US v. Ishmael, 9:93CR22.

• Court: United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
• Citation: 843 F. Supp. 205
• Docket Number: No. 9:93CR22.,9:93CR22.
• Parties: UNITED STATES of America v. Rohn Martin ISHMAEL, Debra K. Ishmael.
• Decision Date: 11 February 1994

843 F. Supp. 205

UNITED STATES of America
v.
Rohn Martin ISHMAEL, Debra K. Ishmael.

No. 9:93CR22.

United States District Court, E.D. Texas, Lufkin Division.

February 11, 1994.

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COPYRIGHT MATERIAL OMITTED

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George Patrick Black, Federal Public Defender, Tyler, TX, for Rohn Martin Ishmael

Richard Lee Moore, Asst. U.S. Atty., Tyler, TX, for U.S.

CORRECTED ORDER ON DEFENDANTS' MOTIONS TO SUPPRESS

ROBERT M. PARKER, Chief Judge.

On December 16, 1993, the Motions to Suppress Evidence filed by Defendants Rohn Martin Ishmael and Debra K. Ishmael came on for hearing. The motions allege identical grounds for suppression and will be treated as a single motion.

The question before the Court concerns the limitation, if any, on the Government's ability to use thermal imaging devices to detect concealed underground illegal activity. The issue was spawned by the tension created between the right to privacy on the one

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hand and our society's rapidly evolving technological sophistication on the other. Left unchecked, technology has the potential to restrict, as a practical matter, the right to privacy to the confines of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). We must take care that the war on drugs not count as one of its victims fundamental rights. The benefits to our society of safeguarding the right to privacy is such that the courts must say that there is a limit to the use of technological weapons, even in the war on drugs

FACTS

In late summer of 1992, Drug Enforcement Administration (DEA) Task Force Officer (TFO) Paul Black received information that a confidential witness had delivered large quantities of concrete remix to Defendant Rohn Ishmael at a secluded wooded rural location in Nacogdoches County, Texas and had been paid in cash. The witness had observed that Defendant was mixing the concrete remix himself and driving to a deep ravine in another area on the property where a construction project was underway. The witness also observed that Rohn Ishmael appeared nervous or suspicious and did not want anyone to go down to the construction site. Black and another TFO entered the property in September of 1992 and conducted surveillance, which revealed two mobile homes, some large plastic tanks, and a goose neck trailer containing numerous sections of PVC pipe, but no illegal activity.

About a year later, on August 9, 1993, TFO Black and three other law enforcement officers went back to the property. On this trip the officers followed a roughly built road from the mobile home at the front of the property to a large dug out next to a two acre pond. There they saw a small quantity of concrete remix, a dump truck and a concrete mixer that had been parked in the dug out with weeds growing up around them.

The next day, TFO Black determined, based on various computerized data banks, that Rohn Ishmael's criminal history included possession, distribution, and growing of marijuana. Black also determined that the property under surveillance was part of a 130 acre tract, which Rohn and Debra Ishmael purchased in 1991.

On August 13, 1993, law enforcement officers flew over the property and took numerous photographs. These photographs show a mobile home near the road frontage and a large steel building (40' × 80' × 15') about 200-300 yards behind the mobile home, next to the two acre pond. Also four large tanks and numerous vehicles and trailers were observed.

Surveillance officers entered the property on August 18, 1993 and again on August 19, 1993. On these trips they observed an exhaust fan near the top of the building running continuously, and a water pump and pipes running from the pond to the building at an angle that the officers believed would allow the pipe to enter the building approximately ten feet below the foundation. TFO Black concluded that Ishmael had built a basement under the building, which would account for the large amount of concrete he purchased in excess of that required to build a six inch slab under the building.

On August 19, 1993, at 4:00 a.m., law enforcement officers flew over the property at approximately 1000-1500 feet in a helicopter equipped with a thermal imager, referred to as a Forward Looking Infra Red Device (FLIR). The device records in visual images the differences in temperature on the surfaces of objects. The video tape made during the flyover shows that the metal building and a nearby brush pile were considerably hotter that the surrounding land and woods.

