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United States v. Kyllo
Citations: 140 F.3d 1249; 98 Cal. Daily Op. Serv. 2562; 98 Daily Journal DAR 3517; 1998 U.S. App. LEXIS 6829; 1998 WL 156527Docket: No. 96-30333
Court: Court of Appeals for the Ninth Circuit; April 7, 1998; Federal Appellate Court
Based on thermal imaging readings, high power usage at Danny Lee Kyllo's residence, and information from an informant, federal law enforcement obtained a search warrant for Kyllo's home. The search uncovered an indoor marijuana cultivation operation, weapons, and drug paraphernalia. Kyllo's motion to suppress the evidence was denied by the district court, prompting an appeal. The appellate court vacated his conviction and remanded for further proceedings, where the motion to suppress was again denied. The case raises a significant question regarding whether thermal imaging constitutes a "search" under the Fourth Amendment. The court concluded that it does. During the investigation, Bureau of Land Management Agent William Elliott gathered information linking Kyllo to marijuana activities, including past arrests and statements made to an informant. Elliott reviewed Kyllo's utility records, which indicated abnormal electricity usage, and requested thermal imaging from Staff Sergeant Daniel Haas. The thermal imager detected unusually high heat levels in Kyllo's home, suggesting the use of high-intensity lights for marijuana growth. This information led Elliott to obtain a search warrant from a federal magistrate, resulting in the discovery of the marijuana operation and subsequent indictment of Kyllo for manufacturing marijuana under 21 U.S.C. § 841(a)(1). The district court denied Kyllo’s motion to suppress evidence after a suppression hearing. Kyllo subsequently pled guilty and received a 63-month sentence. He appealed the denial of his suppression motion, and the appellate court found that while part of the affidavit regarding Kyllo's electricity usage was false, the district court did not err in determining that the false statements were not made knowingly or recklessly. Consequently, the magistrate judge correctly considered the affidavit in assessing probable cause for the warrant. The appellate court remanded the case for an evidentiary hearing to evaluate the Agema's capabilities and to determine if the omission of Kyllo’s divorce from the affidavit was made knowingly or recklessly. The district court concluded that while the omission was misleading, it was not knowingly false or reckless. The appellate court reviewed this finding under the clearly erroneous standard and found no evidence indicating that Elliott or the law enforcement officers were aware of Kyllo's divorce. Thus, the omission was appropriately considered in issuing the warrant. After the evidentiary hearing, the district court determined that the Agema did not intrude on privacy or reveal private details, only capturing heat emitted from the home. It concluded that the warrantless search using the Agema was permissible, establishing probable cause. Kyllo contends on appeal that the use of the thermal imaging scanner constituted a search under the Fourth Amendment, necessitating a warrant, and argues the district court erred regarding the affidavit's omissions. Kyllo argues that the magistrate improperly considered the findings from a warrantless search using a thermal imaging device and omissions in the affidavit by Elliott when determining probable cause for the search warrant, claiming that the evidence obtained should be suppressed. Kyllo asserts that the use of the thermal imaging device constituted a "search" under the Fourth Amendment, which protects against unreasonable searches and seizures. The validity of warrantless searches is reviewed de novo, while factual findings regarding the device's capabilities are reviewed for clear error. The Fourth Amendment establishes the right to privacy in one's home, necessitating a two-prong test from Katz v. United States to evaluate whether a warrantless search violated a legitimate expectation of privacy. The first prong examines if the defendant had a subjective expectation of privacy, which Kyllo argues he did, as activities within his home are inherently private. The argument references the precedent set in California v. Ciraolo, where the Supreme Court recognized a subjective expectation of privacy despite ultimately ruling the search constitutional. Kyllo distinguishes his case from other circuits that liken excess heat from homes to trash left outside, which has been deemed not to warrant a reasonable expectation of privacy. Instead, Kyllo contends the thermal imager's purpose is to detect heat signatures of activities within the home, thus preserving his expectation of privacy regarding those internal activities. Kyllo's position is further supported by cases that reject the "heat waste" analogy, emphasizing that the relevant inquiry should focus on the privacy of activities within the home rather than the heat emitted from it. The key issue is whether Kyllo's expectation of privacy regarding heat signatures in his home is reasonable under societal standards. The Supreme Court has affirmed that individuals have a strong expectation of privacy within their residences, emphasizing that the core of the Fourth Amendment protects against unreasonable governmental intrusion in the home. Consequently, warrantless searches are generally deemed presumptively unreasonable unless exigent circumstances exist. Prior cases involving thermal imaging have shown varying interpretations, where some courts found that thermal images did not expose enough intimate details to raise constitutional issues due to the technical limitations of the devices used. The analysis of Kyllo's case focuses on the intrusiveness of the thermal imager, specifically the Agema Thermovision 210, which was assessed during an evidentiary hearing. Expert testimony highlighted the camera's capabilities, demonstrating that it could detect activities through glass and identify individuals inside a home. Notably, a videotape presented by Kyllo's expert illustrated the Agema's ability to reveal a person's movements inside a vehicle with tinted windows and within a house. Government witness Bill Martin acknowledged that thermal imagers could detect activity in darkened rooms if windows were open, indicating the potential for significant privacy intrusions. This raises critical questions about the balance between technological capabilities and constitutional protections against unreasonable searches. Mr. Martin testified about the physiological applications of thermal imagers, specifically the Agema Thermovision 210, which can detect temperature differences as small as 0.9°F and identify objects or people in darkness from up to 1500 feet away. The device can operate in various lighting conditions and temperatures, distinguishing between animals and humans. The court concluded that the thermal imager's capabilities intrude on privacy rights protected by the Fourth Amendment, as it allows the government to monitor domestic activities generating heat, stripping away the essential security of the home from arbitrary surveillance. Despite the Agema 210's limitations, advancements in thermal imaging technology raise concerns about privacy violations, even for mundane activities, as evidenced by previous cases where thermal imagers detected household appliances. The court emphasized that a search is a search, regardless of the value of what is uncovered, and cited precedents affirming that revealing any detail about the interior of a home can breach Fourth Amendment rights. Consequently, the court found that using a thermal imager without a warrant constitutes a violation of privacy rights. Since the district court did not determine whether a search warrant could be issued based solely on other evidence without the thermal imager's data, the case was remanded for further consideration. The district court is instructed to evaluate the relevance of the affidavit information regarding electricity use and personal relationships in establishing probable cause for a warrant. The ruling was reversed and remanded.