Appeal from the United States District Courtfor the District of OregonHelen J. Frye, District Judge, PresidingArgued and SubmittedNovember 5, 1997--Portland, OregonOpinion Filed April 7, 1998Petition for Rehearing with Suggestion forRehearing En Banc filed May 20, 1998Petition for Panel Rehearing Granted January 12, 1999Opinion Withdrawn July 29, 1999Filed September 9, 1999Before: Melvin Brunetti,1 John T. Noonan, andMichael Daly Hawkins, Circuit Judges.Opinion by Judge Hawkins;Dissent by Judge NoonanSUMMARY
______________________COUNSEL Kenneth Lerner, Lerner & Meyer, Portland, Oregon, for thedefendant-appellant.Kristine Olson, United States Attorney, and Robert R. Thom-son, Assistant United States Attorney, Medford, Oregon;Demetra Lambros, U.S. Department of Justice, Washington,D.C., for the plaintiff-appellee.David K. Allen, Portland, Oregon, for amicus American Lib-erties Union Foundation of Oregon, Inc.
_____________________________OPINION HAWKINS, Circuit Judge:As a matter of first impression in this circuit, Danny LeeKyllo ("Kyllo") challenges the warrantless use of a thermalimaging device as a violation of the Fourth Amendment.Kyllo also challenges reliance on a portion of an affidavit dis-cussing his marriage to Luanne Kyllo ("Luanne"), but omit-ting mention of his divorce, arguing it should not have beenconsidered in determining whether there was probable causeto issue a warrant to search his home. We affirm, holding thatthe thermal image scan performed was not a search within themeaning of the Fourth Amendment, and that the district courtdid not clearly err in finding the omission of the Kyllos'divorce from the affidavit was not knowingly false or madein reckless disregard for the truth.Factual and Procedural BackgroundKyllo's arrest and conviction on one count of manufactur-ing marijuana in violation of 21 U.S.C. S 841(a)(1) followedan investigation by a law enforcement task force into a possi-ble conspiracy to grow and distribute marijuana. While inves-tigating the activities of Tova Shook, the daughter of the taskforce's original target, William Elliott ("Elliott"), an agent ofthe United States Bureau of Land Management, an agencyparticipating in the task force, began to suspect Kyllo.Oregon state law enforcement officers provided informa-tion to Elliott that strengthened his suspicions. He was toldthat Kyllo and Luanne resided in one unit of a triplex, anotherunit of which was occupied by Tova Shook and that a car reg-istered jointly to Luanne and Kyllo parked at the triplex.Elliott was also informed that Luanne had been arrested themonth before for delivery and possession of a controlled sub-stance and that Kyllo had once told a police informant that heand Luanne could supply marijuana.Elliott then subpoenaed Kyllo's utility records. Elliott com-pared the records to a spreadsheet for estimating average elec-trical use and concluded that Kyllo's electrical usage wasabnormally high, indicating a possible indoor marijuana growoperation.At 3:20 in the morning in mid-January from the passengerseat of a car parked on the street, Sergeant Daniel Haas("Haas") of the Oregon National Guard examined the triplexof homes where Kyllo resided with an Agema Thermovision210 thermal imaging device ("the Agema 210"). 2 All objectsemit heat, in the form of infrared radiation, which can beobserved and recorded by thermal imaging devices, such asthe Agema 210. Specifically, thermal imagers detect energyradiated from the outside surface of objects, and internal heatthat has been transmitted to the outside surface of an object,which may create a differential heat pattern.In performing its function the Agema 210 passively recordsthermal emissions rather than sending out intrusive beams orrays -- acting much like a camera.3 A viewfinder then trans-lates and displays the results to the human eye, with the areaaround an object being shaded darker or lighter, depending onthe level of heat being emitted. While at first used primarilyby the military, thermal scanners have entered into lawenforcement and civilian commercial use.4 Using the Agema 210, Haas concluded that there was highheat loss emanating from the roof of Kyllo's home above thegarage, and from one wall. Haas also noted that Kyllo's house"showed much warmer" than the other two houses in the tri-plex. Elliott interpreted these results as further evidence ofmarijuana production, inferring that the high levels of