Appeal from the United States District Courtfor the District of OregonHelen J. Frye, District Judge, PresidingArgued and SubmittedNovember 5, 1997--Portland, OregonFiled April 7, 1998Before: John T. Noonan and Michael Daly Hawkins,Circuit Judges, and Robert R. Merhige, Jr.,* District Judge.Opinion by Judge Merhige; Dissent by Judge Hawkins
______________________COUNSEL Kenneth Lerner, Portland, Oregon, for the defendant-appellant.Kristine Olson, United States Attorney, District of Oregon;Robert R. Thomson, Assistant United States Attorney, Med-ford, Oregon, for the plaintiff-appellee.David K. Allen, American Civil Liberties Union of Oregon,Inc., Portland, Oregon, for the amicus.
_____________________________OPINION MERHIGE, District Judge, with whom Circuit Judge Noonanjoins, Concurring:Based on the readings from a thermal imager, the observa-tion of unusually high power usage at Defendant-AppellantDanny Lee Kyllo's home, information provided by an infor-mant, and other circumstantial evidence, federal law enforce-ment officers obtained a warrant to search the premises ofDanny Lee Kyllo ("Kyllo"). The officers executed the warrantand discovered an indoor marijuana growing operation, weap-ons, and drug paraphernalia. After being indicted, Kyllomoved to suppress all the evidence obtained in the search ofhis residence. The district court denied his motion. Wevacated that conviction and remanded for further proceedings.On remand, the district court again denied Kyllo's motion tosuppress. This appeal presents an issue of first impression inthis circuit, namely whether thermal imaging scanning is asearch within the meaning of the Fourth Amendment. Wehold that thermal imaging scanning is a search within themeaning of the Fourth Amendment.I. Factual BackgroundWhile investigating a suspected marijuana growing and dis-tribution operation, United States Bureau of Land Manage-ment Agent William Elliott ("Elliott") discovered informationsuggesting Kyllo's involvement. Elliott contacted Oregonstate law enforcement officers who provided him with addi-tional information, including the following: that Kyllo livedwith his wife, Luanne Kyllo ("Luanne"), in one unit of a tri-plex in Florence, Oregon; that the triplex was occupied byother persons who were suspects in the investigation; that acar registered to Kyllo and Luanne at the triplex address wasparked outside the triplex; that Kyllo had allegedly told apolice informant that Luanne and he could supply the infor-mant with marijuana; and that the previous month, Luannehad been arrested for delivery and possession of a controlledsubstance.Elliott subpoenaed Kyllo's utility records. Using a chart forestimating average electricity use, Elliott concluded thatKyllo's electricity use was abnormally high. At Elliott'srequest, Staff Sergeant Daniel Haas ("Haas") of the OregonNational Guard examined Kyllo's home using an AgemaThermovision 210 thermal imaging device (the "Agema"). Athermal imager operates by observing and recording the dif-ferential heat patterns emanating from various objects withinits view. The results of the measure of these differential heatpatterns are then displayed on a viewfinder on top of theinstrument which indicates the amount of heat emitted byobjects by shading the area around the object a lighter ordarker color. As the Tenth Circuit explained, [a]ctivities that generate a significant amount of heat . . . produce a heat "signature" that the imager can detect. Under optimal conditions -- viewing through an open window into a darkened room, for example -- the imager (or one much like it) might well be able to resolve these heat signatures into somewhat indistinct images. The utility of the machine depends therefore not on the inevitable and ubiquitous phe- nomenon of heat loss but on the presence of distin- guishable heat signatures inside the structure.United States v. Cusumano, 67 F.3d 1497, 1501 (10th Cir.1995), vacated on other grounds, 83 F.3d 1247 (10th Cir.1996).Haas' search revealed what he considered abnormally highlevels of heat emanating from Kyllo's home. Elliott con-cluded that this heat signature indicated the presence of highintensity lights used to grow marijuana indoors. Elliott pre-sented the information he had gathered about Kyllo in an affi-davit (the "Affidavit") to a federal magistrate judge for theUnited States District Court for the District of Oregon andrequested a search warrant for Kyllo's home. The magistrateissued the warrant. Elliott searched Kyllo's home. He