Lead Opinion
A state court search warrant authorized aerial use of a thermal imaging device to detect excess heat emanating from a home owned by Mohammed Kattaria. When the thermal imaging results were consistent with an indoor marijuana grow operation, police obtained and executed three warrants to enter and search homes owned by Kattaria. The searches uncovered 548 marijuana plants, bags of harvested marijuana, and other incriminating evidence. Kattaria was charged in a nine-count superseding indictment. After the district court
Kattaria appealed, and a panel of this court affirmed. United States v. Kattaria,
Kattaria petitioned for rehearing en banc, arguing that the panel’s first reason for upholding the thermal imaging warrant was contrary to Kyllo and a decision of the Ninth Circuit applying Kyllo. See United States v. Huggins,
I. Probable Cause for the Warrant Searches.
On May 6, 2004, Special Agent Michael Perry of the Minnesota Bureau of Criminal Apprehension applied to Ramsey County District Court for a warrant to search the residence located at 1814 Malvern Street in Lauderdale, Minnesota. Perry’s affidavit stated that the search would be for a single type of “property”— “An excess amount of heat emitting from the residence and garage relative to comparable structured in the same neighborhood” — and would be conducted at night in a specified manner:
Your Affiant[ ] will utilize the Minnesota State Patrol and their aircraft mounted thermal imagery unit on the residence located at 1814 Malvern Street, and any out buildings to include the garage.... Your Affiant will utilize Captain Mark Dunaski of the Minnesota State Patrol, who has been trained and certified by the Drug Enforcement Administration [and] has used thermal imagery equipment for eleven years in the course of his law enforcement duties, including the detection of indoor marijuana growing operations.
In support of the application, Perry averred that in March 2004 a cooperating defendant (CD) reported that Kattaria was an indoor marijuana grower. The affidavit further recited: the CD had known Katta-ria for about ten years, occasionally smoked marijuana with Kattaria, and knew Kattaria “has had a lot of trouble with police in the past.” The CD had visited the 1814 Malvern residence in 2002, when Kattaria showed the CD an indoor marijuana grow operation in the basement and offered to rent the residence to the CD. The CD identified Kattaria from a driver’s license photo. A criminal history check by Perry revealed a 1997 arrest and conviction for possession and sale of marijuana and amphetamine and possession of a firearm, a 2000 arrest for sale of marijuana, and a 2003 arrest for fleeing a police officer. The affidavit then set forth the results of Perry’s review of utility company records: between November 2003 and April 2004, the residence at 1814 Malvern consumed between 1890 and 2213 kilowatt hours of electricity per month, while neighboring residences of comparable size consumed between 63 and 811 kilowatt hours the same time period. Perry averred that he had driven past the residence numerous times, observing drawn blinds and electrical items that would explain the
A state district court judge issued a warrant authorizing a nighttime search for comparatively excessive amount of heat emitting from the residence. The warrant executed by an aerial search the night May 7, using a forward looking infrared device. See generally United States v. Olson,
On appeal, Kattaria attacks all four warrants, but he focuses on the thermal imaging warrant because the later three war-were supported by a considerably greater showing of probable cause, includ-the results of the thermal imaging. asserts that the district court erred in concluding that the first warrant was supported by probable cause because Perry’s affidavit contained no statement as to the reliability, the CD’s observation of a operation in Kattaria’s basement in was uncorroborated and stale, and affidavit inaccurately recited that Kat-taria’s 1997 conviction included possession a firearm. He argues that the results of unconstitutional thermal imaging search may not be used to validate the later search warrants. When stale information, inaccurate information, and information from an unreliable informant are removed, he contends, there was no proba-cause to support any of the four warrants.
We conclude that the initial thermal imaging search was supported by traditional probable cause, that is, a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates,
In arguing that the state court cause, emphasizes that Agent Perry’s first affidavit relied on stale information from a CD whose reliability was not established. Probable cause must exist at the time a warrant issues. Here, Perry applied for the thermal imaging warrant two months after the CD reported seeing a marijuana grow operation in Kattaria’s basement two years earlier. Though quite dated, the CD’s information provided the impetus for further investigation. Agent Perry checked Kattaria’s criminal history, which corroborated one aspect of the CD’s information and revealed that Kattaria had previously been convicted of marijuana trafficking. More significantly, Perry’s check of utility records showed recent, abnormally high electric power consumption. Perry’s affidavit explained that the indoor cultivation of marijuana requires high heat and humidity and the use of high intensity lights. Thus, the electric power consumption data, coupled with Kattaria’s criminal history, provided evidence of continuing criminal activity that compensated for Perry’s lack of information about the CD’s reliability. See Olson,
Like the district court, we conclude that Agent Perry’s supporting affidavit provided the issuing judge a “substantial basis” to conclude that probable cause existed to issue the initial thermal imaging warrant. The affidavits supporting the three later warrants, which included the thermal imaging results from 1814 Malvern and additional facts obtained by Perry’s on-going investigation, likewise provided sufficient probable cause to issue warrants authorizing physical searches of three residences owned by Kattaria. Thus, the motion to suppress the fruits of the warrant searches was properly denied.