On September 16, 1993, law enforcement agents again entered the property, this time with a handheld thermal imager. The tape made also shows that the metal building and the brush pile were hotter than the surrounding area. The officers observed pressurized water flowing from the building into the pond on this trip.

TFO Black compiled a list of purchases and phone calls made by Rohn Ishmael which indicated that he had made extensive purchases of construction equipment and supplies, electrical supplies, and farm and garden supplies during 1991-1993. Black also submitted electrical use records for the

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mobile home and the metal building that showed increased use of electricity beginning in June 1993 in both structures. Electrical usage in the building exceeded that of the mobile home during June and July, but was less than the household usage in August. Black's investigation revealed that the Rohn Ishmael's business, R & M Equipment Rental, did not have a local telephone listing. Officers that had entered the property to conduct surveillance on seven different occasions (some of which were at night) had not seen any signs, vehicle traffic or people around the building, from which they concluded that the building was not the site of a legitimate business operation

Based on the above information, TFO Black swore out an affidavit which formed the basis of the magistrate's finding of probable cause for a warrant to search Rohn and Debra Ishmael's property. That search warrant was executed on September 29, 1993, and revealed a marijuana growing operation in the basement of the metal building. The defendants have moved to suppress all the items seized in the search, which included, among other things, 770 marijuana plants and some fire arms.

BURDEN OF PROOF

The movants must first establish a reasonable expectation of privacy and that the search and seizure took place without a search warrant. Then the burden of proof shifts to the government to establish that an exception to the search warrant requirement was applicable and that the search and seizure was, in fact, a reasonable one. United States v. Bachner, 706 F.2d 1121, 1126 (11th Cir.1983); United States v. Harris, 479 F.2d 508, 509 (5th Cir.1973).

In this case, the challenged thermal imaging tapes must first be analyzed to determine whether Defendants' Fourth Amendment rights were violated. If they were, the Court will then determine whether the warrant and the resulting search can survive without the information gathered with the thermal imaging devices.

THERMAL IMAGING

The alleged probable cause for the search warrant was obtained by utilizing thermal imaging equipment which detected heat from the Defendants' buildings and property without a search warrant.

A. Defendants' Burden

Defendants begin by asserting that they had a reasonable expectation of privacy in the metal building, and in their property surrounding the metal building. Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) sets out a two part inquiry to determine whether there is a constitutionally protected expectation of privacy in a particular area. First, has the individual manifested a subjective expectation of privacy in the object of the challenged search? The Court finds that the defendants did manifest such an expectation, by locating the building on a piece of secluded wooded rural property, in a deep ravine, out of sight of the nearby county road. Further, the affidavit noted that Rohn Ishmael bought and mixed and transported his own concrete, and constructed the basement and slab at a higher cost than a local contractor would have charged, so that others would not know about the basement under the building.

The second inquiry is whether society is willing to recognize that expectation as reasonable. The test of legitimacy is not whether the individual chooses to conceal his activity, but instead "whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment." Oliver v. United States, 466 U.S. 170, 181-183, 104 S.Ct. 1735, 1742-1744, 80 L.Ed.2d 214 (1984).

Defendants argue that the area in and around the building is within the curtilage of the their home. Although it is well established that an individual has a reasonable expectation of privacy in the curtilage of his home, there are no bright lines that determine where the curtilage of a home ends. The Supreme Court has enumerated four factors that the Court should consider in drawing the parameters of a claimed curtilage. United States v. Dunn, 480 U.S. 294,

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107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). First, the Court must consider the proximity of the area to the home. Here, the metal building was about 200-300 yards from the mobile home. Second, the building was not within an enclosure surrounding the home, nor was there an enclosure around the mobile home that excluded the building. Third, the nature and uses to...