United States v. Ishmael ( 1995 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-40159
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
ROHN MARTIN ISHMAEL and
DEBRA K. ISHMAEL,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
(March 15, 1995)
Before REYNALDO R. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
DeMOSS, Circuit Judge:
Based on the readings from a thermal imager, along with other
circumstantial evidence, federal law enforcement officers obtained
a warrant to search the premises of Rohn Martin Ishmael and his
wife, Debra K. Ishmael. The officers executed the warrant and
discovered some firearms and 770 marijuana plants. After being
indicted, the Ishmaels moved to suppress the evidence on the ground
that the warrantless use of the thermal imager was a
constitutionally proscribed search. The district court granted the
Ishmaels' motion to suppress. We now reverse.
I.
The warrant in this case was based upon the following
information: In the late summer of 1992, a confidential source
informed Paul Black, a Drug Enforcement Administration ("DEA")
officer, that he/she had delivered numerous truck loads of concrete
re-mix to the Ishmaels' secluded, rural property in Nacogdoches
County, Texas. The Ishmaels, according to the source, took
inordinate measures to conceal the need for the concrete. Rohn
Ishmael, for example, would manually mix the concrete near the
source's truck and then drive the concrete to another location on
the property. His suspicions aroused, Black entered the property
and saw two mobile homes and a trailer. Black, however, did not
witness any illegal activity.
In August 1993, Black resumed his investigation. He and three
other officers returned to the property and followed a roughly
built road from the front of the property to a steep embankment
where a large hole had been made. They observed around 60 empty
bags of cement, a dump truck and a concrete re-mixer parked near
the hole. The next day, Black investigated Rohn Ishmael's criminal
record and found at least four separate marijuana-related incidents
dating back to 1974, several of which involved the cultivation of
marijuana. Black, along with other DEA officers, then surveyed the
Ishmaels' property by air. They observed a mobile home and a large
steel building, separated by about 200 to 300 yards. The steel
building stood next to a 2-acre pond. Black entered the property
on foot two more times. He discovered that the Ishmaels had built
2
a structure beneath the steel building. The substructure was wired
for electricity and was being fed water from the nearby pond by way
of exposed rubber tubes and a water pump. The substructure also
had an exhaust fan, which Black noticed was continuously running.
Black also observed a nearby pallet containing 100 5-gallon plastic
buckets.
Suspecting that the Ishmaels were cultivating marijuana in the
structure beneath the steel building, the DEA boarded a helicopter
with a thermal imager and flew over the Ishmaels' property at
approximately 500 to 1000 feet. A thermal imager detects
differences in surface temperature of targeted objects and displays
those differences through a viewfinder in varying shades of white
and gray. In other words, a warm object will appear white on the
device's viewfinder, whereas a cool object will appear gray. The
device can record its readings on a standard videocassette. The
DEA's recording of the Ishmaels' property showed that, although the
water entering the substructure was noticeably cool, the water
exiting it was emitting a substantial amount of heat. The
recording additionally showed that the ground adjacent to the
substructure was much warmer than the ground further from the
substructure.
Black then subpoenaed the Ishmaels' telephone records. The
records indicated that the Ishmaels had made numerous calls to
various horticulture shops, two of which appeared on a narcotics
intelligence computer base as suppliers for other marijuana
cultivators. Black also subpoenaed the Ishmaels' electrical
3
utility records. The records showed that the substructure's power
usage was extremely high and far exceeded the mobile home's power
usage.
In September 1993, Black and several other officers again
entered the Ishmaels' property on foot. Using a hand-held thermal
imager, the officers canvassed the perimeter of the steel building
but never entered it. The officers made essentially the same
findings; an unusual amount of heat was emanating from the
substructure and the ground adjacent to it. Black displayed his
recordings to two DEA thermographers, both of whom concluded that
the Ishmaels were illegally cultivating marijuana in the steel
building's substructure. The DEA then used the thermal imager's
readings, along with the wealth of information gathered by Black,
to obtain a warrant to search the steel building and its
substructure on the Ishmaels' property. The officers executed the
warrant two days later and uncovered 770 marijuana plants and
several firearms. After being indicted in October 1993, the
Ishmaels moved to suppress the evidence obtained pursuant to the
search warrant. They argued that the readings from the thermal
imager constituted an unconstitutional search and that, without
those readings, the DEA did not have probable cause to obtain a
warrant.