II. Denial of a Franks Hearing.
In Franks, the Supreme Court emphasized the presumptive validity of a warrant affidavit but held that:
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.
Kattaria filed objections to both rulings, arguing that he was entitled to a Franks hearing because the May 6 thermal imaging warrant affidavit was “misleading” in reciting that Perry checked the electric power consumption records in “late May.” The district court overruled that objection and, after Kattaria pleaded guilty, denied renewed request for a Franks hearing. appeal, Kattaria’s initial brief raised only the issue of the district court’s denial his motion to suppress. Only in his reply brief did Kattaria argue that the district court abused its discretion in deny-a Franks hearing, urging a remand for purpose. The panel declined to consider the issue in part because it was not timely raised on appeal. In responding to
Kattaria argues that the record establishes two deliberate falsehoods in the warrant affidavits that entitle him to a Franks hearing: first, the affidavits stated that the CD observed marijuana growing in the basement of 1814 Malvern in 2002, whereas Perry stated that the CD made the visit in 2000 in an informal synopsis of the case he prepared some months later for federal prosecutors; second, Perry admitted at the suppression hearing that the affidavits misrepresented Kattaria’s criminal history by stating that his 1997 drug conviction included possession of a firearm.
Regarding the mistaken recitation of a firearm conviction, the government explained that Perry relied on a National Crime Information Center report which inaccurately stated that- Kattaria had a prior conviction “for marijuana/poss firearm.” Perry’s use of that information was not a deliberate or reckless falsehood. “Allegations of negligence or innocent mistake are insufficient.” Franks,
Regarding when the CD saw marijuana growing in the basement at 1814 Malvern, Perry averred under oath in May 2004 that the CD reported seeing a grow operation in 2002. Many months later, Perry wrote in an informal memo that the CD reported visiting 1814 Malvern in 2000. The district court had ample reason to credit the formal, sworn warrant affidavits prepared shortly after Perry interviewed the CD, rather than an informal memo prepared many months later. More importantly, Kattaria offered no reason to believe that the information- in the affidavits was a deliberate or reckless falsehood. Mere allegations of-deliberate or reckless falsehoods are insufficient. United States v. Mathison,
III. Good Faith under Leon
Evidence seized pursuant to a warrant that is later determined to be invalid will'TOf be suppressed if the officers executing the warrant acted in good faith reliance dn its validity. Suppression is required only if (1) the issuing judge was misled by the affiant’s knowing or reckless false statement, a contention we have rejected in Part II, (2) the issuing judge wholly abandoned his judicial role, which is not an issue in this case, (3) the supporting affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” or (4) the warrant was “so facially deficient” that the executing officer could
The record demonstrates that Agent Perry and Captain Dunaski relied in good faith on the validity of the thermal imaging warrant. Perry’s supporting affidavit was based on information provided by a CD with first hand knowledge of the facts reported. “There is an inherent indicia of reliability in the richness and detail of a first hand observation.” United States v. Watford,
The three subsequent warrants were supported by affidavits setting forth the results of the thermal imaging, which further corroborated the CD’s information, and additional information gathered by Agent Perry’s on-going investigation. It is not objectively unreasonable to execute a warrant “where there was evidence to corroborate [an informant’s] tip and where an independent magistrate had found that the affidavit stated probable cause.” United States v. Koons,
For the foregoing reasons, we affirm the denial of Kattaria’s motion to suppress and motion for a Franks hearing. Kattaria also appealed his sentence, arguing it was unreasonable, but he did not petition for rehearing en banc of the panel’s adverse resolution of that issue. We vacated the entire panel opinion in granting rehearing en banc. We now affirm the sentence for the reasons stated in the panel opinion. Kattaria,
Notes
. The HONORABLE DONOVAN W. FRANK, United States District Judge for the District of Minnesota, adopting the Report and Recommendation of the BOYLAN, United States Magistrate Judge for the District of Minnesota.
Concurrence Opinion
concurring. .
I concur in the court’s opinion. I write separately to reaffirm, with one modification, Part I.A of the panel opinion. The panel there concluded “that the same Fourth Amendment reasonable suspicion standard that applies to Terry investigative stops should apply to the issuance of a purely investigative warrant to conduct a limited thermal imaging search from well outside the home.” United States v. Kat-taria,
The Fourth Amendment explicitly provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The issue is whether the probable cause required to obtain a warrant may ever vary based on the nature of the property being searched, the purpose of the search, and the extent of the physical intrusion into the home that the search will entail. This is an important issue of constitutional law. See, e.g., Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. Pitt. L.Rev. 227, 243-56 (1984); Joseph D. Gra-no, Probable Cause and Common Sense: A Reply to the Critics of Illinois v. Gates, 17 U. Mich. J.L. Reform 465, 501-06 (1984). The Supreme Court has spoken inconsistently on the issue in various contexts. In this context, I think it is properly viewed as an open issue.
