1999)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

V.

DANNY LEE KYLLO, DEFENDANT-APPELLANT.

No. 96-30333

U.S. Court of Appeals, Ninth Circuit

Argued and Submitted November 5, 1997.

Opinion Decided April 7, 1998.

Petition for Rehearing with Suggestion for Rehearing En Banc Decided May 20, 1998.

Petition for Panel Rehearing Granted January 12, 1999.

Opinion Withdrawn July 29, 1999.

September 09, 1999

[Copyrighted Material Omitted]

Kenneth Lerner, Lerner & Meyer, Portland, Oregon, for the defendant-appellant.

Kristine Olson, United States Attorney, and Robert R. Thomson, Assistant United States Attorney, Medford, Oregon; Demetra Lambros, U.S. Department of Justice, Washington, D.C., for the plaintiff-appellee.

David K. Allen, Portland, Oregon, for amicus American Liberties Union Foundation of Oregon, Inc.

Appeal from the United States District Court for the District of Oregon; Helen J. Frye, District Judge, Presiding D.C. No. CR-92-00051-1-HJF

Before: Melvin Brunetti,¹ John T. Noonan, and Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins; Dissent by Judge Noonan

OPINION

MICHAEL DALY HAWKINS, Circuit Judge:

As a matter of first impression in this circuit, Danny Lee Kyllo ("Kyllo") challenges the warrantless use of a thermal imaging device as a violation of the Fourth Amendment. Kyllo also challenges reliance on a portion of an affidavit discussing his marriage to Luanne Kyllo ("Luanne"), but omitting mention of his divorce, arguing it should not have been considered in determining whether there was probable cause to issue a warrant to search his home. We affirm, holding that the thermal image scan performed was not a search within the meaning of the Fourth Amendment, and that the district court did not clearly err in finding the omission of the Kyllos' divorce from the affidavit was not knowingly false or made in reckless disregard for the truth.

Factual and Procedural Background

Kyllo's arrest and conviction on one count of manufacturing marijuana in violation of 21 U.S.C. S 841(a)(1) followed an investigation by a law enforcement task force into a possible conspiracy to grow and distribute marijuana. While investigating the activities of Tova Shook, the daughter of the task force's original target, William Elliott ("Elliott"), an agent of the United States Bureau of Land Management, an agency participating in the task force, began to suspect Kyllo.

Oregon state law enforcement officers provided information to Elliott that strengthened his suspicions. He was told that Kyllo and Luanne resided in one unit of a triplex, another unit of which was occupied by Tova Shook and that a car registered jointly to Luanne and Kyllo parked at the triplex. Elliott was also informed that Luanne had been arrested the month before for delivery and possession of a controlled substance and that Kyllo had once told a police informant that he and Luanne could supply marijuana.

Elliott then subpoenaed Kyllo's utility records. Elliott compared the records to a spreadsheet for estimating average electrical use and concluded that Kyllo's electrical usage was abnormally high, indicating a possible indoor marijuana grow operation.

At 3:20 in the morning in mid-January from the passenger seat of a car parked on the street, Sergeant Daniel Haas ("Haas") of the Oregon National Guard examined the triplex of homes where Kyllo resided with an Agema Thermovision 210 thermal imaging device ("the Agema 210").² All objects emit heat, in the form of infrared radiation, which can be observed and recorded by thermal imaging devices, such as the Agema 210. Specifically, thermal imagers detect energy radiated from the outside surface of objects, and internal heat that has been transmitted to the outside surface of an object, which may create a differential heat pattern.

In performing its function the Agema 210 passively records thermal emissions rather than sending out intrusive beams or rays -- acting much like a camera.³ A viewfinder then translates and displays the results to the human eye, with the area around an object being shaded darker or lighter, depending on the level of heat being emitted. While at first used primarily by the military, thermal scanners have entered into law enforcement and civilian commercial use.⁴

Using the Agema 210, Haas concluded that there was high heat loss emanating from the roof of Kyllo's home above the garage, and from one wall. Haas also noted that Kyllo's house "showed much warmer" than the other two houses in the triplex. Elliott interpreted these results as further evidence of marijuana production, inferring that the high levels of heat emission indicated the presence of high intensity lights used to grow marijuana indoors.