heatemission indicated the presence of high intensity lights usedto grow marijuana indoors.Elliott presented this information in an Affidavit to a mag-istrate judge, seeking a search warrant for the Kyllo home.The warrant was issued and Elliott searched Kyllo's home. AsElliott had suspected, an indoor marijuana grow operationwas found, with more than one hundred plants. Marijuana,weapons, and drug paraphernalia were seized.Kyllo was indicted for manufacturing marijuana, basedupon the evidence seized during the search. The district courtdenied Kyllo's motion to suppress the seized evidence, fol-lowing a hearing. Kyllo entered a conditional guilty plea andwas sentenced to a prison term of 63 months. Kyllo thenappealed the denial of the suppression motion, challengingseveral portions of the Affidavit as well as the warrantlessthermal imager scan.A panel of this court found that while the portion ofElliott's Affidavit discussing Kyllo's energy usage was falseand misleading, the false statements were not knowingly orrecklessly made. See United States v. Kyllo, 37 F.3d 526 (9thCir. 1994). While concluding it was therefore proper for themagistrate judge to consider that portion of the Affidavit indetermining probable cause to issue the search warrant, thepanel remanded for an evidentiary hearing on the intrusive-ness and capabilities of the Agema 210 and a Franks5 hearingon whether Elliott had knowingly or recklessly omitted Kylloand Luanne's divorce from his Affidavit. See id . at 531.Following a hearing on remand, the district court concludedthat the omission of the divorce from the Affidavit, while mis-leading, was not knowingly false or made in reckless disre-gard for the truth. See United States v. Kyllo , No. Cr. 92-51-FR (D.Or. Mar. 15, 1996). The district court, after hearingfurther evidence, made factual findings on the capabilities ofthe Agema 210 and concluded no warrant was required beforethe thermal scan. The district court therefore found probablecause to issue the warrant, and denied the motion to suppress.See id. Kyllo now challenges this decision. 6Standard of Review"A district court must suppress evidence seized under awarrant when an affiant has knowingly or recklessly includedfalse information in the affidavit." See United States v.Dozier, 844 F.2d 701, 705 (9th Cir. 1988). Because it is a fac-tual finding, we review for clear error a determination ofwhether false statements or omissions are intentional or reck-less. See id.; United States v. Senchenko, 133 F.3d 1153 (9thCir. 1998).We review de novo the validity of a warrantless search. SeeUnited States v. Van Poyck, 77 F.3d 285, 290 (9th Cir. 1996);United States v. Ogbuehi, 18 F.3d 807, 812 (9th Cir. 1994).We review for clear error any underlying factual findings. SeeOrnelas v. United States,
517 U.S. 690, 699
(1996); UnitedStates v. Hernandez, 27 F.3d 1403, 1406 (9th Cir. 1994).AnalysisI. Search and Seizure Analysis [1] Kyllo's essential claim is that a warrant was constitu-tionally necessary before the government could employ thethermal imaging device. The Fourth Amendment's restric-tions on governmental searches and seizures are triggeredwhen the government invades an individual's privacy. SeeOliver v. United States,
466 U.S. 170, 177
-78 (1984). Theindividual need not show actual intrusion or invasion into a"protected space," as "the Fourth Amendment protects people-- and not simply `areas' -- against unreasonable searchesand seizures." Katz v. United States,
389 U.S. 347
, 353(1967). We follow a two-part test to determine whether theFourth Amendment has been violated by a claimed govern-mental intrusion into an individual's privacy. See id. at 361(Harlan, J., concurring); see also Smith v. Maryland, 442 U.S.735, 740 (1979) (adopting Katz reasoning). We evaluatewhether the individual has made a showing of an actual sub-jective expectation of privacy and then ask whether thisexpectation is one that society recognizes as objectively rea-sonable. See Katz,
389 U.S. at 361
(Harlan, J., concurring);see also California v. Ciraolo,
476 U.S. 207, 211
(1986).In conducting this evaluation of whether a reasonableexpectation of privacy has been infringed upon by govern-ment action, we consider the facts of the case at hand. SeeDow Chemical Co. v. United States,
476 U.S. 227
, 239 n.5(1986); United States v. Karo,
468 U.S. 705, 712