The district court granted the motion to suppress in January
1994. See United States v. Ishmael, 843 F. Supp. 205 (E.D. Tex.
1994). The court employed a burden-shifting analysis. The burden,
it observed, initiated with the Ishmaels to demonstrate that they
4
had a reasonable expectation of privacy. The court concluded that,
although the steel structure was outside the curtilage of the home,
the Ishmaels nonetheless had exhibited a reasonable expectation of
privacy. Id. at 209-12. Specifically, it noted that "the Ishmaels
had a reasonable expectation that their effects, associated with
the secreted metal building and the business being conducted there,
were safe from [g]overnmental surveillance." Id. at 211. Pointing
to Florida v. Riley, 488 U.S. 445 (1989), and California v.
Ciraolo, 476 U.S. 207 (1986), the government argued that the
Ishmaels did not have a reasonable expectation of privacy from the
DEA's air surveillances. The court rejected the government's
argument, reasoning that those cases were limited exclusively to
naked-eye observations. Id. at 211-12.
According to the district court, the burden then shifted to
the government to prove that its search fell within one of the
several recognized exceptions to the warrant requirement. The
government, relying on Dow Chemical Company v. United States, 476
U.S. 227 (1986), argued below that the heat emissions were in
"plain view." The court rejected the "plain view" argument on the
ground that the heat emissions would not be in plain view without
the use of "sophisticated technology," namely the thermal imager.
Id. at 212. Alternatively, the government analogized the heat
emissions to curb-side garbage (as in California v. Greenwood, 486
U.S. 35 (1988)) and the scent of cocaine emanating from luggage (as
5
in United States v. Place, 462 U.S. 696 (1983)): because each has
been effectively abandoned, the defendant no longer has a
subjective expectation of privacy in its concealment. The court
rejected the government's analogies on the ground that the relative
sophistication of the thermal imager poses a greater intrusion than
officers manually rummaging through abandoned garbage or a trained
police dog alerting to a suitcase carrying contraband. Id. at 212-
13.
Having found that the use of the thermal imager constituted a
search proscribed by the Fourth Amendment, the court proceeded to
determine whether the remaining evidence amounted to probable
cause. The court noted that the DEA had no direct evidence of
illegal activity taking place on the Ishmaels' property. Id. at
213-14. The court stated, "The evidence of their activity was
consistent with developing a new patented strain of African
violets, and innumerable other perfectly legal activities." Id. at
214. On this basis, the court concluded that a judge would not
find that probable cause existed for issuing a warrant, and it
therefore granted the Ishmaels' motion to suppress. The government
now appeals the district court's holdings that the warrantless use
of the thermal imager was unconstitutional and that, absent its
readings, probable cause did not exist for the issuance of the
warrant.
II.
A.
6
In reviewing a district court's ruling on a motion to
suppress, we review the court's conclusions of law de novo and its
findings of fact for clear error. United States v. Cardenas, 9
F.3d 1139, 1147 (5th Cir. 1993); United States v. Sanders, 994 F.2d
200, 202-03 (5th Cir. 1993). Furthermore, we view the evidence in
a light most favorable to the prevailing party, United States v.
Piaget, 915 F.2d 138, 140 (5th Cir. 1990), which in this case is
the Ishmaels.
B.
The warrantless use of thermal imagers by the police has
spawned a fair amount of search and seizure jurisprudence over the
last several years.1 Though the Fifth Circuit has yet to squarely
address this issue,2 three of our sister circuits have, and each
1
See United States v. Myers, ___ F.3d ___, 1995 WL 38118 (7th
Cir. 1995); United States v. Robertson, 39 F.3d 891 (8th Cir.
1994); United States v. Kyllo, 37 F.3d 526 (9th Cir. 1994); United
States v. Ford, 34 F.3d 992 (11th Cir. 1994); United States v.
Pinson, 24 F.3d 1056 (8th Cir. 1994); United States v. Olson, 21
F.3d 847 (8th Cir. 1994); United States v. Deaner, 1 F.3d 192 (3d
1993); United States v. Feeney, 984 F.2d 1053 (9th Cir. 1993);
State v. Young, 867 P.2d 593 (Wash. 1994); United States v. Field,
855 F. Supp. 1518 (W.D. Wis. 1994); United States v. Domitrovich,
852 F. Supp. 1460 (E.D. Wash. 1994); United States v. Porco, 842 F.
Supp. 1393 (D. Wyo. 1994); United States v. Deaner, 1992 WL 209966
(M.D. Pa. 1992); United States v. Kyllo, 809 F. Supp. 787 (D. Or.