discov-ered an indoor marijuana growing operation and seized anumber of items, including marijuana, weapons, and drug par-aphernalia.Kyllo was indicted on one count of the manufacture of mar-ijuana in violation of 21 U.S.C. S 841(a)(1). After holding asuppression hearing, the district court denied Kyllo's motion.Kyllo pled guilty and was sentenced to 63 months in custody.Kyllo appealed the district court's denial of his motion to sup-press the evidence to this Court. In a memorandum disposi-tion, this Court found that, while the portion of the Affidavitrelating to Kyllo's electricity use was false and misleading,the district court was not clearly erroneous in concluding thatthe false statements were not knowingly or recklessly made.See United States v. Kyllo, 37 F.3d 526 (9th Cir. 1994). Thus,the portion of Elliott's affidavit relating to Kyllo's electricityuse was properly considered by the magistrate judge in deter-mining whether there was probable cause to issue a warrant.This Court then remanded the case to the district court tohold an evidentiary hearing on the capabilities of the Agemaand on whether Elliott knowingly or recklessly omitted fromthe Affidavit the fact that Kyllo and Luanne were divorced."A district court must suppress evidence seized under a war-rant when an affiant has knowingly or recklessly includedfalse information in the affidavit." United States v. Dozier,844 F.2d 701, 705 (9th Cir.), cert. denied,
488 U.S. 927
(1988). The district court found that, while Elliott's omissionfrom the Affidavit of the fact that Kyllo and Luanne weredivorced was misleading, it was not knowingly false or madein reckless disregard for the truth. See United States v. Kyllo,No. Cr. 92-51-FR (D.Or. Mar. 15, 1996). We review the dis-trict court's finding that these statements were not made withreckless regard for the truth under the clearly erroneous stan-dard. See Dozier, 844 F.2d at 705.In light of the evidence presented at the suppression hear-ing, it was not clearly erroneous for the district court to findthat Elliott's omission from the Affidavit of the fact that Kylloand Luanne were divorced was not knowingly false or madein reckless disregard for the truth. No evidence was presentedat the hearing that either Elliott or the Oregon State lawenforcement officers who supplied him information knew thatKyllo and Luanne were divorced. Furthermore, there was noevidence presented showing that their failure to discover andreport the fact of Kyllo's divorce was reckless. Thus, the por-tion of Elliott's affidavit relating to Kyllo's relationship toLuanne was properly considered by the magistrate judge indetermining whether there was probable cause to issue a war-rant.After holding the evidentiary hearing, the district courtfound that Elliott did not knowingly or recklessly omit infor-mation about Kyllo's divorce from the Affidavit. Regardingthe Agema, the district court found that (1) it revealed nointimate details of Kyllo's home, (2) it did not intrude on theprivacy of persons inside Kyllo's home, (3) it could not pene-trate walls or windows or reveal human activities or conversa-tions, and (4) it "recorded only the heat being emitted fromthe home." United States v. Kyllo, No. CR 92-51-FR (D.Or.Mar. 15, 1996). Based on its factual findings, the district courtconcluded that the warrantless search of Kyllo's home withthe Agema was permissible and that there was probable causeto issue the warrant to search Kyllo's home.On appeal, Kyllo argues that the use of the thermal imagingscanner to measure the heat emanating from his house was asearch within the meaning of the Fourth Amendment and,therefore, required a warrant to be valid. As a result, Kylloargues that the search was unconstitutional, rendering thesearch warrant based on the results of Agema's measurementsinvalid. Kyllo further argues that the district court erred infinding that Elliott's omission from the Affidavit of the factthat Kyllo and Luanne were divorced was not knowingly falseor made in reckless disregard for the truth. Kyllo contendsthat neither the findings from the warrantless search with theAgema nor Elliott's omissions from the Affidavit should havebeen considered by the magistrate in determining whetherthere was probable cause to issue the search warrant. Thus,Kyllo argues, the evidence obtained during the search shouldbe suppressed.II. Warrantless Search with Thermal Imaging DeviceKyllo first argues that the warrantless use of a thermalimaging device to scan his home constituted a "search" withinthe meaning of the Fourth Amendment, and that the fruits ofthis warrantless search must therefore be suppressed. Thevalidity of a warrantless search is reviewed de novo. SeeUnited States v. Van Pyck, 77 F.3d 285, 190 (9th Cir.), cert.denied, 117 S. Ct. 276 (1996). The district court's findings offact on the capabilities of the Agema are reviewed for clearerror. See Ornelas v. United States, 116 S. Ct. 1657, 1663(1996); United States v. Hernandez, 27 F.3d 1403, 1406 (9thCir. 