(1984)("[W]e have never held that potential, as opposed to actual,invasions of privacy constitute searches for purposes of theFourth Amendment.").[2] No one disputes that a warrant was not obtained beforethe Agema 210 was used to scan the thermal emissions fromKyllo's house. In its inquiry into the technological capacitiesof the Agema 210, the district court found that it was a "non-intrusive device which emits no rays or beams and shows acrude visual image of the heat being radiated from the outsideof the house." The court also found that "the device cannotand did not show any people or activity within the walls of thestructure" and that it "recorded only the heat being emittedfrom the home." Based upon a review of the record, we can-not conclude that these findings were in clear error. SeeOrnelas,
517 U.S. at 699
.[3] Kyllo argues in opposition that the thermal scanintruded into activities within his home, in which he had anexpectation of privacy, rather than measuring "waste heat"emitted from his home. We disagree with Kyllo, and followour sister circuits in holding that the use of thermal imagingtechnology in this case did not constitute a search under con-temporary Fourth Amendment standards. See United States v.Robinson, 62 F.3d 1325 (11th Cir. 1995); United States v.Myers, 46 F.3d 668 (7th Cir. 1995); United States v. Ishmael,48 F.3d 850 (5th Cir. 1995); United States v. Pinson, 24 F.3d1056 (8th Cir. 1994).7 Whatever the "Star Wars" capabilitiesthis technology may possess in the abstract, the thermal imag-ing device employed here intruded into nothing.A. Subjective Expectation of Privacy[4] We reject Kyllo's argument that what occurred late thatJanuary night was government intrusion into activities in hishome, in which he expected privacy, rather than a measure-ment of heat emissions radiating from his home. While Elliottinferred, correctly as it turned out, from the unusually highlevels of thermal emissions being radiated from the roof andwall that a marijuana grow was within Kyllo's home, theAgema 210 did not literally or figuratively penetrate the wallsof the Kyllo residence to expose this activity.[5] While Kyllo's decision to move his marijuana-growingoperation indoors may well show he had some subjectiveexpectation of privacy in the operation, he took no affirmativeaction to conceal the waste heat emissions created by the heatlamps needed for a successful indoor grow. The Agema 210scan simply indicated that seemingly anomalous waste heatwas radiating from the outside surface of the home, much likea trained police dog would be used to indicate that an objectwas emitting the odor of illicit drugs. See United States v.Place,
462 U.S. 696, 706
-07 (1983) (holding canine sniffs arenot searches). Kyllo made no attempt to conceal these emis-sions, demonstrating a lack of concern with the heat emittedand a lack of a subjective privacy expectation in the heat. SeeRobinson, 62 F.3d at 1328-29; Myers, 46 F.3d at 669-70;United States v. Ford, 34 F.3d 992, 995 (11th Cir. 1994). Butsee Ishmael, 48 F.3d at 854-55 (finding subjective expectationof privacy although determining it was unreasonable). Weconclude, like the district court, that the Agema 210's scanmeasured waste heat emissions that Kyllo had made noattempt to conceal, rather than peering into Kyllo's home, andthat Kyllo has demonstrated no subjective expectation of pri-vacy in these emissions from his home.B. Objectively Reasonable Expectation[6] Even if Kyllo could demonstrate a subjective expecta-tion of privacy in the heat emissions from his residence, hehas not established that this privacy expectation would beaccepted by society as "objectively reasonable. " "[T]he cor-rect inquiry is whether the government's intrusion infringesupon the personal and societal values protected by the FourthAmendment." Oliver,
466 U.S. at 182
-83.[7] While a heightened privacy expectation in the home hasbeen recognized for purposes of Fourth Amendment analysis,see Dow Chemical,
476 U.S. at 237
n.4, activities within aresidence are not protected from outside, non-intrusive, gov-ernment observation, simply because they are within thehome or its curtilage. See Florida v. Riley,
488 U.S. 445
, 449(1989) (plurality opinion); Ciraolo,
476 U.S. at 213