1992), vacated on other grounds, 37 F.3d 526 (9th Cir. 1994);
United States v. Penny-Feeney, 773 F. Supp. 220 (D. Haw. 1991),
aff'd on other grounds, 984 F.2d 1053 (9th Cir. 1993); see also
Lisa J. Steele, Waste Heat and Garbage: The Legalization of
Warrantless Infrared Searches, 29 CRIM. L. BULL. 19 (1993).
2
In United States v. Broussard, 987 F.2d 215 (5th Cir. 1993),
the defendant moved to suppress certain evidence on the ground that
the affidavit the government submitted in requesting a warrant was
insufficiently detailed. In affirming the district court's denial
of the motion, we noted that, to the extent that the affidavit was
inadequate, the warrant was nonetheless valid because the
government had supplied findings from a thermal imaging device.
7
has concluded that such use is not a "search" proscribed by the
Fourth Amendment. United States v. Myers, 1995 WL 38118, at *2-*3
(7th Cir. 1995); United States v. Ford, 34 F.3d 992, 995-97 (11th
Cir. 1994); United States v. Pinson, 24 F.3d 1056, 1058-59 (8th
Cir. 1994). We now hold that the warrantless use of a thermal
imager in an "open field" does not violate the Fourth Amendment.
1.
The Fourth Amendment provides in part: "The right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated."
U.S. CONST. amend. IV. As in any Fourth Amendment surveillance
case, our analysis begins with Katz v. United States, 389 U.S. 347
(1967). The Supreme Court in Katz enunciated its two-prong test
for determining whether a warrantless search violated a defendant's
legitimate expectation of privacy: the defendant must have
exhibited a subjective expectation of privacy, and that expectation
must be one society is prepared to recognize as reasonable. Id. at
361 (Harlan, J., concurring); see also Ciraolo, 476 U.S. at 211
(majority opinion). With regard to the first prong, the government
maintains that the Ishmaels did not exhibit a subjective
expectation of privacy because they made no effort to conceal the
heat emanating from the building. In fact, the Ishmaels encouraged
emission of the heat by installing an exhaust fan that operated
Id. at 222. Because the defendant did not challenge the
constitutionality of the warrantless use of the device, we did not
address the issue. See also United States v. Zimmer, 14 F.3d 286,
288 (6th Cir. 1994).
8
continuously. Thus, the government argues, the Ishmaels clearly
failed Katz' first prong because "[w]hat a person knowingly exposes
to the public, even in his home or office, is not a subject of
Fourth Amendment protection." Katz, 389 U.S. at 351. The
Ishmaels, in response, contend that the government's argument is
somewhat specious; while the substructure admittedly was emitting
heat, that emission was not a deliberate act. The law of physics,
and not the Ishmaels' failure to contain, controlled the emission
of heat from the substructure. The Ishmaels argue that the
government's "heat waste" analogy therefore is a bad one because
one who expects his garbage to remain private can refrain from
leaving it at the curb, whereas one who expects his heat waste to
go undetected can only hope the police is not presently scanning
his property with a thermal imager.
In cases involving very similar facts, other courts have
readily accepted the heat waste analogy in concluding that the
defendants' have failed to satisfy Katz' first prong. See, e.g.,
Myers, ___ F.3d at ___; Ford, 34 F.3d at 995; Domitrovich, 852 F.
Supp. at 1472-73; Penny-Feeney, 773 F. Supp. at 225-26. But a
cursory review of Katz itself demonstrates that the first prong
probably is not as restrictive as these courts have interpreted it
to be. In Katz, the government, without a warrant, attached a
recording device to the exterior of a telephone booth that the
defendant used to illegally transmit gambling information. The
defendant argued that the government's warrantless eavesdropping
was proscribed by the Fourth Amendment, and the Supreme Court
9
agreed. Though the defendant in Katz did not take every precaution
against electronic eavesdropping, the Court nonetheless concluded
that he had exhibited a subjective expectation of privacy. Katz,
389 U.S. at 353 (the government's warrantless eavesdropping
"violated the privacy upon which [the defendant] justifiably relied
while using the telephone booth") (majority opinion). Likewise, in
Ciraolo, the defendant was cultivating marijuana in his backyard,
which was enclosed by a six-foot outer fence and a ten-foot inner
fence. Because the fences obstructed its view from ground level,
the police flew over the defendant's property at 1,000 feet and
observed the marijuana patch. Though it ultimately concluded that
the search was constitutional, the Court initially concluded that
the defendant "[c]learly . . . ha[d] met the test of manifesting
his own subjective intent and desire to maintain privacy as to his
unlawful agricultural pursuits." Ciraolo, 476 U.S. at 211; see
also Riley, 488 U.S. at 449 ("We recognized [in Ciraolo] . . . that
the occupant had a subjective expectation of privacy. We held,
however, that such an expectation was not reasonable.").3
Thus, unless we intend to render Katz' first prong
meaningless, we must conclude that the Ishmaels exhibited a
3
Riley is further proof that a dweller need not guard against
every possibility of detection in order to satisfy Katz' first
prong. The defendant in Riley was cultivating marijuana in a
greenhouse that was missing several corrugated roofing panels.
