U.S. v. Woodward
| Decision Date | 29 January 2001 |
| Docket Number | No. CRIM. 00-86-P-C.,CRIM. 00-86-P-C. |
| Citation | 154 F.Supp.2d 83 |
| Parties | UNITED STATES of America v. Kevin WOODWARD and Gregory Jackson, Defendants |
| Court | U.S. District Court — District of Maine |
Donald E. Clark, Office of the U.S. Attorney, Portland, ME, for U.S. Attorneys.
Leonard I. Sharon, Sharon, Leary & Detroy, Auburn, ME, for Kevin E. Woodward.
E. James Burke, Lewiston, ME, for Gregory L Jackson.
The Court now has before it Defendants' Motion to Suppress, in which they seek suppression of all evidence seized from their residence and any evidence derived from the search of their residence. Docket No. 12. Specifically, Defendants argue that the use of a thermal imaging device without a warrant to do so violates each Defendant's right to be free from unreasonable searches and that the warrant ultimately issued was itself based on an illegal search. Id. Defendants also contend that the search warrant was based on a false statement and that without that statement there was insufficient evidence to issue a search warrant. The Government opposes the motion, arguing that the use of a thermal imaging device is not a search within the meaning of the Fourth Amendment and that even though the warrant application contained a false statement, there was otherwise sufficient evidence to establish probable cause. Docket No. 19. Defendants have also filed a Motion for Discovery requesting additional discovery. Docket No. 13.
In April 2000, Maine Drug Enforcement Agency ("MDEA") Special Agent Eric Audette received information from a Confidential Informant ("CI") that a marijuana growing operation was being conducted at a residence located on the North Turner Road at Box 884 in Turner, Maine, by Roger Mercier and others. Government Ex. 9D. CI has known Mercier for several years and believed it was his/her responsibility to come forward and inform law enforcement about Mercier's drug trafficking.1 Id. The North Turner Road residence was rented by Jennifer Carlin. Id. On separate occasions in April 2000, CI had personally observed Mercier in possession of over fifty pounds of processed marijuana and a few marijuana plants, two to three feet in height, at the residence of Jennifer Carlin. Id. CI informed Agent Audette that Mercier had several people working for him and that Mercier did not live at the North Turner Road address but used it only to grow and distribute marijuana. MDEA knew Mercier to have been convicted twice for marijuana possession and trafficking. Government Ex. 9E. Once the marijuana was processed, Mercier, Carlin, and Kevin (last name unknown) were in charge of distribution. Id. The Turner Road house, CI told Agent Audette, was just one of Mercier's six indoor marijuana cultivation facilities. Id.
For the next six weeks, Special Agent Audette episodically observed the Turner Road residence, noting that the entire second floor of the residence appeared uninhabited and that dormer windows on that floor were completely covered up, preventing light from entering or exiting. Id. During that period of time, an officer with the National Guard Counter Drug Program, familiar with the use of carbon dioxide in indoor marijuana growing operations, also observed a carbon dioxide canister just outside the residence. Id. Based on this information, MDEA Special Agent Tony Milligan obtained Central Maine Power ("CMP") electric power consumption records for the residence. Government. Ex. 9E. Analysis of these CMP records reflected two distinct cycles, approximately three months in length—October through December 1998 and April through July 1999—where consumption was significantly higher than at other times during the period from June 1998 through May 2000.2 Id. These cycles were consistent with the three-month growing cycles typical of an indoor marijuana growing operation. Id.
On May 13, 2000, Special Agents Audette and Milligan went to the public street in front of the residence. Id. In an effort to determine whether there was an abnormally high amount of heat being emitted from the second floor of the Turner Road residence, Agent Milligan stood on the public road, and later in an adjacent driveway, not part of the Carlin premises, aiming the Raytheon Palm 250 thermal imaging camera at the residence and recording the images which it generated.3 Government Ex. 10. Agent Milligan detected an unusually high amount of heat emanating from the second floor dormers of the residence, where the windows had previously been observed to be covered. Id. In Milligan's opinion, the heat emissions were consistent with the use of heat-generating lights for an indoor marijuana growing operation on the second floor. Government Ex. 9E. Other residences in the neighborhood with clapboard construction comparable to the Carlin home did not have similar heat loss from second floor dormers. Id.