1994).[1] The Fourth Amendment provides that"[t]he right of thepeople to be secure in their persons, houses, papers, and othereffects, against unreasonable searches and seizures, shall notbe violated." U.S. Const. amend. IV. We must apply the two-prong test enunciated by the Supreme Court in Katz to deter-mine whether a warrantless search violated a defendant'slegitimate expectation of privacy: the defendant must have asubjective expectation of privacy, and that expectation mustbe one that society is prepared to acknowledge as reasonable.See Katz v. United States,
389 U.S. 347
, 361 (Harlan, J., con-curring); see also California v. Ciraolo,
476 U.S. 207
, 211(1986). We conclude that Kyllo had a subjective expectationof privacy that activities conducted within his home would beprivate. Although the Supreme Court ultimately held that thesearch conducted in Ciraolo was constitutional, it first con-cluded that the defendant, who enclosed his backyard mari-juana crop with a double fence, "ha[d] met the test ofmanifesting his own subjective intent and desire to maintainprivacy as to his unlawful agricultural pursuits. " Ciraolo, 476U.S. at 211. Surely a defendant, such as Kyllo, who moves hisagricultural pursuits inside his house has similarly manifesteda subjective expectation of privacy in those activities. SeeUnited States v. Ishmael, 48 F.3d 850, 854 (5th Cir. 1995).[2] In cases involving the use of thermal imagers, other cir-cuits have framed the inquiry in the first prong of Katzdifferently. Those circuits have analogized the excess heatmeasured by a thermal imager to the excess trash left on thecurb, and have asked whether the defendant has manifested asubjective expectation of privacy in the "waste heat" emanat-ing from their homes. Those courts have held, citingCalifornia v. Greenwood,
486 U.S. 35
(1998), that suchdefendants have failed to manifest a subjective expectation ofprivacy in the excess heat. See United States v. Robinson, 62F.3d 1325, 1328-29 (11th Cir. 1995); United States v. Myers,46 F.3d 668, 669-70 (7th Cir. 1995); United States v. Pinson,24 F.3d 1056, 1058 (8th Cir. 1994). We respectfully reject the"heat waste" analogy. The purpose and utility of the thermalimager is to reveal the heat signatures of various objects andactivities occurring inside a structure. "The pertinent inquiryis not, therefore, whether the Defendants retain an expectationof privacy in the `waste heat' radiated from their home but,rather, whether they possess an expectation of privacy in theheat signatures of the activities, intimate or otherwise, thatthey pursue within their home." United States v. Cusumano,67 F.3d 1497, 1502 (10th Cir. 1995), vacated on othergrounds, 83 F.3d 1247 (10th Cir. 1996); see also Katz, 389U.S. at 353 (holding the defendant had exhibited a subjectiveexpectation of privacy although he had not taken every pre-caution against electronic eavesdropping); Ishmael 48 F.3d at854-55 (holding warrantless search with thermal imager con-stitutional but rejecting the "waste heat" analogy).We now must address whether Kyllo's subjective expecta-tion of privacy regarding the heat signatures of the activitieswithin his home is one that society is prepared to acknowl-edge as reasonable. As the Supreme Court has stated,"[a]t therisk of belaboring the obvious, . . . [the individual's expecta-tion in the privacy of a residence] is plainly one that societyis prepared to recognize as reasonable." United States v. Karo,
468 U.S. 705, 714
(1984). The Supreme Court has repeatedlyemphasized that "[a]t the very core [of the Fourth Amend-ment] stands the right of a man to retreat into his own homeand there be free from unreasonable governmental intrusion."Silverman v. United States,
365 U.S. 505, 511
(1961).Because of the respect for the sanctity of the home,"theFourth Amendment has drawn a firm line at the entrance tothe house. Absent exigent circumstances, that threshold maynot reasonably be crossed without a warrant." Payton v. NewYork,
445 U.S. 573, 590
