Is it hot in here? The Eighth Circuit's reduction of Fourth Amendment protections in the home: United States v. Kattaria.

• Author: Marcantel, William E.

1. INTRODUCTION

   Several years ago, the United States military developed thermal imaging technology for targeting and reconnaissance purposes which law enforcement agencies subsequently adopted as a means of conducting surveillance in support of counter-narcotics efforts. (2) Police use thermal imaging devices in counter-narcotics operations by scanning buildings and homes in order to determine higher heat emissions from buildings. (3) These higher than normal thermal readings of homes act as indicators of possible marijuana grow operations due to the high output of heat from the indoor lamps commonly used for such activities. (4)

   Even though a majority of jurisdictions have held that a thermal imaging scan of a home does not qualify as a search under the Fourth Amendment, and thus require a warrant, (5) in 2001, the United States Supreme Court held in Kyllo v. United States that the use of thermal imaging devices by police in their investigatory capacities required the issuance of a warrant. (6) The Eighth Circuit, in their recent decision of United States v. Kattaria, misconstrued the Supreme Court's holding in United States v. Kyllo. In Kattaria, the Eighth Circuit found that although a warrant is required prior to police using a thermal imaging device on a home, the traditional probable cause standard need not be met prior to a court or magistrate issuing such a warrant. Thus, the Eighth Circuit has created a hybrid Terry (7) stop / search warrant.

2. FACTS AND HOLDING

   In 2004, police arrested Mohammed Kattaria after executing search warrants on two of his homes both of which contained marijuana grow operations. (8) On May 6, 2004, Special Agent Michael Perry applied "for a warrant authorizing aerial use of a thermal imaging device to measure the heat emitting from [Kattaria's] home." (9) The supporting affidavit that Perry submitted to the Ramsey County District Court averred that approximately two months prior "a cooperating defendant (CD) described Kattaria, identified his photo, said they had occasionally smoked marijuana over the past ten years, and knew Kattaria had a criminal history." (10) The CD also told Perry "that in 2002 he observed a marijuana grow operation in the basement" of one of Kattaria's homes. (11) In the affidavit, Perry also claimed that Kattaria had "a 1997 conviction and a 2000 arrest for marijuana offenses." (12) Perry further asserted that, after checking utility company records, Kattaria's home had a much higher electric power consumption between November 2003 to April 2004 than five other nearby homes. (13) Perry's final averment in support of his request for a search warrant to conduct a thermal imaging scan was that he had driven by Kattaria's home on numerous occasions and observed the blinds drawn and nothing that would explain the high energy consumption. (14)

   Based on Perry's affidavit, on May 6, 2004, the district court issued a warrant authorizing a nighttime, aerial thermal imaging scan of Kattaria's home, which Perry executed the following day. (15) Later, an "experienced thermal imaging operator" determined that the readings from Kattaria's home were "consistent with indoor marijuana grow operations." (16) Based on the thermal imaging findings, the county district court granted Perry warrants to conduct physical searches of Kattaria's home on which a thermal imaging device was used, as well as another home owned by Kattaria. (17) Another investigator also sought and received a physical search warrant for a third home owned by Kattaria. (18) All three warrants to conduct physical searches relied on Perry's earlier affidavit as well as the results of the thermal imaging scan of Kattaria's home. (19) The physical searches of Kattaria's homes resulted in the police finding "548 marijuana plants, bags of marijuana, and other incriminating evidence." (20)

   After police arrested Kattaria on drug charges, Kattaria filed a motion in the United States District Court for the District of Minnesota to suppress the evidence gathered during the physical searches of his properties. (21) Kattaria's motion to suppress and motion for a Franks hearing were denied. (22) As a result of the denials of Kattaria's motions, he conditionally pled guilty "to conspiracy to manufacture, distribute, and possess with intent to distribute fifty or more marijuana plants in violation of 21 U.S.C. [section][section] 841(a)(1), (b)(1)(C), and 846." (23)

