US v. Kyllo

• Decision Date: 05 February 1993
• Docket Number: CR No. 92-51-FR.
• Citation: 809 F. Supp. 787
• Parties: UNITED STATES of America, Plaintiff, v. Danny KYLLO, Defendant.
• Court: U.S. District Court — District of Oregon

809 F. Supp. 787

UNITED STATES of America, Plaintiff, v. Danny KYLLO, Defendant.

CR No. 92-51-FR.

United States District Court, D. Oregon.

December 4, 1992.

Order on Reconsideration February 5, 1993.

Charles H. Turner, U.S. Atty., Robert G. Thomson, Asst. U.S. Atty., Portland, OR, for plaintiff.

Kenneth Lerner, Portland, OR, for defendant.

OPINION

FRYE, District Judge:

The matter before the court is the motion of the defendant, Danny Kyllo, to suppress evidence (# 30) on the following three grounds: (1) law enforcement officers lacked probable cause to search his home and misled the magistrate judge with deliberate false statements and omissions of fact in order to obtain a search warrant; (2) the use of a thermal imaging device constituted an impermissible search; and (3) the use of a National Guardsman to operate the thermal imaging device was unlawful.

BACKGROUND

In 1990, a task force of law enforcement officers began investigating Sam Shook for the crime of conspiring to grow and to distribute marijuana. The investigation of Sam Shook was conducted jointly by several agencies, including the United States Department of Interior, the Bureau of Land Management, the Tillamook County Sheriff's Department, and the Oregon State Police Bureau. In July, 1991, four search warrants supported by the sworn affidavit of Special Agent William Elliott of the Bureau of Land Management were issued by United States Magistrate Judge George E. Juba and subsequently executed by the task force.

After these search warrants had been executed and the fruits of the executions of the search warrant had been analyzed, the investigation focused on Tova Shook, the daughter of Sam Shook. On January 16, 1992, between 3:30 and 4:00 a.m., Special Agent Elliott took Sergeant Daniel Haas of the Oregon National Guard to the homes of Kyllo and Shook, where he used a thermal imaging device to detect the level of heat within the homes. Magistrate Judge Juba then issued two more warrants based on an affidavit prepared by Special Agent Elliott, to search the residence occupied by Tova Shook at 890 Rhododendron Drive, Florence, Oregon and the residence occupied by Kyllo at 878 Rhododendron Drive, Florence, Oregon. The applications for these two search warrants were patterned in a fashion similar to the affidavits for the four prior search warrants.

When the search warrants were executed, law enforcement officers found an indoor marijuana "grow" involving more than one hundred marijuana plants located in the residence at 878 Rhododendron Drive, and dried marijuana and indications that marijuana was being distributed at the residence located at 890 Rhododendron Drive.

On February 20, 1992, a federal grand jury indicted Kyllo for the crime of manufacturing marijuana based on the evidence located in his residence. On February 24, 1992, Kyllo entered a plea of not guilty. The matter was set for trial. On May 18, 1992, Kyllo filed this motion to suppress evidence.

On June 10, 1992, the court granted Kyllo's request for a Franks hearing, limiting the evidence to be received and the issues to be addressed to the statements claimed by Kyllo to be false as to the power usage at the residence located at 878 Rhododendron Drive. The court found that Kyllo had made a substantial showing that the part of the sworn statement of Special Agent Elliott which related to the power usage at the residence located at 878 Rhododendron Drive was made with reckless disregard for the truth, and that the part of the statement made with reckless disregard for the truth was essential to the determination of the magistrate judge that there was probable cause to issue the search warrant.

CONTENTIONS OF THE PARTIES

Kyllo first contends that Magistrate Judge Juba was misled by deliberate false statements and omissions into issuing the warrant to search Kyllo's residence. Kyllo asserts that if the false statements were corrected or the false statements were excised from the affidavit in support of the search warrant, there would be no probable cause to issue the search warrant. Kyllo also contends that the warrantless use by law enforcement officers of a thermal imaging device constituted an unreasonable search and seizure, and that the use of the National Guard in civilian law enforcement is unlawful.

