No. 95-1341 In the Supreme Court of the United States OCTOBER TERM, 1995 THEODORE ROBINSON, SR., PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney General JOSEPH C. WYDERKO Attorney Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the use of a Forward Looking Infra- red Device (FLIR) to detect the intensity of heat emanating from petitioner's residence constituted an unreasonable search in violation of the Fourth Amendment. 2. Whether the agent's affidavit in support of a search warrant for petitioner's residence established probable cause for the search. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Argument . . . . 5 Conclusion . . . . 12 TABLE OF AUTHORITIES Cases: California v. Ciraolo, 476 U. S.207 (1986) . . . . 6, 7, 9 Dow Chemical Co. v. United States, 476 U.S. 227 (1986) . . . . 6, 7, 8 Florida v. Riley, 488 U.S. 445 (1989) . . . . 6 Katz v. United States, 389 U.S. 347 (1967) . . . . 6 Nix v. Williams, 467 U.S. 431 (1984) . . . . 10 Oliver v. United States, 466 U.S. 170 (1984) . . . .6, 7 United States v. Cusumano, 67 F.3d 1497 (10th Cir. 1995) . . . . 9 United States v. Domitrovich, 852 F. Supp. 1460 (E.D. Wash. 1994), aff'd on other grounds, 57 F.3d 1078 (9th Cir. 1995) . . . . 10 United States v. Ishmael, 48 F.3d 850(5th Cir.), cert. denied, 116 S. Ct. 74, 75 (1995) . . . . 8, 9 United States v. Kyllo, 37 F.3d 526 (9th Cir. 1994) . . . . 10 United States v. Myers, 46 F.3d 668 (7th Cir.), cert. denied, 116 S. Ct. 213 (1995) . . . . 9 United States v. Penny-Feeney, 773 F. Supp. 220 (D. Haw. 1991), aff'd on other grounds, 984 F.2d 1053 (9th Cir. 1993) . . . . 10 United States v. Pinson, 24 F.3d 1056 (8th Cir.), cert. denied, 115 S. Ct. 664 (1994) . . . . 7, 9 United States v. Place, 462 U.S. 696 (1983) . . . . 9 (III) ---------------------------------------- Page Break ---------------------------------------- IV Constitution and statutes: Page U.S. Const. Amend. IV . . . . 4, 5, 9 18 U.S.C. 924(C)(1) . . . . 2 21 U.S.C. 841(a)(1) . . . . 2 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-1341 THEODORE ROBINSON, SR., PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 20-43) is reported at 62 F.3d 1325. The orders of the district court (Pet. App. 1-8) denying petitioner's motion to suppress are unreported. JURISDICTION The judgment of the court of appeals was entered on August 31, 1995. A petition for rehearing was denied on November 20, 1995. Pet. App. 44-45. The petition for a writ of certiorari was filed on February 20, 1996 (a Tuesday following a federal holiday). The juris- diction of this Court is invoked under 28 U.S.C. 1254(1). ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT After entering a conditional guilty plea in the United States District Court for the Middle District of Alabama, petitioner was convicted of manufactur- ing and possessing marijuana with intent to dis- tribute it, in violation of 21 U.S.C. 841(a)(1); and using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1). He was sentenced to 130 months' imprison- ment, to be followed by four years of supervised release. The court of appeals affirmed. Pet. App. 20- 43. 1. In December 1991, Agent Charles West of the Alabama Department of Public Safety learned that 30 high-pressure sodium lights had been shipped from California to petitioner's address in Tuskegee, Ala- bama. Agent West knew that such lights are often used by individuals to grow marijuana indoors. He also knew that such lights, which are commonly used to illuminate intersections on interstate highways, consume a large amount of electricity and generate a large amount of heat. Agent West subsequently learned that petitioner had ordered similar lights as well as hydroponic equipment, which is also often used to grow marijuana indoors, in 1989 and 1990. Pet. App. 26-27 Gov't C.A. Br. 2-3. Agent West subpoenaed petitioner's utility records. The records showed that petitioners average kilo- watt consumption of 5,570 hours with an average utility statement of approximately $411 for June, July, and August of 1991 increased to nearly 10,000 kilowatt hours with a utility statement of $562 for December 1991. During his investigation, Agent West observed that petitioner owned an attractive ---------------------------------------- Page Break ---------------------------------------- 3 house with a swimming pool and a nearby lot con- taining a new prefabricated building, and he estimated that the house contained 2,800 square feet. Indivi- duals who owned houses of comparable size told the agent that their monthly utility statements were between $130 and $150. Agent West learned that the 30 high-pressure sodium lights cost slightly more than $7,000 and that petitioner had paid for the lights with a cashier's check. He also determined that petitioner had not filed state income tax returns with the Alabama Department of Revenue. Pet. App. 27; Gov't C.A. Br. 3-4. At. Agent West's direction, a helicopter crew con- ducted aerial surveillance of petitioner's house with a Forward Looking Infrared Receiver (FLIR). The FLIR is a thermal imaging