U.S. v. Kyllo

Decision Date07 April 1998
Docket NumberNo. 96-30333.,96-30333.
Citation140 F.3d 1249
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Danny Lee KYLLO, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Kenneth Lerner, Portland, Oregon, for defendant-appellant.

Kristine Olson, United States Attorney, District of Oregon; Robert R. Thomson, Assistant United States Attorney, Medford, Oregon, for plaintiff-appellee.

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

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: NOONAN and HAWKINS, Circuit Judges, and MERHIGE,* District Judge.

Opinion by Judge MERHIGE; Dissent by Judge HAWKINS.

MERHIGE, District Judge:

Based on the readings from a thermal imager, the observation of unusually high power usage at Defendant-Appellant Danny Lee Kyllo's home, information provided by an informant, and other circumstantial evidence, federal law enforcement officers obtained a warrant to search the premises of Danny Lee Kyllo ("Kyllo"). The officers executed the warrant and discovered an indoor marijuana growing operation, weapons, and drug paraphernalia. After being indicted, Kyllo moved to suppress all the evidence obtained in the search of his residence. The district court denied his motion. We vacated that conviction and remanded for further proceedings. On remand, the district court again denied Kyllo's motion to suppress. This appeal presents an issue of first impression in this circuit, namely whether thermal imaging scanning is a search within the meaning of the Fourth Amendment. We hold that thermal imaging scanning is a search within the meaning of the Fourth Amendment.

I. Factual Background

While investigating a suspected marijuana growing and distribution operation, United States Bureau of Land Management Agent William Elliott ("Elliott") discovered information suggesting Kyllo's involvement. Elliott contacted Oregon state law enforcement officers who provided him with additional information, including the following: that Kyllo lived with his wife, Luanne Kyllo ("Luanne"), in one unit of a triplex in Florence, Oregon; that the triplex was occupied by other persons who were suspects in the investigation; that a car registered to Kyllo and Luanne at the triplex address was parked outside the triplex; that Kyllo had allegedly told a police informant that Luanne and he could supply the informant with marijuana; and that the previous month, Luanne had been arrested for delivery and possession of a controlled substance.

Elliott subpoenaed Kyllo's utility records. Using a chart for estimating average electricity use, Elliott concluded that Kyllo's electricity use was abnormally high. At Elliott's request, Staff Sergeant Daniel Haas ("Haas") of the Oregon National Guard examined Kyllo's home using an Agema Thermovision 210 thermal imaging device (the "Agema"). A thermal imager operates by observing and recording the differential heat patterns emanating from various objects within its view. The results of the measure of these differential heat patterns are then displayed on a viewfinder on top of the instrument which indicates the amount of heat emitted by objects by shading the area around the object a lighter or darker color. As the Tenth Circuit explained,

[a]ctivities that generate a significant amount of heat ... produce a heat "signature" that the imager can detect. Under optimal conditions — viewing through an open window into a darkened room, for example — the imager (or one much like it) might well be able to resolve these heat signatures into somewhat indistinct images. The utility of the machine depends therefore not on the inevitable and ubiquitous phenomenon of heat loss but on the presence of distinguishable heat signatures inside the structure.

United States v. Cusumano, 67 F.3d 1497, 1501 (10th Cir.1995), vacated on other grounds, 83 F.3d 1247 (10th Cir.1996).

Haas' search revealed what he considered abnormally high levels of heat emanating from Kyllo's home. Elliott concluded that this heat signature indicated the presence of high intensity lights used to grow marijuana indoors. Elliott presented the information he had gathered about Kyllo in an affidavit (the "Affidavit") to a federal magistrate judge for the United States District Court for the District of Oregon and requested a search warrant for Kyllo's home. The magistrate issued the warrant. Elliott searched Kyllo's home. He discovered an indoor marijuana growing operation and seized a number of items, including marijuana, weapons, and drug paraphernalia.

Kyllo was indicted on one count of the manufacture of marijuana in violation of 21 U.S.C. § 841(a)(1). After holding a suppression hearing, the district court denied Kyllo's motion. Kyllo pled guilty and was sentenced to 63 months in custody. Kyllo appealed the district court's denial of his motion to suppress the evidence to this Court. In a memorandum disposition, this Court found that, while the portion of the Affidavit relating to Kyllo's electricity use was false and misleading, the district court was not clearly erroneous in concluding that the false statements were not knowingly or recklessly made. See United States v. Kyllo, 37 F.3d 526 (9th Cir.1994). Thus, the portion of Elliott's affidavit relating to Kyllo's electricity use was properly considered by the magistrate judge in determining whether there was probable cause to issue a warrant.

This Court then remanded the case to the district court to hold an evidentiary hearing on the capabilities of the Agema and on whether Elliott knowingly or recklessly omitted from the Affidavit the fact that Kyllo and Luanne were divorced. "A district court must suppress evidence seized under a warrant when an affiant has knowingly or recklessly included false information in the affidavit." United States v. Dozier, 844 F.2d 701, 705 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988). The district court found that, while Elliott's omission from the Affidavit of the fact that Kyllo and Luanne were divorced was misleading, it was not knowingly false or made in reckless disregard for the truth. See United States v. Kyllo, No. Cr. 92-51-FR, 1996 WL 125594 (D.Or. Mar. 15, 1996). We review the district court's finding that these statements were not made with reckless regard for the truth under the clearly erroneous standard. See Dozier, 844 F.2d at 705.