Viewing the issue historically supports the panel’s position. The architects of the Fourth Amendment intended to prohibit general warrants and writs of assistance that had been used, in England, to punish political dissenters and, in the colonies, to collect unpopular taxes.
Early Supreme Court cases likewise construed the term “probable cause” in two 1799 statutes as meaning reasonable cause or suspicion. See Locke v. United States,
In Kyllo, overruling a majority of the circuit courts that had considered the issue, the Court held that the Fourth Amendment requires police investigators to obtain a warrant to conduct an aerial thermal imaging search of a private residence. But the Court did not discuss what showing of probable cause is constitutionally required to obtain this warrant. When I contrast Kyllo with the Court’s decision in Camara v. Municipal Court,
In Camara, the Court overruled Frank v. Maryland,
At the same time, other decisions relaxed the traditional probable cause standard in limited contexts where the Court concluded that a warrant was not necessary and that the “special needs” of government, balanced against the nature of the privacy interests affected by the particular search or seizure, made a different standard reasonable under the circumstances. See New Jersey v. T.L.O.,
In this environment, it is not surprising that the Court has characterized Ca-mara — which specifically required warrants issued under a modified probable cause standard — as an exception to traditional probable cause that is limited to “administrative search warrants.” Griffin v. Wisconsin,
Griffin held only that, under the Wisconsin regime at issue, probation authorities did not need a warrant or probable cause to search a probationer’s home.
I cannot predict how the Supreme Court would decide this difficult issue. But given the conflicting signals in the historical record and in the Court’s recent decisions, I do not read Griffin and Kyllo as categorically holding that the probable cause required to obtain a warrant for criminal investigative purposes can never be “context dependent,” that is, affected by the nature of the property to be searched, the manner of search, and the intrusiveness the search will entail. Certainly, there are strong reasons for applying a “single, familiar standard ... to guide police officers.” Dunaway v. New York,
Special Agent Perry wished to conduct thermal imaging as part of his investigation of the suspected indoor growing of marijuana. He applied for a warrant for that specific purpose, as Kyllo required. When the thermal imaging results confirmed the likely presence of an indoor grow operation, Perry applied for three warrants to conduct far more intrusive physical searches of Kattaria’s properties, submitting supporting affidavits that included the thermal imaging results from 1814 Malvern plus additional facts from his
On further reflection, I have concluded that the panel was unwise to borrow the concept of “reasonable suspicion” to reflect the quantum of probable cause that should be required in this situation. Reasonable suspicion is not focused to the task at hand, and it has never been applied to the warrant-issuing process. Rather, the question for the issuing magistrate (and reviewing courts) when considering an application like Agent Perry’s initial warrant affidavit should be whether there is probable cause to believe that search of specific property — the heat being emitted from a home — in a specific manner — by exterior thermal imaging — for purely investigative purposes will uncover evidence
Following the Supreme Court’s decision in Kyllo, a panel of the Ninth Circuit concluded without extensive analysis that “the quantum of probable cause necessary to justify a thermal imaging search does not differ from that necessary to justify a physical search.” United States v. Huggins,
. Two leading English cases were Wilkes v. Wood, 98 Eng. Rep. 489 (C.P.1763), and Entick v. Carrington, 95 Eng. Rep. 807 (K.B. 1765), trespass actions attacking the Crown's use of general warrants to combat seditious libel. The courts held the warrants invalid for lack of oath or affirmation and particularized cause for suspicion without discussing the level of cause required to justify a warrant search. See Jacob W. Landynski, Search and Seizure and the Supreme Court 28-30 (1966). The writ of assistance was valid for the life of the sovereign and allowed a constable to seize "prohibited or uncustomed goods” by breaking and entering houses, shops, and other buildings. In a well publicized 1761 case, James a “Custom house officers [to] enter our houses when they please ... bare suspicion without oath is sufficient....” Again, the quantum of cause that should be required was not addressed. See Telford Taylor, Two Studies in Constitutional Interpretation 24-41 (1969).
. Noted seventeenth-century jurist Matthew Hale “used the terms 'suspicion,' 'probable cause of suspicion,' and ‘reasonable cause of suspicion’ interchangeably,” demanding only a judicial finding of “some basis for suspecting a particular individual.” Grano, supra note 1, at 480-81; see Landynski, supra note 1, at 27 n. 34; Alschuler, supra, at 253.
. It may be worth noting that, prior to the decision in Warden v. Hayden,