device that detects differ- ences between the amounts of heat emitted from various sources. The differences in surface tempera- ture are displayed on videotape as shapes ranging from black or dark gray when an object emits little heat to white when an object emits intense heat. The FLIR showed that petitioner's house was consider- ably warmer than the surrounding houses.. Pet, App. 27-28, 39 n.2; Gov't C.A. Br. 4. On January 30, 1992, Agent West applied for and obtained a search warrant for petitioner's house. When the warrant was executed the following day, Agent West and other agents found a large indoor marijuana growing operation in the house. They also found a shotgun, a rifle, and two revolvers near the marijuana growing operation. Pet. App. 28; Gov't C.A. Br. 4. 2. The district court denied petitioner's motion to suppress the evidence seized pursuant to the search warrant. Pet. App. 1-8. It held that the aerial FLIR ---------------------------------------- Page Break ---------------------------------------- 4 surveillance of petitioner's house did not constitute an unlawful search under the Fourth Amendment. Id. at 2-3. The court also concluded that Agent West's affidavit in support of the search warrant established probable cause to justify issuance of the warrant. Id. at 4-6. 3. The court of appeals affirmed. Pet. App. 20-43. It held that the use of the FLIR device to detect the heat emitted from petitioner's house did not con- stitute an unreasonable search under the Fourth Amendment. Id. at 29-34. The court noted that "a party alleging an unconstitutional search under the Fourth Amendment must establish both a subjective and objective expectation of privacy to succeed." Id. at 29-30. The court concluded that petitioner had not satisfied either component of that two-part test. Be- cause "the record d[id] not indicate that [petitioner] affirmatively took any action to prevent the resulting heat from being emitted into the atmosphere above his house," the court held that petitioner "ha[d] not established a subjective expectation of privacy in this heat emitted from his home." Id. at 31. In addition, the court concluded that petitioner had "failed to establish an objective or reasonable expectation of privacy in the heat emitted from his house resulting from the unlawful marijuana cultivation inside, even if he had met the subjective component" of the applicable constitutional test. Id. at 34. The court was "unconvinced that society would ever accept use of the Fourth Amendment to shield unlawful activity within one's home when there are noninvasive meth- ods of detecting such criminal activity through legitimate byproducts, such as the heat at issue in this case." Ibid. ---------------------------------------- Page Break ---------------------------------------- 5 The court of appeals also held that Agent West's affidavit in support of the search warrant established probable cause to justify issuance of the warrant. Pet. App. 34-37. The court explained that "[t]he ther- mal imagery evidence in addition to the cumulative impact of the other evidence amply demonstrated a fair probability that marijuana cultivation was occur- ring in [petitioner's] house." Id. at 37. "Notwith- standing the additional evidence obtained from the aerial FLIR surveillance," the court "note[d] that the weight of the other evidence would have provided sufficient probable cause for issuance of the search warrant in question." Id. at 36. Judge Edmondson concurred. Pet. App. 38. He admitted to "considerable doubt" on the question "whether [petitioner] had a subjective expectation of privacy in the heat generated by his indoor marijuana cultivation." Ibid. Because he "believe[d] the subjec- tive intent issue could be decided either way without affecting the outcome of this case," Judge Edmondson "decline[d] to decide the unnecessary and * * * delicate question of subjective intent." Ibid. ARGUMENT 1. Petitioner contends (Pet. 9-14) that the use of the FLIR device during the aerial surveillance of his residence constituted an unreasonable search under the Fourth Amendment. The court of appeals' deci- sion rejecting that claim is correct and does not conflict with any decision of this Court or of any other court of appeals. Moreover, the agent's affidavit in support of the search warrant in this case estab- lished probable cause to justify the issuance of the search warrant even in the absence of the results of the FLIR surveillance. ---------------------------------------- Page Break ---------------------------------------- 6 This Court employs a two-part test to determine whether an individual has a constitutionally protected expectation of privacy in an object or location: "[F]irst, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" California v. Ciraolo, 476 U.S. 207, 211 (1986); see also Oliver v. United States, 466 U.S. 170, 177 (1984); Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). In Ciraolo, the Court held that a police overflight of a private residence did not require a warrant. The Court concluded that an individual has no reasonable expectation of privacy in an area (the backyard of his home) that is visible-to the naked eye from an aircraft in navigable airspace. 