In light of the evidence presented at the suppression hearing, it was not clearly erroneous for the district court to find that Elliott's omission from the Affidavit of the fact that Kyllo and Luanne were divorced was not knowingly false or made in reckless disregard for the truth. No evidence was presented at the hearing that either Elliott or the Oregon State law enforcement officers who supplied him information knew that Kyllo and Luanne were divorced. Furthermore, there was no evidence presented showing that their failure to discover and report the fact of Kyllo's divorce was reckless. Thus, the portion of Elliott's affidavit relating to Kyllo's relationship to Luanne was properly considered by the magistrate judge in determining whether there was probable cause to issue a warrant.

After holding the evidentiary hearing, the district court found that Elliott did not knowingly or recklessly omit information about Kyllo's divorce from the Affidavit. Regarding the Agema, the district court found that (1) it revealed no intimate details of Kyllo's home, (2) it did not intrude on the privacy of persons inside Kyllo's home, (3) it could not penetrate walls or windows or reveal human activities or conversations, and (4) it "recorded only the heat being emitted from the home." United States v. Kyllo, No. CR 92-51-FR (D.Or. Mar. 15, 1996). Based on its factual findings, the district court concluded that the warrantless search of Kyllo's home with the Agema was permissible and that there was probable cause to issue the warrant to search Kyllo's home.

On appeal, Kyllo argues that the use of the thermal imaging scanner to measure the heat emanating from his house was a search within the meaning of the Fourth Amendment and, therefore, required a warrant to be valid. As a result, Kyllo argues that the search was unconstitutional, rendering the search warrant based on the results of Agema's measurements invalid. Kyllo further argues that the district court erred in finding that Elliott's omission from the Affidavit of the fact that Kyllo and Luanne were divorced was not knowingly false or made in reckless disregard for the truth. Kyllo contends that neither the findings from the warrantless search with the Agema nor Elliott's omissions from the Affidavit should have been considered by the magistrate in determining whether there was probable cause to issue the search warrant. Thus, Kyllo argues, the evidence obtained during the search should be suppressed.

II. Warrantless Search with Thermal Imaging Device

Kyllo first argues that the warrantless use of a thermal imaging device to scan his home constituted a "search" within the meaning of the Fourth Amendment, and that the fruits of this warrantless search must therefore be suppressed. The validity of a warrantless search is reviewed de novo. See United States v. Van Poyck, 77 F.3d 285, 290 (9th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 276, 136 L.Ed.2d 199 (1996). The district court's findings of fact on the capabilities of the Agema are reviewed for clear error. See Ornelas v. United States, 517 U.S. 690, 698-700, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); United States v. Hernandez, 27 F.3d 1403, 1406 (9th Cir.1994).

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and other effects, against unreasonable searches and seizures, shall not be violated."...

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6 cases
  • Kyllo v U.S.
    • United States
    • U.S. Supreme Court
    • 11 Junio 2001
    ... ... (FN6). The dissent argues that we have injected potential uncertainty into the constitutional analysis by noting that whether or not the technology is in general public use may be a factor. See post, at 7-8. That quarrel, however, is not with us but with this Court's precedent. See Ciraolo, supra, at 215 ("In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude ... ...
  • KYLLO v. UNITED STATES
    • United States
    • U.S. Supreme Court
    • 11 Junio 2001
    ...in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially reversed, 140 F. 3d 1249 (1998), but 31opinion was withdrawn and the panel (after a change in composition) affirmed, 190 F. 3d 1041 (1999), with Judge Noonan dissentin......
  • USA. v. Fiorillo
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 10 Septiembre 1999
    ... ...         1. Standard of Review ...         "The validity of a warrantless search is reviewed de novo." United States v. Kyllo, 140 F.3d 1249, 1252 (9th Cir. 1998). This court reviews de novo a district court's denial of a motion to suppress evidence seized in a search ... history only to determine "whether there is clearly expressed legislative intention contrary to[the statutory] language, which would require us to question the strong presumption that Congress expresses its intent through the language it chooses." INS v. Cardoza-Fonseca , 480 U.S. 421, 432 ... ...
  • USA v. Depew
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 2 Mayo 2000
    ... ... See id. at 1213. The district court also held, pursuant to our decision in United States v. Kyllo, 37 F.3d 526 (9th Cir. 1994) ("Kyllo I"), that the use of the thermal imager was not per se a violation of Depew's Fourth Amendment rights. See ... We review that denial for an abuse of discretion. See United States v. Labansat, 94 F.3d 527, 530 (9th Cir. 1996). For us to hold that the district court abused its discretion by not authorizing employment of an expert witness, Depew must show that (1) "a reasonably ... ...
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2 books & journal articles

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