. The useof technology to enhance government surveillance does notnecessarily turn permissible non-intrusive observation intoimpermissible search. See id.; Dow Chemical, 476 U.S. at238-39. Much like the Fifth Circuit, we believe that, in evalu-ating whether technology has been used to aid in permissibleobservation or to perform an impermissible warrantlesssearch, the "crucial inquiry, as in any search and seizure anal-ysis, is whether the technology reveals `intimate details.' "Ishmael, 48 F.3d at 855 (quoting Dow Chemical, 476 U.S. at238).[8] The thermal emission scan performed on Kyllo's resi-dence, and the other houses in the triplex, while giving infor-mation unavailable to the naked eye, did not expose anyintimate details of Kyllo's life. The scan merely indicatedamorphous "hot spots" on the roof and exterior wall and notthe detailed images of private activity that Kyllo suggests thetechnology could expose. "Such information is neither sensi-tive nor personal, nor does it reveal the specific activitieswithin the . . . home." Ford, 34 F.3d at 997; see also Pinson,24 F.3d at 1059. Like the Court in Dow Chemical , we rejectKyllo's attempt to rely on "extravagant generalizations" aboutthe potential invasions of privacy that this sort of advancedtechnology may someday present. See Dow Chemical , 476U.S. at 239.Considering the facts of this case, and the district court'sfindings on the technology used, we cannot conclude that thissurveillance was "so revealing of intimate details as to raiseconstitutional concerns." Id. While this technology may, inother circumstances, be or become advanced to the point thatits use will step over the edge from permissible non-intrusiveobservation into impermissible warrantless search, we find noviolation of the Fourth Amendment on these facts. See id. at239 and n.5; Myers, 46 F.3d at 670 n.1.II. Omission of Divorce from the Affidavit On remand, the district court concluded that it was mislead-ing for Elliott to omit from his Affidavit seeking the searchwarrant that Kyllo and Luanne had divorced. The court thenconcluded, however, that the omission was not knowinglyfalse, or made in reckless disregard for the truth. Kyllo con-tests this conclusion.[9] At the hearing, no evidence was presented that Elliott,or the Oregon law enforcement officers who passed on infor-mation to him, knew of the divorce. Neither was there evi-dence showing that the failure to discover the divorce andinclude it in the affidavit was reckless.[10] It was not clearly erroneous for the district court tofind that the omission of the divorce was not knowingly falseor made in reckless disregard for the truth. See Dozier, 844F.2d at 705. Thus, we agree with the district court that it wasproper for the magistrate judge to consider the portion of theaffidavit related to Kyllo's marriage to Luanne in determiningwhether probable cause existed to issue the warrant.AFFIRMED.
_____________________________NOONAN, Circuit Judge, dissenting:The Thermovision 210, made and marketed by AgemaInfrared Systems, (herein the Agema 210) is described by itsmaker in the following terms: "For law enforcement agenciesand security organizations it provides a state-of-the-art meansof extending operational capabilities and securing hard evi-dence not possible before. And it does it unobtrusively, noise-lessly and immediately, requiring a minimum of operatortraining and effort." As to "Interior Surveillance," the compa-ny's sales brochure that is part of the record on appeal states:"With a field view of 8 degrees by 16 degrees, the 210, prop-erly positioned, can monitor activity in critical rooms or largefacilities, once again providing a permanent time-taggedrecord when connected to a VCR."The Agema 210 does not determine temperature butdepends for its results on a comparison between the emissionsfrom similar structures. It is not evident how these compari-sons are reliable when the operator of the Agema 210 has noinformation about the interior insulation of either the structurehe is examining or the structure he is using for comparison.The reliability of the readings of the machine is itself affectedby the operator's decision to adjust it. The defendant's expertwitness, who had had extensive experience working for theFBI, analyzed its vulnerability in these terms:"These infraredcameras can easily be manipulated to make a structure appearto be hot, when in reality it is not. This is achieved by increas-ing the gain and sensitivity buttons on the camera. The proce-dure is similar to using a 35 mm camera and manuallyopening the aperture on the lens." It is this manipulable, notvery accurate or reliable but easily usable, surveillancemachine which is at issue here.The Fourth Amendment forbids an unreasonable search bythe government. A search has been authoritatively defined asoccurring " `when an expectation of privacy that society isprepared to consider reasonable is infringed.' " United Statesv. Karo,
468 U.S. 705, 712
