9th Circuit Rules Warrantless Use of Heat Detection Device Illegal in Marijuana Case

LAW ENFORCEMENT March-April 1998

On April 7, the U.S. Court of Appeals for the Ninth Circuit ruled that law enforcement officers must have a warrant to use heat detection devices to gather evidence (U.S. v. Kyllo, CA9, No. 96-30333, 1998WL156527, 63CrL59, (4/7/98)) (Bill Wallace, "Ninth Circuit Tosses Pot Conviction Case," San Francisco Chronicle, April 8, 1998, p. A24; "Feds need warrant for heat scans, court says," San Francisco Examiner, April 8, 1998, p. A2).

In a 2-1 ruling, the court, which is based in San Francisco, threw out the conviction of Danny Kyllo, an Oregonian who was arrested in 1992 after an investigator for the federal Bureau of Land Management searched his home and discovered marijuana, drug paraphernalia and weapons. The search was based on a warrant that was obtained after officers used a thermal imager borrowed from the Oregon National Guard to scan Kyllo's home. The scan allegedly revealed high levels of heat radiation. In obtaining the search warrant, the agent argued the heat was produced by high-intensity lights frequently used by marijuana cultivators to grow the plants indoors.

Kyllo pleaded guilty in 1992 to growing marijuana and was sentenced to five years and three months in prison but reserved the right to appeal on the issue of the warrantless use of the thermal imager. Relying on earlier appellate cases involving thermal imaging, Kyllo's challenge was rejected by the U.S. District Court in Oregon (U.S. v. Cusumano, 67 F.3d 1497, 1504 (1995), vacated on other grounds, 83 F.3d 1247 (1996)). The 9th Circuit has ordered his case sent back to U.S. District Court in Portland for a new trial saying that the thermal imaging was a warrantless search and violated his constitutional right against unreasonable searches. The ruling requires judges to decide whether agents would have had grounds for a search warrant without using the imagers.

Writing for the majority, Judge Robert R. Merhige said that as technology improves, heat sensitive scanners are being developed "which are increasingly able to reveal the intimacies that we have heretofore trusted take place in private. Merhige wrote, "Even the routine and trivial activities conducted in our homes are sufficiently `intimate' to give rise to Fourth Amendment violation if observed by law enforcement without a warrant." The court noted that a brochure for the device used in this case touted its ability to distinguish between heat levels emitted by an animal and a person from 1,500 feet away in total darkness.

In a dissenting opinion, Judge Michael Daly Hawkins argued that the agent who used the detection gear had not entered Kyllo's home or violated his constitutional rights. "The thermal-imaging device employed here intruded into nothing," Hawkins said. "The use of thermal-imaging technology does not constitute a search under contemporary Fourth Amendment standards." [emphasis added]

Other federal appeals courts have ruled that thermal imagers merely measure the heat given off by the outside of a home and can be used by police without a warrant (U.S. v. Penny-Feeney, 773 F. Supp 220, 49 CrL 1467 (DC Hawaii 1991), affirmed on other grounds, 984 F.2d 1053 (9th Cir. 1993); U.S. v. Myers, 46 F.3d 668, 56 CrL 1451 (7th Cir. 1995); U.S. v. Pinson, 24 F.3d 1056, 55 CrL 1193 (8th Cir. 1994); U.S. v. Ford, 34 F.3d 992, 56 CrL 1027 (11th Cir. 1994); U.S. v. Ishmael, 48 F.3d 850, 57 CrL 1013 (5th Cir. 1995) (see "Tenth Circuit Says Thermal Imaging Is a Search, Contrary to Other Circuits," NewsBriefs, December 1995; "Thermal Imaging -- Newest Weapon in 'War on Drugs'; Court Rules Use Is Not a Search," NewsBriefs, Sept.-Oct. 1994).

Some state courts have agreed, but courts in California, Washington and Montana have required search warrants, said Kenneth Lemer, Kyllo's lawyer. With the courts divided, "I think the Supreme Court has got to wrestle with how you evaluate technology that can intrude into people's homes and can reveal things people normally expect to keep private," Lemer said. The Federal government can be expected to appeal.

Attorney Kenneth Lemer - 811 SW Naito Parkway, Portland, OR 97204, Tel: (503) 243-6042.