Flying over the greenhouse in a helicopter at 400 feet, the police
observed marijuana through an opening in the roof. The Court found
that the defendant "no doubt intended and expected that his
greenhouse would not be open to public inspection." Riley, 488
U.S. at 450. But concluding that Ciraolo was controlling, the
Court held that the search was nonetheless reasonable.
10
subjective expectation that their hydroponic laboratory would
remain private. See Smith v. Maryland, 442 U.S. 735, 740 n.5
(1979) ("[s]ituations can be imagined, of course, in which Katz'
two-pronged inquiry would provide an inadequate index of Fourth
Amendment protection").4 Though the Ishmaels did not -- indeed,
could not -- take every precaution against the detection of the
hydroponic laboratory, the balance of the evidence demonstrates
that the Ishmaels exhibited a subjective expectation of privacy.
Rohn Ishmael, for example, constructed the laboratory in great
secrecy. In addition, it was built as a basement to a steel
building that was not visible from a public road. We therefore
conclude that the Ishmaels have satisfied Katz' first prong.
2.
We now must address whether the government's intrusion on the
Ishmaels' subjective expectation of privacy with a thermal imager
is a reasonable one. Oliver v. United States, 466 U.S. 170, 182-83
(1984) ("the correct inquiry is whether the government's intrusion
infringes upon the personal and societal values protected by the
Fourth Amendment"). It is at this point in the analysis that the
use of technology, and its degree of sophistication, becomes an
issue, because more sophisticated forms of technology increase the
likelihood that their warrantless use will constitute an
4
See also 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 2.1(c), at 308-310
(2d ed. 1987) (generally arguing that courts should avoid the
contemplation of unreasonable hypotheticals when applying the first
Katz prong); David H. Steinberg, Constructing Homes for the
Homeless? Searching for a Fourth Amendment Standard, 41 DUKE L.J.
1508, 1516-20 (1992).
11
unreasonable intrusion. As the Supreme Court once stated,
"surveillance of private property by using highly sophisticated
surveillance equipment not generally available to the public . . .
might be constitutionally proscribed absent a warrant." Dow
Chemical, 476 U.S. at 238.
Dow Chemical provides useful guidance for search and seizure
cases involving surveillance technology. There, the Environmental
Protection Agency, without a warrant, had flown over Dow's
industrial plant with a precise mapping camera. Dow argued that
the use of the camera was an unconstitutional search. The Supreme
Court disagreed, reasoning that the government is not foreclosed
from using technology to enhance its surveillances, provided that
that technology does not reveal "intimate details." Id. at 238.
The Court was satisfied that the camera did not reveal such
"details" because it was not "some unique sensory device that, for
example, could penetrate the walls of buildings and record
conversations in Dow's plants, offices, or laboratories, but rather
a conventional, albeit precise, commercial camera commonly used in
mapmaking." Id. at 238. Similarly, in United States v. Knotts,
460 U.S. 276 (1983), the police surveilled the defendant by means
of an electronic beeper attached to the interior of a five-gallon
chloroform drum. Relying on the beeper's signals, the police
eventually uncovered the drum just outside the residence of one of
the defendants. The defendant who owned the residence insisted
that the warrantless use of the beeper was unconstitutional because
it violated the sanctity of his home. The Supreme Court, however,
12
held that the surveillance was not an unreasonable search because
"there is no indication that the beeper was used in any way to
reveal information as to the movement of the drum within the
cabin." Id. at 285; see also Place, 462 U.S. at 706-07 (specially
trained canine sniffing luggage is not an unconstitutional search
because it is a "limited disclosure" and involves no "embarrassment
and inconvenience"); Smith, 442 U.S. at 741-46 (pen register, which
discloses only the telephone numbers that have been dialed and not
the content of communications, is not an unconstitutional search);
United States v. Lee, 274 U.S. 559, 563 (1927) (searchlight that
uncovered contraband from a distance was not an unconstitutional
search). Thus, the mere fact that the police have employed
relatively sophisticated forms of technological surveillance does
not render the surveillance unconstitutional.5 While technology
certainly gives law enforcement a leg up on crime, the Supreme
Court has "never equated police efficiency with
unconstitutionality." Knotts, 460 U.S. at 284. The crucial
inquiry, as in any search and seizure analysis, is whether the
technology reveals "intimate details." Dow Chemical, 476 U.S. at
238.