(1984) (quoting United States v.Jacobsen,
466 U.S. 109, 113
(1984)). The term "search" isthus not itself a helpful term on which to focus. A court'sattention is directed to the "expectation of privacy" and soci-ety's view of the reasonableness of the expectation.I start with the proposition that "[t]he sanctity of the homeis not to be disputed." Segura v. United States,
468 U.S. 796
,810 (1984). A search "inside a home without a warrant" is"presumptively unreasonable absent exigent circumstances."Karo,
468 U.S. at 715
. At the same time the Fourth Amend-ment "protects people, not places." Katz v. United States, 389U.S. 347, 351 (1967). As a consequence of this axiom, a for-bidden search can occur even when no trespass is involved.It is, therefore, not helpful to the government that the Agemareaches into the interior only by inference. An invasion ofproperty is not necessary to trigger the protection of theAmendment. See Katz,
389 U.S. at 353
.I have no doubt that Kyllo did have an expectation of pri-vacy as to what was going on in the interior of his house andthat this expectation was infringed by the government's use ofthe Agema 210 although the machine itself never penetratedinto the interior. The closest analogy is use of a telescope that,unknown to the homeowner, is able from a distance to seeinto his or her house and report what he or she is reading orwriting. Such an enhancement of normal vision by technol-ogy, permitting the government to discern what is going on inthe home, violates the Fourth Amendment. See United Statesv. Taporda, 635 F.2d 131, 139 (2d Cir. 1980) (warrantless useof telescope to see objects not visible to the naked eye vio-lates the Fourth Amendment). No principled difference existsbetween a machine capable of reading reflections of light thata telescope picks up and a machine reading the emissions ofheat as does the Agema. In each case the amplification of thesenses by technology defeats the homeowner's expectation ofprivacy. The government is not entitled to defeat this expecta-tion by technological means. See Karo,
468 U.S. at 715
.The court holds that the Agema 210 merely reads emissionsoff the roof. The court notes, reasonably enough, that there isno evidence that Kyllo had any expectation of privacy as tothese emissions. The emissions have been treated as wasteenergy, comparable to the waste disposed of as garbage thatthe government is entitled to inspect without violating theConstitution. See United States v. Robinson, 62 F.3d 1325(11th Cir. 1995), cert. denied,
517 U.S. 1220
(1996); UnitedStates v. Myers, 46 F.3d 668 (7th Cir.), cert. denied, 516 U.S.879 (1995); United States v. Pinson, 24 F.3d 1056 (8th Cir.),cert. denied,
513 U.S. 1057
(1994).This analogy fails because, unlike garbage which is pur-posely discarded, emissions of heat occur without consciousattention by the homeowner. See United States v. Ishmael, 48F.3d 850, 854 (5th Cir.) (finding warrantless thermal imagerypermissible but rejecting the "waste heat" analogy), cert.denied,
516 U.S. 818
(1995). It is strange to focus on thehomeowner's non-existent expectation as to emissions. Thehomeowner's expectation is directed to the privacy of theinterior of his home. It is that expectation which the FourthAmendment is intended to protect.On behalf of the government, two other analogies need tobe considered. If Kyllo started a fire in his fireplace there isno doubt the government could use the smoke rising from hischimney as a basis for securing a warrant if a fire in the housesuggested the commission of a crime. If Kyllo was operatinga methamphetamine laboratory in his home and the smellreached the nose of a policeman on the street, there would beprobable cause to seek a warrant. See United States v. Johns,948 F.2d 599, 603 (9th Cir. 1991). The trouble with these twoanalogies is that they both depend on unaided human sensesreading the signs from the house. In each the homeowner hasno reasonable expectation that the signs will not be observed.Our case involves amplification of the senses by technology.That kind of amplification is critical as it defeats the home-owner's expectation. It