   On appeal to the Eighth Circuit, Kattaria argued that the warrant to conduct a thermal imaging scan of his home was not supported by probable cause and thereby violated the Fourth Amendment because "there was no statement as to the CD's reliability, the CD's observation of a grow operation in the basement two years earlier was uncorroborated stale information, and Perry's affidavit included inaccurate information." (24) In addition to the thermal imaging scan warrant, Kattaria also challenged the validity of the three subsequent physical search warrants. He claimed that since the information from the thermal imaging scan should have been suppressed the three subsequent warrants to conduct physical searches based on that information should not have been issued and the evidence supporting the physical search warrants failed to meet the probable cause requirement. (25) Kattaria also argued that the district court erred in denying his motion for a Franks hearing and that the district court awarded an unreasonably harsh sentence of ninety-eight months in prison. (26) The Eighth Circuit responded to Kattaria's appeals by rejecting his arguments and affirming the decision of the district court. (27) The Eighth Circuit held (28) that the warrant authorizing a thermal scan of Kattaria's home did not require probable cause and, in the alternative, there was sufficient evidence to support a finding of probable cause in order to issue each of the search warrants. (29)

3. LEGAL BACKGROUND (30)

   The Fourth Amendment declares the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." (31) The Supreme Court has, on numerous occasions, interpreted and refined the Fourth Amendment protection against unreasonable searches and seizures through the development of several doctrines, most notably those doctrines relating to warrantless searches and administrative warrants. In Kattaria, the Eighth Circuit interpreted several of these distinctly separate doctrines, leading the Eighth Circuit to misconstrue the Supreme Court's holding in Kyllo, (32) and thereby allow the issuance of a warrant for a thermal imaging scan of a private home with a quantum of evidence less than that of probable cause. (33)

   1. Necessity of a Warrant and Probable Cause

      In Katz v. United States, the Supreme Court laid out the modern test for determining whether there is "a constitutionally protected reasonable expectation of privacy" requiring, presumptively, law enforcement authorities to have a valid warrant for such invasion to be lawful. (34) In Katz, the appellant was convicted of violating a federal statute which prohibited the transmission of "wagering information by telephone." (35) Evidence used to convict the appellant included telephone conversations recorded by the FBI using an electronic listening device placed "outside of the public telephone booth from which he had placed his calls." (36) Relying on precedent that "surveillance without any trespass and without the seizure of any material object," (37) was not a search under the Fourth Amendment, the government argued that they had not physically penetrated Katz's phone booth and as a result did not violate the Fourth Amendment when the FBI recorded Katz's conversation without a warrant. However, the Supreme Court rejected this argument, overturning the precedent on which the government relied. (38) The Supreme Court held that because the government acted without a valid search warrant, the recording of Katz's conversation could not be used in evidence to support his conviction and accordingly the Supreme Court reversed the judgment of the court of appeals. (39)

      The significance of this change in precedent was that the court no longer applied the Fourth Amendment to only places, but rather to people based on the expectation of privacy that was to be expected in certain settings. (40) This change in Fourth Amendment doctrine allowed for Justice Harlan, in his concurrence, to derive the current standard for determining if a search requires a warrant. (41) In establishing the Katz test for determining whether a warrant is required for a search, Justice Harlan set forth a two-pronged analysis that (1) "a person [must] have exhibited an actual (subjective) expectation of privacy" and (2) "that the expectation be one that society is prepared to recognize as 'reasonable.'" (42) If both prongs of the test are met then a warrant must issue prior to the State conducting a search.

      Nineteen years after Katz, the Supreme Court laid out its current standard of probable cause for a warrant to issue in Illinois v. Gates. (43) The defendants in Gates were arrested after a search of their vehicle and home by police, pursuant to a warrant issued by a judge, turned up weapons, contraband, and several hundred pounds of marijuana. (44) The Illinois Supreme Court held that the warrant was insufficiently supported "to permit a determination of probable cause." (45) The United States Supreme Court reversed the Illinois Supreme Court's decision to exclude evidence gathered pursuant to the warrant, because the Illinois Supreme Court applied an improper standard in reviewing whether or not there was sufficient evidence to support a finding of probable cause by the issuing court. (46) The United States Supreme Court held that probable cause should be determined based on a...