A thermal imager, according to the government, is no more
intrusive than the other animate and inanimate means of
5
"Nothing in the Fourth Amendment prohibited the police from
augmenting the sensory faculties bestowed upon them at birth with
such enhancement as science and technology afforded them in this
case." Knotts, 460 U.S. at 282. "The Supreme Court has repeatedly
held that the fact that a surveillance device allowed for super- or
extra-sensory perception is not fatal to a Katz analysis." Ford,
34 F.3d at 997.
13
surveillance that the Supreme Court has concluded does not offend
the Fourth Amendment. That is, like the trained canine in Place or
the precise mapping camera in Dow Chemical, a thermal imager is an
acceptable surveillance technique because it does not reveal
intimate details within the structure being scanned. Instead, the
government argues, the device assesses only heat differentials in
objects and therefore poses no threat to the privacy concerns that
the Fourth Amendment is intended to protect. The Ishmaels contend,
however, that a thermal imager is the functional equivalent of an
X-ray machine in that it allows officers to "see" within a
structure what it otherwise cannot see with the naked eye.
Specifically, they argue, a thermal imager measures heat that is
generated within a structure and, to that extent, constitutes an
unreasonable intrusion on one's Fourth Amendment privacy. The
Ishmaels, echoing the district court below, see Ishmael, 843 F.
Supp. at 212, argue that a thermal imager is the type of
"sophisticated technology" that the Court in Dow Chemical warned
law enforcement officials not to use without a warrant.
The Ishmaels overstate the device's capabilities. The device
"does not intrude in any way into the privacy and sanctity of a
home." Myers, ___ F.3d at ___. It "is a passive, non-intrusive
instrument" in that "[i]t does not send any beams or rays into the
area on which it is fixed or in any way penetrate structures within
that area." Penny-Feeney, 773 F. Supp. at 223. As the Eighth
Circuit recently noted, "[t]he detection of the heat waste [is] not
an intrusion into the home; no intimate details of the home [are]
14
observed, and there [is] no intrusion upon the privacy of the
individuals within." Pinson, 24 F.3d at 1059.6 The device, in
other words, poses no greater intrusion on one's privacy than a
precise mapping camera, an electronic beeper, or a pen register.
The manner in which a thermal imager was used in this case is
equally significant in assessing the reasonableness of the
intrusion. When the DEA performed its pre-dawn thermal readings in
this case, the officers never physically invaded the Ishmael's
residential or commercial curtilage. See Dow Chemical, 476 U.S. at
237 ("[a]ny actual physical entry by EPA into any enclosed area
would raise significantly different questions"). The district
court below characterized the steel building as a "business," see
Ishmael, 843 F. Supp. at 210, and recognizing that we can review
the court's factual finding only for clear error, we will not
disturb the court's finding.7 But the court erred as a matter of
law when it stated the following: "to say that the government could
6
The Ishmaels also overstate its accessibility, which also is
a significant consideration. See Dow Chemical, 476 U.S. at 238.
As the district court in Deaner stated:
The technology employed is "off the shelf," having been in
general use for fifteen years. The device is utilized by many
businesses for a variety of purposes, including the detection
of roof leaks, steam pipe leaks, cracks in high voltage
transmission lines and overloaded transformers. Several
companies market the product, which is readily available
through purchase, rental or the services of a thermographer.
Deaner, 1992 WL 209966, at *2.
7
We would reach the same conclusion even if we could apply a
more exacting standard of review. Applying the four factors from
United States v. Dunn, 480 U.S. 294, 300-03 (1987), the steel
building clearly is beyond the Ishmaels' residential curtilage.
The building, for example, stood 200 to 300 yards from the
Ishmaels' mobile home and was not enclosed within a fence that also
surrounded the home. See Ishmael, 843 F. Supp. at 209-10.