is the effect on this expectation thatmakes the amplification impermissible.Given that Kyllo does have an expectation of privacy as tothe interior of his home, is society prepared to view it as rea-sonable? Here is the point at which the protection of theFourth Amendment is in tension with the social desirability ofsuppressing crime wherever it is found. The Fourth Amend-ment is not intended to make the home a sanctuary for thecommission of crime with impunity. It is intended to allowgovernmental intrusion into the home only in exigent circum-stances or upon judicial approval of the intrusion. A differentrule might be fashioned, but the present rule is that even asearch to find probable cause for obtaining a warrant -- evensuch a search which has as its object the ultimate obtaining ofa magistrate's approval -- cannot be conducted without viola-tion of the Fourth Amendment. See Karo,
468 U.S. at 710
.Society has determined that it is reasonable for the home tobe a citadel safe from warrantless inspection. See Segura, 468U.S. at 810.It is argued that the several decisions by circuit courtsalready cited show society's disapproval of the expectation ofprivacy as to emission of heat. There are, however, cases inthe contrary direction. Two state cases within this circuit,State v. Siegal, 934 P.2d 176 (Mont. 1997), and State v.Young, 867 P.2d 593 (Wash. 1994), have found thermal imag-ing to violate state constitutions. Two courts have held it vio-lative of the Fourth Amendment. See People v. Deutsch, 44Cal. App. 4th 1224 (1996); United States v. Field, 855 F.Supp. 1518 (W.D. Wis. 1994). In the end what society is pre-pared to find reasonable must, for us, be determined by themost relevant analyses and analogies. To conclude thatbecause this court holds the expectation unreasonable it isunreasonable is to argue in a circle.The only Court of Appeals to consider this question anddetermine that the use of thermal imaging is unconstitutionalwas the Tenth Circuit in United States v. Cusumano, 67 F.3d1497 (10th Cir. 1995). The opinion was vacated on rehearingen banc on the ground that the court did not need to reach thethermal imaging question. See United States v. Cusumaro, 83F.3d 1247 (10th Cir. 1996). Consequently, the decision doesnot have more than a hypothetical character, but it has beenpraised as "the most exhaustive and compelling analysis ofthe use of a thermal imager." Wayne R. LaFave, Search andSeizure: A Treatise on the Fourth Amendment,S 2.2 (Supp.1998). Professor LaFave himself argues forcefully in supportof the analysis and conclusion. See id. The expectation ana-lyzed by Cusumano and LaFave is not the expectation of thehomeowner as to the emissions from the roof, but the home-owner's expectation as to the privacy of the interior of thehome. That the interior is the proper focus is argued by anal-ogy with Katz -- in Katz the focus having been on the phoneconversation, not on "the molecular vibrations of the glassthat encompassed [the] interior," which were the vibrationsactually picked up by the bug. Cusumano, 67 F.3d at 1501.Technological enhancement that reveals conversation isimpermissible. See Katz,
389 U.S. at 353
.The first reaction when one hears of the Agema 210 is tothink of George Orwell's 1984. Although the dread date haspassed, no one wants to live in a world of Orwellian surveil-lance. On the hearing of this case on its first appeal we wereprompt to express concern as to whether the Agema 210 could"detect sexual activity in the bedroom," and to state that atechnology revealing sexual activity was impermissible.United States v. Kyllo, 37 F.3d 526, 530 (9th Cir. 1994). Onthis appeal the majority does not deviate from this positionwhile it views the Orwellian dangers as speculative and atmost potential.The Agema 210 is a crude instrument. It reveals only twothings: Heat-causing activity within a home and the rooms orarea where the heat is being generated. For the majority theselimited capacities let the Agema 210 pass muster: The"crucial inquiry" for the majority is whether the Agema 210reveals "intimate details." Because what it reveals is not sen-sitive or personal or a specific activity, no unconstitutionalsearch is being performed. It is as though if your home wassearched by a blind policeman you would have suffered noconstitutional deprivation.The majority's error has been to focus on a phrase fromdicta on Dow Chemical Co. v. United States,
