U.S. v. Real Prop. at 15324 County Hwy. E., 02-1737.

• Decision Date: 18 June 2003
• Docket Number: No. 02-1737.,02-1737.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. REAL. PROPERTY LOCATED AT 15324 COUNTY HIGHWAY E., Richland Center, Richland County, Wisconsin, Defendant, and Charles J. Acker, Claimant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1070

332 F.3d 1070

UNITED STATES of America, Plaintiff-Appellee, v. REAL. PROPERTY LOCATED AT 15324 COUNTY HIGHWAY E., Richland Center, Richland County, Wisconsin, Defendant, and Charles J. Acker, Claimant-Appellant.

No. 02-1737.

United States Court of Appeals, Seventh Circuit.

Argued December 5, 2002.

Decided June 18, 2003.

Timothy M. O'Shea (argued), Daniel J. Graber, Office of the U.S. Attorney, Madison, WI, for plaintiff-appellee.

Ralph A. Kalal (argued), Kalal & Associates, Madison, WI, for claimant-appellant.

Before BAUER, DIANE P. WOOD, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge.

Appellant Charles J. Acker challenges the district court's denial of his motion to suppress evidence and resulting order of forfeiture to the United States of his house consequent to the discovery therein of a marijuana cultivation and distribution operation. Acker claims that evidence of his violations of federal controlled substance laws should have been excluded from the forfeiture proceeding because law enforcement agents searched his residence in violation of his Fourth Amendment rights. Because we conclude that law enforcement agents acted in objectively reasonable reliance upon a warrant issued in accordance with the law as it then existed, and that, therefore, the evidence is not subject to suppression, we affirm the decision of the district court.

BACKGROUND

In March 1998, during the course of their investigation of Acker's suspected marijuana cultivation and distribution activities, Wisconsin Division of Narcotics Enforcement ("DNE") Special Agent Pete Thelen and Richland County Deputy Sheriff Rick Wickland scanned Acker's house for thermal images without first obtaining a search warrant. Thelen, a certified thermographer, concluded that the uneven heat fields radiating from the house were consistent with the heat typically generated from an indoor marijuana growing operation.¹

In addition to the thermal imaging data, Wickland included the following information in an affidavit in support of probable cause to search Acker's house: (i) that a confidential informant told Wickland in July or August 1997 that "Chuck Acker sells a lot of marijuana" and lives in Sylvan Township in Richland County, and that Wickland independently verified that Charles J. Acker lived at 15432 County Highway E., Richland Center, Sylvan Township, Richland County; (ii) that, in December 1997, a second confidential informant, whose reliability Wickland had ascertained from the informant's cooperation with authorities on three previous occasions, stated that a neighbor purchased marijuana from an individual known as "Chuck" living near both Highway 14 and the Richland/Vernon county line, and that Wickland independently verified that Acker's residence was located within two miles of the county line; (iii) that Acker's electrical records for the period April 1996 to January 1998 indicated usage hours that, based on Wickland's cannabis enforcement training, he knew to be consistent with usage patterns associated with indoor growing operations; (iv) that DNE Special Agent Loreen Tryba informed Wickland that Acker's father cultivated orchids using a controlled hydroponic system; and (v) that surveillance of Acker's residence revealed that the basement windows were "blocked out," which, in Thelen's opinion, was consistent with efforts typical of indoor marijuana growers to prevent heat emanation. On the basis of Wickland's affidavit, a Wisconsin Circuit Court judge in Richland County signed a search warrant authorizing the Richland County Sheriff's Department to search Acker's residence.

During their execution of the search warrant, law enforcement officers seized 40 cannabis plants, 2955 grams of harvested marijuana, 86.5 grams of processed marijuana packaged in sealable plastic bags, seven bags of starter soil, four 1000-watt lights with ballasts, five light timers, two exhaust fans, a triple-beam scale, notes and a notebook describing the growing operation, and drug paraphernalia. DNE agents advised Acker of his constitutional rights, which he waived in writing prior to stating that he had cultivated cannabis in his house continuously during the previous 18 months, selling 30 to 40 ounces per four-month harvest cycle for approximately $175 per ounce.