Elliott presented this information in an Affidavit to a magistrate Judge, seeking a search warrant for the Kyllo home. The warrant was issued and Elliott searched Kyllo's home. As Elliott had suspected, an indoor marijuana grow operation was found, with more than one hundred plants. Marijuana, weapons, and drug paraphernalia were seized.

Kyllo was indicted for manufacturing marijuana, based upon the evidence seized during the search. The district court denied Kyllo's motion to suppress the seized evidence, following a hearing. Kyllo entered a conditional guilty plea and was sentenced to a prison term of 63 months. Kyllo then appealed the denial of the suppression motion, challenging several portions of the Affidavit as well as the warrantless thermal imager scan.

A panel of this court found that while the portion of Elliott's Affidavit discussing Kyllo's energy usage was false and misleading, the false statements were not knowingly or recklessly made. See United States v. Kyllo, 37 F.3d 526 (9th Cir. 1994). While concluding it was therefore proper for the magistrate Judge to consider that portion of the Affidavit in determining probable cause to issue the search warrant, the panel remanded for an evidentiary hearing on the intrusiveness and capabilities of the Agema 210 and a Franks⁵ hearing on whether Elliott had knowingly or recklessly omitted Kyllo and Luanne's divorce from his Affidavit. See id. at 531.

Following a hearing on remand, the district court concluded that the omission of the divorce from the Affidavit, while misleading, was not knowingly false or made in reckless disregard for the truth. See United States v. Kyllo, No. Cr. 92-51FR (D.Or. Mar. 15, 1996). The district court, after hearing further evidence, made factual findings on the capabilities of the Agema 210 and concluded no warrant was required before the thermal scan. The district court therefore found probable cause to issue the warrant, and denied the motion to suppress. See id. Kyllo now challenges this decision.⁶

Standard of Review

"A district court must suppress evidence seized under a warrant when an affiant has knowingly or recklessly included false information in the affidavit." See United States v. Dozier, 844 F.2d 701, 705 (9th Cir. 1988). Because it is a factual finding, we review for clear error a determination of whether false statements or omissions are intentional or reckless. See id.; United States v. Senchenko, 133 F.3d 1153 (9th Cir. 1998).

We review de novo the validity of a warrantless search. See United States v. Van Poyck, 77 F.3d 285, 290 (9th Cir. 1996); United States v. Ogbuehi, 18 F.3d 807, 812 (9th Cir. 1994). We review for clear error any underlying factual findings. See Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v. Hernandez, 27 F.3d 1403, 1406 (9th Cir. 1994).

Analysis

I. Search and Seizure Analysis

Kyllo's essential claim is that a warrant was constitutionally necessary before the government could employ the thermal imaging device. The Fourth Amendment's restrictions on governmental searches and seizures are triggered when the government invades an individual's privacy. See Oliver v. United States, 466 U.S. 170, 177-78 (1984). The individual need not show actual intrusion or invasion into a "protected space," as "the Fourth Amendment protects people -- and not simply `areas' -- against unreasonable searches and seizures." Katz v. United States, 389 U.S. 347, 353 (1967). We follow a two-part test to determine whether the Fourth Amendment has been violated by a claimed governmental intrusion into an individual's privacy. See id. at 361 (Harlan, J., Concurring); see also Smith v. Maryland, 442 U.S. 735, 740 (1979) (adopting Katz reasoning). We evaluate whether the individual has made a showing of an actual subjective expectation of privacy and then ask whether this expectation is one that society recognizes as objectively reasonable. See Katz, 389 U.S. at 361 (Harlan, J., Concurring); see also California v. Ciraolo, 476 U.S. 207, 211 (1986).

In conducting this evaluation of whether a reasonable expectation of privacy has been infringed upon by government action, we consider the facts of the case at hand. See Dow Chemical Co. v. United States, 476 U.S. 227, 239 n.5 (1986); United States v. Karo, 468 U.S. 705, 712 (1984) ("[W]e have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.").

No one disputes that a warrant was not obtained before the Agema 210 was used to scan the thermal emissions from Kyllo's house. In its inquiry into the technological capacities of the Agema 210, the district court found that it was a "non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house." The court also found that "the device cannot and did not show any people or activity within the walls of the structure" and that it "recorded only the heat being emitted from the home." Based upon a review of the record, we cannot conclude that these findings were in clear error. See Ornelas, 517 U.S. at 699.

Kyllo argues in opposition that the thermal scan intruded...