476 U.S. 227
(1986). At issue in Dow Chemical was aerial photography ofa 2,000 acre manufacturing plant. The Court held:"We con-clude that the open areas of an industrial plant complex withnumerous plant structures spread over an area of 2,000 acresare not analogous to the `curtilage' of a dwelling for purposesof aerial surveillance." Id. at 239. In reaching this conclusion,the Court observed: "It may well be, as the Government con-cedes, that surveillance of private property by using highlysophisticated surveillance equipment not generally availableto the public, such as satellite technology, might be constitu-tionally proscribed absent a warrant. But the photographs hereare not so revealing of intimate details as to raise constitu-tional concerns." Id. at 238. To rely on the phrase "intimatedetails" as stating the criterion is to wrench the phrase fromcontext. Dow Chemical was not about a home, an enclosedspace or anything going on in a home. If Dow Chemical is tobe invoked at all, the dicta on intimate details is controlled bythe dicta warning on the use of "highly sophisticated surveil-lance equipment not generally available to the public." Id.Because of its error as to the crucial inquiry, the majority seesthe dangers presented by the Agema 210 as merely potential,not actual. To the contrary, the intrusion into the home, whilegross and global, is also real. A variety of heat-producingactivities can take place within the walls of a home. As tosuch of these activities as are innocent, no one doubts thatsociety views the expectation of privacy as reasonable -- forexample, the use of a sauna in a sauna room; the making ofceramics in a kiln in the basement; the hothouse cultivation oforchids, poinsettas or other plants in a domestic greenhouse.Any of such activities can cause the emission of heat from thehome which the Agema 210 can detect. The activity will bereported as well as where it is taking place. That is the pres-ent, not potential, intrusion of privacy which the Agema 210can effect.The defense of the machine that it does not see very wellhurts the government by underscoring the unreliability of theAgema 210. This defense amounts to saying that if a consta-ble makes a blundering search, it should not really count asa search. The argument is the opposite of that which justifiedthe examinations in United States v. Place,
462 U.S. 696
, 707(1983), and Jacobsen,
466 U.S. at 123
, -- they revealed onlycontraband and nothing else. The machine as blind or blun-dering constable does not pass the criteria of the FourthAmendment.The government does not contend that the information pro-vided the magistrate was sufficient to sustain a search warrantwithout the addition of the Agema readings. As these readingsviolated the Constitution, they should be suppressed and theconviction reversed. the end
___________________________FOOTNOTES 1 Judge Brunetti has been drawn to replace the Honorable Robert R.Merhige, Jr., Senior United States District Judge for the Eastern Districtof Virginia, in this case.2 Conducting a thermal emissions scan at night is a common practice, asit decreases the likelihood that "solar loading " -- daytime solar energyaccumulation by an object -- will interfere with the effectiveness of thescan.3 Like all objects, thermal imagers themselves emit some level of infra-red radiation.4 Besides building scans such as the scan in question in this case, ther-mal imagers are used by law enforcement to aid in tasks including searchand rescue, locating fugitives, perimeter security, and tracking covert ille-gal waste discharges. Commercial uses of thermal imagers include checksfor moisture in roofs, overloading power lines, and faulty building insula-tion.5 See Franks v. Delaware,
438 U.S. 154
(1978).6 We note that a previously filed disposition of this appeal was with-drawn.7 A Tenth Circuit panel opinion in United States v. Cusumano, 67 F.3d1497, 1510 (10th Cir. 1995) finding warrantless use of a thermal imagerviolated the Fourth Amendment was vacated by an en banc court, and thecase decided without reaching the question. See United States v.Cusumano, 83 F.3d 1247 (10th Cir. 1996) (en banc). We also note that theMontana Supreme Court's holding that thermal imaging in this contextwas a "search" was decided under a state constitutional provision, moreprotective of privacy than the federal constitution. See State v. Siegal, 934P.2d 176, 183 (Mont. 1997).