United States v. Kattaria ( 2009 )

PER CURIAM.

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 court¹ denied motions to suppress and for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), Kattaria conditionally pleaded guilty to one conspiracy count charging that he manufactured, distributed, and possessed with intent to distribute fifty or more marijuana plants in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846.

Kattaria appealed, and a panel of this court affirmed. United States v. Kattaria, 503 F.3d 703 (8th Cir.2007). Applying the Supreme Court’s ruling that investigative thermal imaging of a residence is a “search” for Fourth Amendment purposes, Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the panel upheld the thermal imaging warrant on alternative grounds: (i) it was supported by a lower quantum of evidence that should be required to establish probable cause to conduct this type of search, and (ii) the thermal imaging warrant and the subsequent warrants to enter and search Kattaria’s residences were supported by the quantum of probable cause typically required for criminal investigations. The panel also concluded that the denial of Kattaria’s request for a Franks hearing was an issue not preserved for appeal.

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, 299 F.3d 1039, 1044 & n. 5 (9th Cir.), cert. denied, 537 U.S. 1079, 123 S.Ct. 681, 154 L.Ed.2d 579 (2002). The government responded that this part of the panel opinion was dicta that need not be reviewed. We granted rehearing en banc and now conclude that all four warrants were supported by traditional probable cause and, alternatively, that the evidence obtained by executing those warrants may not be suppressed under the good-faith exception to the exclusionary rule adopted in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We further conclude that a Franks hearing was properly denied and therefore affirm without considering the panel’s alternative ground for upholding the thermal imaging warrant.

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 extremely high electric power consump-

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, 21 F.3d 847, 848 n. 3 (8th Cir.), cert. denied, 513 U.S. 888, 115 S.Ct. 230, 130 L.Ed.2d 155 (1994). Agent Perry then applied to Ramsey County District Court warrants to conduct physical searches 1814 Malvern and at a Falcon Heights property also owned by Kattaria. In addition, a Lino Lakes police investigator applied to Anoka County District Court for a warrant to conduct a physical search at a Lino Lakes residence owned by Kattaria, based upon Agent Perry’s investigation. these subsequent applications, Perry averred that Captain Dunaski reported a heat-loss pattern from 1814 Malvern that was unlike neighboring houses, resembled other indoor marijuana grow operations, and suggested a grow operation likely located in the basement, as the CD had reported. The supporting affidavits also set forth the facts contained in Perry’s initial affidavit; additional facts tending to confirm the CD’s reliability and describing Kattaria’s 1997 drug distribution conviction; a comparison of Kattaria’s meager wage-earning history with expenses incurred in purchasing multiple residences; and data showing high electric power consumption at the Lino Lakes residence, contrasted with a report from a concerned citizen that no one appeared to have been living at that residence for over two years. Three search warrants issued and were executed, yielding the evidence of substantial marijuana trafficking that Kattaria seeks to suppress.

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, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Whether a search warrant is supported by probable cause is determined by the totality of the circumstances; “resolution of the question by an issuing judge ‘should be paid great deference by reviewing courts.’ ” United States v. Grant, 490 F.3d 627, 631 (8th Cir.2007), cert. denied, — U.S.—, 128 S.Ct. 1704, 170 L.Ed.2d 516 (2008), quoting Gates, 462 U.S. at 236, 103 S.Ct. 2317. The duty of a reviewing court “is to ensure that the issuing judge had a ‘substantial basis’ for concluding that probable cause existed.” United States v. LaMorie, 100 F.3d 547, 552 (8th Cir.1996), quoting Gates, 462 U.S. at 238-39, 103 S.Ct. 2317. We review the district court’s fact findings for clear error and the ultimate question whether the Fourth Amendment has been violated de novo. United States v. Allen, 297 F.3d 790, 794 (8th Cir.2002).

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, 21 F.3d at 850. “[WJhere recent information corroborates otherwise stale information, probable cause may be found.” United States v. Ozar, 50 F.3d 1440, 1446 (8th Cir.), cert. denied, 516 U.S. 871, 116 S.Ct. 193, 133 L.Ed.2d 128 (1995) (quotation omitted).

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.

438 U.S. at 155-56, 98 S.Ct. 2674. In the district court, after the evidentiary hearing on his motion to suppress, Kattaria filed a separate motion for a Franks hearing. Magistrate Judge Boylan issued a Report and Recommendation that thé motion to suppress be denied and a separate Order denying the motion for a Franks hearing.

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 petition for rehearing en banc, the government noted that the panel was “technically correct” but that Kattaria’s opening brief had referred to allegedly false or reckless statements in the warrant affidavits. Compare United States v. Head, 340 F.3d 628, 630 n. 4 (8th Cir.2003). this issue is relevant to the good faith exception under Leon, discussed in Part III, we will exercise our discretion to consider it on the merits. We review the denial of a Franks hearing for abuse of discretion. United States v. Snyder, 511 F.3d 813, 816 (8th Cir.), cert. denied, — U.S.-, 128 S.Ct. 2947, 171 L.Ed.2d 874 (2008).

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, 438 U.S. at 171, 98 S.Ct. 2674. Moreover, whether Kattaria’s 1997 marijuana conviction included a firearm offense was immaterial to the probable cause determination.

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, 157 F.3d 541, 548 (8th Cir. 1998), cert. denied, 525 U.S. 1089, 119 S.Ct. 841, 142 L.Ed.2d 696 (1999). Finally, even if this information in the affidavits was inaccurate as to timing, the discrepancy is not particularly significant, and the recent November 2003 to April 2004 electric power consumption data still provided the most important evidence of probable cause to issue the thermal imaging warrant. Compare United States v. Timley, 443 F.3d 615, 623-24 (8th Cir.), cert. denied, 549 U.S. 889, 127 S.Ct. 299, 166 L.Ed.2d 154 (2006). A Franks hearing was properly denied.

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 not reasonably presume its validity. Leon, 468 U.S. at 923, 104 S.Ct. 3405. Issues (3) and (4) turn on “the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the issuing judge’s authorization.” United States v. Proell, 485 F.3d 427, 430 (8th Cir.2007) (quotation omitted).

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, 439 F.3d 836, 842 (8th Cir.2006) (quotation omitted). That information was substantially corroborated by Perry’s review of Kattaria’s criminal history and the electric utility records. Perry’s affidavit explained that indoor marijuana cultivation requires “a high heat ... tropical type environment,” meaning that abnormally high electric power consumption was reason to suspect a continuing indoor grow operation. The affidavit further explained, “The cultivation of marijuana requires a well vented location that allows some heat to escape and fresh air to enter. This heat that is vented from the grow location can be detected using thermal imagery.” Perry was fully justified in believing that the issuing judge relied on that information in issuing the warrant. Cf. United States v. McCoy, 483 F.3d 862, 864 (8th Cir.2007).

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, 300 F.3d 985, 991 (8th Cir.2002); see United States v. Tagbering, 985 F.2d 946, 951 (8th Cir.1993). As the officers executing all four search warrants acted in good faith reliance on their validity, the motion to suppress was properly denied under Leon.

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, 503 F.3d at 708-09. The judgment of the district court is affirmed.

LOKEN, Chief Judge, with whom

1 . 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.