USA v. Real Property

• Decision Date: 06 July 2000
• Docket Number: No. 99-3190,99-3190
• Citation: 219 F.3d 602
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Real Property Located at 15324 County Highway E, Richland Center, Richland County, Wisconsin, with all appurtenances and improvements thereon, Defendant, Appeal of: Charles J. Acker, Claimant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 602

219 F.3d 602 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Real Property Located at 15324 County Highway E, Richland Center, Richland County, Wisconsin, with all appurtenances and improvements thereon, Defendant, Appeal of: Charles J. Acker, Claimant-Appellant.

No. 99-3190

In the United States Court of Appeals For the Seventh Circuit

Argued March 1, 2000

Decided July 6, 2000

Appeal from the United States District Court for the Western District of Wisconsin. No. 98-C-718-C--Barbara B. Crabb, Judge.

Before Eschbach, Coffey, and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

The year 1984 came and went without the government's transformation into the ubiquitous and all-seeing Big Brother of George Orwell's book. (This, at least, is how everyone but dyed-in-the-wool conspiracy devotees would characterize things.) But, on the other hand, the technologies the government has at its disposal to investigate ordinary citizens become more sophisticated by the day. This case involved thermal imaging technology, which the police used to deduce that Charles J. Acker was running a substantial marijuana operation from the property that is the nominal defendant here. Acker was caught, and in time the government filed a civil action for forfeiture of his property under 21 U.S.C. sec. 881(a)(7). Acker resisted on the ground that the use of thermal imaging constituted a warrantless search. Relying on this court's decision in United States v. Myers, 46 F.3d 668 (7th Cir. 1995), the district court rejected his claim. Even Acker concedes that he must lose if Myers remains good law. We are not persuaded that it should be reconsidered, and we therefore affirm the judgment of the district court.

The underlying facts are typical of these cases. In late 1997, Richland County Deputy Sheriff Rick Wickland received a tip from two confidential informants that Acker was selling large amounts of marijuana. Wickland confirmed that Acker resided at 15324 County Highway E in Richland County, Wisconsin. He next obtained copies of Acker's electric bills for April 1996 through January 1998, and discovered the high usage that usually goes along with indoor cultivation of marijuana.

The next step was a thermal inspection of 15324 County Highway E. Between 1:00 and 1:30 a.m. on March 6, 1998, Wisconsin Department of Narcotics Enforcement Special Agent Peter M. Thelen went to the house. From positions on the road and in a field adjacent to the property, Thelen scanned the residence using a SEEKIR Thermal Imager with an attached 8mm video recorder. He found what he was looking for: the imager showed that large amounts of heat were being vented from the northeast and southeast corners of the basement, and that there was an unexplained heat source under the porch.

Based on those three pieces of information (the CI tips, the utility records, and the thermal imaging results), Wickland obtained a search warrant for Acker's residence. The search yielded packaged marijuana, a triple beam scale, live marijuana plants, 1000 watt lights, box fans, and other materials consistent with a marijuana growing operation. There were three separate "grow" areas in the basement; two of those had exhaust fans that were connected to ducts that vented out the northeast corner of the house. Acker, who was there while the officers executed the warrant, confessed to growing marijuana.

The United States filed the present civil action for forfeiture of the property on October 13, 1998, under 21 U.S.C. sec. 881(a)(7). That statute provides for the forfeiture of property used or intended to be used to commit or facilitate the manufacture, sale, or distribution of a controlled substance. The complaint and warrant of arrest in rem were served on Acker on November 4, 1998. Acker responded immediately with a claim to the property on November 5; he also filed a motion to suppress both the thermal imaging evidence and everything that was collected under the warrant, as well as a motion to dismiss the complaint, on November 25, 1998. With respect to the suppression, he argued that the thermal imaging itself was an unconstitutional warrantless search, and the evidence collected under the warrant represented the fruits of the first violation.

As Acker acknowledges, this court has already had occasion to consider the question "whether thermal imaging is a search within the meaning of the Fourth Amendment." Myers, supra. On facts remarkably similar to those in Acker's case, we concluded that it was not. We found that Myers did not have a reasonable expectation of privacy in the heat emitted from his home, and that even if he did, such an expectation is not one that society would recognize as reasonable. 46 F.3d at 669-70....