Special Agents Audette and Milligan thereafter prepared affidavits as part of an application to obtain a search warrant of Defendants' residence. Government Exs. 9D and 9E. On May 15, 2000, a search warrant was issued by Maine District Court Judge Paul Cote, Jr. Government Ex. 9F. On May 16, 2000, during the search of the residence pursuant to the warrant, the officers found, among other things, a marijuana growing operation.
The Fourth Amendment protects an individual's reasonable expectation of privacy against intrusion by the government. The test for determination of a reasonable expectation of privacy is twofold: (1) the defendant manifests an actual, subjective expectation of privacy; and (2) the expectation is one that society is prepared to recognize as legitimate. California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Defendants argue that the use of a thermal imaging device without a warrant violates their right to be free from unreasonable search. The Government responds that the use of a thermal imaging device is not a search within the meaning of the Fourth Amendment.
The issue of whether use of a thermal imaging device constitutes a search within the meaning of the Fourth Amendment is one of first impression in the First Circuit. All of the circuit courts that have considered the issue have concluded that the use of a thermal imaging device is not a search within the meaning of the Fourth Amendment. See United States v. Kyllo, 190 F.3d 1041 (9th Cir.1999), cert. granted, 530 U.S. 1305, 121 S.Ct. 29, 147 L.Ed.2d 1052 (2000); United States v. Depew, 210 F.3d 1061, 1066 (9th Cir.2000); United States v. Myers, 46 F.3d 668, 669-70 (7th Cir.), cert. denied, 516 U.S. 879, 116 S.Ct. 213, 133 L.Ed.2d 144 (1995); United States v. 15324 County Highway E., 219 F.3d 602, 604-05 (7th Cir.2000); United States v. Ishmael, 48 F.3d 850, 853 (5th Cir.), cert. denied, 516 U.S. 818, 116 S.Ct. 74, 75, 133 L.Ed.2d 34 (1995); United States v. Robinson, 62 F.3d 1325, 1328-30 (11th Cir.1995), cert denied, 517 U.S. 1220, 116 S.Ct. 1848, 134 L.Ed.2d 949 (1996); United States v. Ford, 34 F.3d 992, 995-97 (11th Cir.1994); United States v. Pinson, 24 F.3d 1056, 1058-59 (8th Cir.), cert. denied, 513 U.S. 1057, 115 S.Ct. 664, 130 L.Ed.2d 598 (1994). In identifying the privacy interest at stake, several courts have focused on the thing actually searched—here, the heat emanating from the residence—rather than on the privacy interest in the activities inside the residence. Those courts have held that the thermal imager simply measures surface heat, in which there is no reasonable expectation of privacy, and that the information gathered "`is neither sensitive or personal, nor [revealing of] the specific activities within the ... home.'" Kyllo, 190 F.3d at 1046-47 (quoting Ford, 34 F.3d at 997); see also Myers, 46 F.3d at 669-70; Robinson, 62 F.3d at 1328-30. Other courts, while finding that the defendant may have a subjective privacy expectation in the site of the illicit activity, have held that the privacy interest identified is not one that society is prepared to accept as reasonable. See Ishmael, 48 F.3d at 855; Myers, 46 F.3d at 669-70; Pinson, 24 F.3d at 1058-59.
Defendants rely on the analysis in United States v. Cusumano, 67 F.3d 1497 (10th Cir.1995) and United States v. Elkins, 95 F.Supp.2d 796 (W.D.Tenn.2000). When faced with the issue, both courts concluded that the use of a thermal imaging device was an unconstitutional search reasoning that the pertinent inquiry is not whether the defendant retains an expectation of privacy in the heat waste generated from the home but, rather, whether there is an expectation of privacy in the heat signatures of the activities inside the home. Defendants concede, however, that the Cusumano decision was vacated when the Tenth Circuit issued its en banc decision holding that the subject warrant was supported by probable cause without considering the results of the thermal image camera and that it was, therefore, unnecessary to decide the constitutionality of the thermal imager's use. United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996)(en banc). This Court is not persuaded by the analysis in the first, later vacated Cusumano opinion or the Elkins opinion.
The Raytheon Palm 250 thermal imager detects and illustrates temperature differences on the surface of the residence without revealing activities inside the home.4 The interior activities were not visible because the thermal imager used by Agent Milligan does not enable him to see through windows or walls. Government Ex. 9I. The Court holds that Defendants have no reasonable expectation of privacy in the heat emanating from their residence and, thus, the agent's use of the Raytheon Palm 250 thermal imaging device was not a search within the meaning of the Fourth Amendment.
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