15
intrude up to the very windows of the building on the basis of the
``open fields' doctrine simply because it was outside the curtilage
of a home, would eviscerate the Fourth Amendment." Id. The
Supreme Court, in fact, has held precisely the opposite. In United
States v. Pace, 955 F.2d 270 (5th Cir. 1992), law enforcement
officers came abreast of the defendant's barn, which stood beyond
the residential curtilage, and peered inside the barn to observe
the defendant's drug operation. The defendant argued that the barn
qualified as a business and that the barn's surrounding area was
protected under a theory analogous to the home curtilage theory.
Noting that the Supreme Court effectively rejected this theory in
United States v. Dunn, 480 U.S. 294, 303-05 (1987), we concluded
that "there is no business curtilage surrounding a barn lying
within an open field." Pace, 955 F.2d at 276.8 The officers
therefore were entitled to "come as close to the structure as
necessary to look inside without physically entering." Id.
Similarly, the officers in this case were entitled to observe
the steel building either by air or on foot because the building,
8
In Dunn, which involved facts nearly identical to those in
Pace, the Supreme Court accepted for the sake of argument that the
defendant's barn was a business. Dunn, 480 U.S. at 303. The Court
then stated:
the officers never entered the barn, nor did they enter any
other structure on respondent's premises. Once at their
vantage point, they merely stood, outside the curtilage of the
house and in the open fields upon which the barn was
constructed, and peered into the barn's open front. And,
standing as they were in the open fields, the Constitution did
not forbid them to observe the phenylacetone laboratory
located in respondent's barn. This conclusion flows naturally
from our previous decisions.
Id. at 304.
16
like the barn in Pace, stood in an open field. And, as we have
already discussed, the fact that the officers enhanced their
observations with a thermal imager does not require a different
conclusion. The device, when used in an "open field," does not
offend the Fourth Amendment because it is passive and non-
intrusive. The sanctity of one's home or business is undisturbed.
We therefore conclude that the DEA's warrantless use of a thermal
imager in this case was not an unconstitutional search.
III.
Having concluded that the warrantless use of a thermal imager
was not unconstitutional in this case, we now turn to the question
of whether the device's readings, in conjunction with the remainder
of the evidence the DEA proferred to the magistrate judge,
established the necessary probable cause to issue the warrant. In
determining whether probable cause exists, "a magistrate judge must
make a practical, common-sense decision as to whether, given all
the circumstances set forth in the affidavit, there is a fair
probability that contraband or evidence of a crime will be found in
a particular place." United States v. Byrd, 31 F.3d 1329, 1340
(5th Cir. 1994). Reviewing courts (including district courts)
should afford a magistrate judge's decision "great deference."
Illinois v. Gates, 462 U.S. 213, 236 (1983); United States v.
McCarty, 36 F.3d 1349, 1356 (5th Cir. 1994); United States v.
Robertson, 39 F.3d 891, 892 (8th Cir. 1994).
The totality of the circumstances in this case clearly
indicates a fair probability that the Ishmaels were cultivating
17
marijuana in the steel building's substructure. Rohn Ishmael, for
example, was extremely careful not to reveal the need for the
concrete re-mix. The substructure had been elaborately constructed
with its own electricity supply and was being fed water from the
nearby pond. The substructure's exhaust fan operated on a
continuous basis. In addition, the Ishmaels phone records
indicated that their phone had been used to call various
horticulture shops, two of which appeared on a law enforcement
computer data base. The Ishmaels' electric utility records
demonstrated that the substructure was consuming an inordinate
amount of power, particularly when compared to the mobile home's
power usage. Finally, and perhaps most importantly, expert
thermographers analyzed the two readings from the thermal imager
and concluded that the inordinate amount of heat emanating from the
substructure was consistent with indoor cultivation of marijuana.
Construing this evidence in a "common-sense manner,"9 we conclude
that probable cause existed for the issuance of the warrant. See
Robertson, 39 F.3d at 893-94 (readings from a thermal imager, when
combined with informant's tip and police officer's own
observations, establish probable cause).
IV.
9
"Like the district court, . . . we construe the
[government's] affidavit in a common-sense manner." McCarty, 36
F.3d at 1356.
wjl\opin\94-40159.opn
jwl 18
For the reasons stated above, the district court's order
granting the Ishmaels' motion to suppress is REVERSED and the case
is REMANDED to the district court for further proceedings.
wjl\opin\94-40159.opn
jwl 19