(1980). Therefore, warrantlesssearches and seizures in the home are "presumptivelyunreasonable." Id.Other circuits that have considered the warrantless use ofthermal imagers have held that because of the technical inade-quacies of the thermal imager used in their respective cases,the scan of defendants' homes did not reveal enough intimatedetails to raise constitutional concerns, all citing DowChemical v. United States,
476 U.S. 227
(1986). SeeRobinson, 62 F.3d at 1328 (11th Cir. 1995); Ishmael, 48 F.3dat 854 (5th Cir. 1995); Myers, 46 F.3d at 669-70 (7th Cir.1995); Pinson, 24 F.3d at 1059 (8th Cir. 1994); contraCusumano, 67 F.3d at 1504 (10th Cir. 1995). We too are con-cerned about the nature of the information that the thermalimager used to scan Kyllo's home is able to reveal. As westated on remand, [the Katz] inquiry cannot be conducted in the abstract. We must have some gauge of the intrusive- ness of the thermal imaging device, which depends on the quality and the degree of detail of information that it can glean. For example, our analysis will be affected by whether, on the one extreme, this device can detect sexual activity in the bedroom, as Kyllo's expert suggests, or, at the other extreme, whether it can only detect hot spots where heat is escaping from a structure.United States v. Kyllo, 37 F.3d 526, 530-31 (9th Cir. 1994).In the evidentiary hearing conducted on remand, Kyllopresented considerable evidence to the district court about thecapabilities of near-end thermal imagers such as the AgemaThermovision 210. Carlos Ghigliotty presented a videotape hehad created for the district court which clearly demonstratedthe ability of the Agema and other near short wave infraredcameras to see through glass. Mr. Ghigliotty is president ofInfrared Technologies, a company that does testing of the lim-itations and capabilities of infrared cameras and tests waysinfrared cameras can be applied in the field, and has beeninvolved in thermal imaging and infrared technology for four-teen years. The videotape demonstrated that an Agema cam-era used in the dark to scan a car with tinted, closed windowsclearly showed a person waving inside the car. The videotapealso depicted the image displayed on the Agema whichrevealed a man standing inside a glass door of a house, andshowed details such as his movements to open the door, andhis hand waving. Mr. Ghigliotty testified that this was a com-mon capability among near-end thermal imagers such as theAgema.Bill Martin, the director of sales for Flir Systems Incorpo-rated which manufactures infrared imaging equipment, testi-fied for the government. Mr. Martin had previously workedfor the Agema company, and the company had provided Mr.Martin extensive training in infrared technology, includingspecific training on the Agema Thermovision 210. (T-2, 24).Mr. Martin admitted that if a window was open and it wasdark in the room, any thermal imager could detect activitythrough the opening. (T-2, 100). He furthermore stated thatthe imager could "see" people behind curtains if they werevery close to the window, and could reveal people embracingif the window was open and it was dark out. Mr. Martin alsotestified that thermal imagers have physiology applications, asthey can detect subsurface problems in the human body.The record also contains a brochure published by theAgema company describing the capabilities of an AgemaThermovision 210: "Sensitive to temperature differences assmall as 0.9 F, the Thermovision 210 can detect and delineateobjects or persons in complete darkness, or under naturalcover, as far away as 1500 feet. Operations can be conductedin any level of ambient light and at air temperatures from 14to 131 F. Even at that distance . . . the rugged 210 can easilydistinguish between a domestic animal and a human being."[3] We conclude that the details unveiled by a thermalimager are sufficiently "intimate" to give rise to a FourthAmendment violation. Although the Tenth Circuit's opinionin Cusumano was later vacated on rehearing en banc on othergrounds, we agree with its initial conclusion that [o]ur fellow circuits have, we think, misapprehended the most pernicious of the device's capabilities. The machine intrudes upon the privacy of the home not because it records white spots on a dark background but rather because the interpretation of that data allows the government to monitor those domestic activities that generate a significant amount of heat. Thus, while the imager cannot reproduce images or sounds, it nonetheless