United States v. Real Property Located at 15324 County Highway E ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3190
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.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 98-C-718-C--Barbara B. Crabb, Judge.
Argued March 1, 2000--Decided July 6, 2000
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. Instead, the heat emanations were more
like garbage left at the curbside, smoke rising
from a chimney, and the scent of drugs dogs can
detect in luggage, none of which gives rise to
protectible expectations of privacy.
We were also careful in Myers to note that the
thermal imaging scanner used there, an Agema 210,
was not capable of transmitting images so precise
that expectations of privacy might be triggered.
Neither it, nor, as far as the record here shows,
the SEEKIR Thermal Imager pointed at Acker’s
house is (as Acker colorfully puts it) the modern
equivalent of Superman’s X-ray vision. Acker
paints a frightening picture of thermal imagers
so sensitive that they create a precise video
image of every living thing in the house,
revealing facial features, body positions, who is
walking through a kitchen, and who is in the
bedroom engaged in sexual activity. We agree that
a device of such power would present important
questions under the Fourth Amendment. But, as in
Myers, we have no such case before us here.
Acker’s lawyers did ask for an evidentiary
hearing, in part because they hoped to introduce
evidence about the precise capabilities of the
SEEKIR Thermal Imager. How, they ask, will anyone
know without hearings in these cases when newer
devices begin to approach the capabilities of a
conventional video camera hidden in the house, or
the sophisticated ultrasound equipment in
everyday use in hospitals all over the country?
This is an interesting point, but it is
unfortunately one that Acker did not make with
any clarity before the district court. In order
to prevail on a claim that the district court
erred in denying him an evidentiary hearing,
Acker must show that the parties disputed
material issues of fact. United States v. Torres,
191 F.3d 799, 811 (7th Cir. 1999). That burden
may be met only by showing "definite, specific,
detailed, and nonconjectural facts." Id. (citing
United States v. Rodriguez, 69 F.3d 136, 141 (7th
Cir. 1995) (internal quotations omitted)). If
Acker had wanted to pursue the possibility left
open in Myers, he should have proffered evidence
suggesting that the capabilities of the SEEKIR
were sufficiently better than those of the device
in Myers such that the Fourth Amendment analysis
would be affected. He did not, and even now, his
suggestion that such evidence might exist is
sheer speculation.
At the time this court decided Myers, the
Eighth and the Eleventh Circuits had already come
to the same conclusion about thermal imaging
scans--that they were not "searches" within the
meaning of the Fourth Amendment. See United
States v. Pinson, 24 F.3d 1056 (8th Cir. 1994);
United States v. Ford, 34 F.3d 992 (11th Cir.
1994). Since then, the Fifth and the Ninth
Circuits have agreed with this position. See
United States v. Ishmael, 48 F.3d 850 (5th Cir.
1995); United States v. Kyllo, 190 F.3d 1041 (9th
Cir. 1999). No one has come to the opposite
conclusion, except the Tenth Circuit briefly, in
United States v. Cusumano, 67 F.3d 1497 (10th
Cir. 1995), in an opinion that was quickly
vacated, and on rehearing en banc that issue was
not decided. See 83 F.3d 1247 (10th Cir. 1996).
On the present record, and bearing in mind the
type of technology the police here used, we have
no inclination to break ranks with all our sister
circuits and our own precedent. Myers remains
good law, and the district court correctly
recognized that it required the rejection of
Acker’s effort to suppress the evidence.
The judgment of the district court is Affirmed.