In October 1998, the government filed a civil action for the forfeiture of Acker's house pursuant to 21 U.S.C. § 881, which provides, in relevant part, for the forfeiture to the United States of property used in the commission of federal controlled substance violations punishable by more than one year of imprisonment.² Acker moved to suppress evidence of his violation and to dismiss the complaint, asserting that the thermal imaging scan, conducted without a search warrant, amounted to an unreasonable search in violation of his Fourth Amendment rights. In denying Acker's motions, the district court followed this Court's holding in United States v. Myers that "thermal imaging scanning does not constitute a search within the meaning of the Fourth Amendment." 46 F.3d 668, 669 (7th Cir.1995). This Court affirmed the district court's resulting judgment of forfeiture. United States v. 15324 County Highway E., 219 F.3d 602 (7th Cir.2000).

In 2001, the United States Supreme Court granted Acker's petition for certiorari and, on the basis of its decision in Kyllo v. United States, 533 U.S. 27, 36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (holding that warrantless "thermal-imaging observations of the intimate details of a home are impermissible"), vacated this Court's affirmance and remanded the case for our further consideration. Acker v. United States, 533 U.S. 913, 121 S.Ct. 2518, 150 L.Ed.2d 691 (2001). Noting in an unpublished opinion that, after Kyllo, "our decisions in Myers and in the present case can no longer stand," this Court vacated the district court's judgment and remanded the case for further district court proceedings consistent with the holding of Kyllo.

On remand, the district court considered the sufficiency of the affidavit absent the thermal imaging evidence and concluded that it did not establish probable cause. It did determine, however, that the officers conducting the thermal imaging scan acted in good-faith reliance upon the law then in force under Myers and, analogizing to Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (holding that evidence seized by officers acting in good-faith reliance upon statute authorizing warrantless administrative searches—later invalidated on constitutional grounds—is not subject to the exclusionary rule), applied the good-faith exception to the exclusionary rule as originally articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). As a result, the district court again denied Acker's motions to suppress and to dismiss and granted the district court's motion for summary judgment, thereby ordering the forfeiture of Acker's house.

This appeal ensued.

ANALYSIS

Ordinarily, evidence obtained in contravention of the Fourth Amendment's prohibition on unreasonable searches and seizures is subject to exclusion from the prosecution's case-in-chief. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In Leon, the United States Supreme Court established an exception to this exclusionary rule in cases where, notwithstanding a conceded Fourth Amendment violation, law enforcement officers have acted in good-faith reliance upon a search warrant validly issued by a detached and neutral magistrate. 468 U.S. at 927, 104 S.Ct. 3405 (BLACKMUN, J., concurring in judgment). The Court reasoned that the suppression of evidence obtained through magistrate error inadequately served the exclusionary rule's underlying purpose: to deter law enforcement agents from overstepping the bounds of the Fourth Amendment. Id. at 921, 104 S.Ct. 3405 (observing that "penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations").

Premised, as it is, on a law enforcement agent's good-faith reliance on a search warrant, the Leon exception is inapplicable, and suppression is therefore appropriate, in any of the following circumstances: (i) in issuing the search warrant, the magistrate relied on an affidavit that the affiant knew was false or would have known was false but for his or her recklessness; (ii) the magistrate wholly abandoned his or her detached and neutral judicial role; (iii) the affidavit's dearth of reliable indicia of probable cause renders official belief in its existence entirely unreasonable; or (iv) the affidavit is so facially deficient that executing agents could not reasonably presume it to be valid. Id. at 923, 104 S.Ct. 3405 (internal citations omitted).

The Supreme Court subsequently extended the applicability of the Leon good-faith exception to situations where a law enforcement agent conducts a warrantless administrative search in objectively reasonable reliance upon an authorizing statute that is later declared unconstitutional, reasoning that suppression of evidence seized in such manner "would have as little deterrent effect on the officer's actions as would the exclusion of evidence when an officer acts in objectively reasonable reliance on a warrant." Krull, 480 U.S. at 349-50, 107 S.Ct. 1160.

In support of his motion to suppress, Acker argued that the evidence seized pursuant to the search warrant was the tainted fruit of the initial warrantless thermal imaging scan. He urged the district court to exclude the evidence based on an application of the "independent source" doctrine, articulated in Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). In that case, federal agents observed bales of marijuana inside a warehouse after their warrantless forced entry thereto; then, neither disclosing the illegal search to the issuing magistrate nor relying on...