The government contends that none of the statements of Special Agent Elliott were false or misleading, and the information that Special Agent Elliott provided portrayed the facts as he believed them to be; that the use of a thermal imaging device does not constitute "a search;" and that the assistance of the National Guard was not a violation of the prohibition on military involvement in civilian law enforcement.

APPLICABLE LAW

1. Validity of the Search Warrant

In Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978), the Supreme Court stated:

Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

If the court determines, as a result of a Franks hearing, that false statements were deliberately or recklessly included in the affidavit and that "the affidavit is insufficient to establish probable cause without the false material, the court must set aside the search warrant and suppress the fruits of the search." United States v. Burnes, 816 F.2d 1354, 1357 (9th Cir.1987).

This court granted to Kyllo a Franks hearing limited to the issue of whether the following statements of Special Agent Elliott as to the power that was used at the residence located at 878 Rhododendron Drive were made with reckless disregard for the truth in the affidavit that he prepared in support of the search warrant:

A subpoena for the power usage served on Central Lincoln PUD indicated the address of 878 Rhododendron Dr, Florence was in the name of Danny Kyllo. These records show that the power usage for the residence at 878 Rhododendron Dr. during the months of May through December held a usage that ranged from 730 Kilowatt Hours in the summer months gradually building to a high of 2206 Kilowatt Hours in winter. ....

The Portland General Electric Company has developed a guide for estimating appropriate power usage relative to square footage, type of heating and accessories, and the number of people who occupy the residence. Using the Tax assessors report previously mentioned herein, the reported square footage of 540 square feet per each residence would be calculated as follows; The guide indicates a maximum power usage of 1348 KWH for a structure consisting of 1000 square feet, thus a structure of approximately half that square footage should generate a maximum power output of 674 kwh. The difference in maximum KHW's between the guide and the residences would indicate an excessive power usage of 1532 kwh for 878 Rhododendron Dr., and an excessive power usage of 1020 kwh for 890 Rhododendron Dr.

... In studying the power usage consumption for 878 Rhododendron Drive it appears that the power is consistently high, which would indicate that this address is consistent with having a continues sic marijuana grow operation.

Search Warrant Affidavit, pp. 4-5 (references to exhibits omitted).

Kyllo contends that at the evidentiary hearing, Special Agent Elliott deliberately misrepresented the purpose and function of the PGE chart, as well as what the chart actually means. Kyllo argues that Special Agent Elliott persuaded the magistrate judge that his conclusions were objectively made based on scientific facts provided by PGE, even though, according to Kyllo, Special Agent Elliott did not discuss the facts of this case or the PGE chart with anyone at PGE.

Kyllo contends that PGE has never held out its chart as establishing appropriate power usage, maximum power usage, or normal power usage, and that the magistrate judge was led to believe that PGE had done so by Special Agent Elliott in his affidavit. Kyllo contends that Special Agent Elliott took advantage of the magistrate judge's familiarity with Special Agent Elliott's prior applications for search warrants and did not fairly disclose to the magistrate judge the shortcomings of this particular affidavit.

Kyllo further submits that the affiant, Special Agent Elliott, distorted the conclusions that could be drawn from power records by taking one month's power usage out of context and making conclusions about that usage without consultation with any expert or knowledgeable individual in the energy field. Kyllo contends that no one can take an isolated month of power usage and fairly conclude that the usage was excessive because the usage that month was above the monthly average. Kyllo also contends that his monthly average usage of power was actually below the average shown on the PGE chart; that the statistics from which the chart is derived are not adaptable to homes located on the Oregon coast; that the statistics have a built-in bias; and that energy consumption is a function of many individual factors, only one of which is the square footage of the residence, despite the fact that Special Agent Elliott informed the magistrate judge that a smaller house would use proportionately less power.

The government contends that Kyllo has not met his burden of showing that the statements made by Special Agent Elliott in the affidavit in support of the search warrant were deliberately false or made with reckless disregard for the truth. The government contends that the PGE chart used by Special Agent Elliott in his investigation has not been shown to be inaccurate, and that even assuming that the chart was inaccurate, Special Agent Elliott was not reckless in using the chart.

The government contends that...