strips the sanctuary of the home of one vital dimension of its security: `the right to be let alone' from the arbitrary and discre- tionary monitoring of our actions by government officials.United States v. Cusumano, 67 F.3d 1497, 1504 (10th Cir.1995), vacated on other grounds, 83 F.3d 1247 (10th Cir.1996). It is not disputed whether the Agema 210 could revealdetails such as intimate activities in a bedroom. According tothe manufacturer, the imager used in this case is sensitive totemperature differences as small as 0.9 F. As the court notedin Cusumano, it would not be difficult to determine the originof two commingled objects emitting heat in a bedroom atnight. Id. at 1504. Even assuming that the Agema, apparentlya relatively unsophisticated thermal imager, is unable toreveal such intimate details, technology improves at a rapidpace, and much more powerful and sophisticated thermalimagers are being developed which are increasingly able toreveal the intimacies that we have heretofore trusted takeplace in private absent a valid search warrant legitimizingtheir observation.[4] Furthermore, even if a thermal imager does not revealdetails such as sexual activity in a bedroom, with a basicunderstanding of the layout of a home, a thermal imager couldidentify a variety of daily activities conducted in homesacross America: use of showers and bathtubs, ovens, washersand dryers, and any other household appliance that emits heat.See United States v. Field, 855 F. Supp. 1518, 1519 (W.D.Wis. 1994) (stating that a thermal imager had detected thepresence of a dehumidifier in use in a closet). Even the rou-tine and trivial activities conducted in our homes are suffi-ciently "intimate" as to give rise to Fourth Amendmentviolation if observed by law enforcement without a warrant.Compare Arizona v. Hicks,
480 U.S. 321, 325
(1987) ("Itmatters not that the search uncovered nothing of any greatpersonal value to respondent . . . . A search is a search, evenif it happens to disclose nothing but the bottom of aturntable.") and United States v. Karo,
468 U.S. 705
(1984)(holding that revelation of a single detail about the interior ofthe home, whether or not the beeper placed in can of etherwas still inside the home, was sufficient to violate the FourthAmendment) with Florida v. Riley,
488 U.S. 445, 452
(1989)(plurality decision) (visual surveillance of interior of green-house revealed "no intimate details connected with the use ofthe home") (dicta) and Dow Chemical,
476 U.S. at 237
-39(surveillance by camera revealing outlines of commercialbuildings did not disclose intimate details of the home). Wetherefore conclude that the use of a thermal imager to observeheat emitted from various objects within the home infringesupon an expectation of privacy that society clearly deems rea-sonable.[5] Because scanning with a thermal imager without a war-rant violates the Fourth Amendment, the Agema readingsshould not have been considered by the magistrate judge.However, the district court did not consider whether the infor-mation provided to the magistrate was sufficient to sustain asearch warrant without the addition of the readings from thethermal imager. Therefore, we remand for the district court tomake that determination. On remand, the district court shouldbe cognizant of the Court's holdings that the portions ofElliott's affidavit relating to Kyllo's electricity use and hisrelationship to Luanne were properly considered by the mag-istrate judge in determining whether there was probable causeto issue a warrant.REVERSED and REMANDED.
_____________________________HAWKINS, Circuit Judge, dissenting:My colleagues have made the best case imaginable for theproposition that the use of a thermal imaging device consti-tutes a search within the meaning of the Fourth Amendment.I am not persuaded.A search, whether of a home, a car, or a body, is, at bottom,an intrusion; a non-consensual invasion of protected space.Whatever its Star Wars capabilities, the thermal imagingdevice employed here intruded into nothing. Rather, it mea-sured the heat emanating from and on the outside of a house.Nor did law enforcement randomly choose its choice of tar-gets: the agents employing the device were alerted to Kyllo'shouse because of its extraordinary use of electricity, a useconsistent with indoor marijuana cultivation.I would follow the lead of our sister circuits and hold thatthe use of thermal imaging technology does not constitute asearch under contemporary Fourth Amendment standards. the end