476 U.S. at 212-214; see also Florida v. Riley, 488 U.S. 445, 449-452 (1989) (plurality opinion). In Dow Chemical Co. v. United States, 476 U.S. 227, 234-239 (1986), the Court simi- larly held that the use of an aerial mapping camera to photograph an industrial manufacturing complex from navigable airspace did not require a warrant. In this case, petitioner did not satisfy either com- ponent of the applicable two-part. First, peti- tioner did "not establish] a subjective expectation of privacy in th[e] heat emitted from his home." Pet. App. 31. As the court of appeals explained, "[w]hile [petitioner] attempted to conceal his marijuana grow- ing operation by conducting it inside his home, the record does not indicate that he affirmatively took any action to prevent the resulting heat from being emitted into the atmosphere above his house." ld. at 30-31. Because "[petitioner's] inaction regarding the heat generated from his marijuana cultivation demon- strate[dl his lack of concern for it[]" he had not ---------------------------------------- Page Break ---------------------------------------- 7 manifested a subjective expectation of privacy in the object of the challenged search. Id. at 31. Second, even if petitioner had a subjective expec- tation of privacy in the level of heat emitted from his residence, it was not a legitimate expectation worthy of societal protection. In Ciraolo, this Court empha- sized that "'[t]he test of legitimacy is not whether the individual chooses to conceal assertedly "private" activity,' but instead 'whether the government's in- trusion infringes upon the personal and societal values protected by the Fourth Amendment.'" 476 U.S. at 212 (quoting Oliver v. United States, 466 U.S. at 181-183). Here, as the court of appeals correctly explained, "[n]o revelation of intimate, even definitive, detail within the house was detectable [by the FLIR surveillance]; there was merely a gross, nondiscrete bright image indicating the heat emitted from the residence." Pet. App. 32. Moreover, "there was no intrusion whatsoever into [petitioner's] home because the emitted heat rose from his house and then was measured by FLIR surveillance." Id. at 33. Hence, "[n]one of the interests which form the basis for the need for protection of a residence, namely the intimacy, personal autonomy and privacy associated with a home, are threatened by [FLIR] thermal imagery." Id. at 33-34 (quoting United States v. Pinson, 24 F.3d 1056, 1059 (8th Cir.), cert. denied, 115 S. Ct. 664 (1994)). In Dow Chemical, this Court acknowledged that "surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a war- rant." 476 U.S. at 238. The Court went on to explain, however, that ---------------------------------------- Page Break ---------------------------------------- 8 the photographs here are not so revealing of intimate details as to raise constitutional con- cerns. Although they undoubtedly give EPA more detailed information than naked-eye views, they remain limited to an outline of the facility's buildings and equipment. The mere fact that human vision is enhanced somewhat, at least to the degree here, does not, give rise to constitu- tional problems: An electronic device to pene- trate walls or windows so as to hear and record confidential discussions of chemical formulae or other trade secrets would raise very different and far more serious questions. Id. at 238-239 (footnote omitted). The Court thus focused on the potential of a particular surveillance technique to reveal information that is genuinely private. In this case, "the FLIR surveillance revealed only that [petitioner's] house emitted significantly more heat than others in the neighborhood of similar size." Pet. App. 32. As the court of appeals explained, "[s]uch heat detection with thermal imagery is not the `functional equivalent of an X-ray machine in that it allows officers to "see" within a structure what it otherwise cannot see with the naked eye.'" Id. at 32- 33 (quoting United States v. Ishmael, 48 F.3d 850, 856 (5th Cir.), cert. denied, 116 S. Ct. 74, 75 (1995)). Rather, the thermal imaging technique is more near- ly comparable to conventional photography. While conventional photography records the image of an object based on the object's emission of radiation from the visible portion of the electromagnetic spectrum, thermal imaging simply records images based on the object's emissions from the infrared portion of the ---------------------------------------- Page Break ---------------------------------------- 9 electromagnetic spectrum. Quite unlike x-ray pho- tography, thermal imaging merely produces a picture of the surface temperature of the exterior of an object based on the radiation that object emits. Because the FLIR device does not penetrate the walls or other- wise reveal what is occurring within a residence, its use does not "infringe[] upon the personal and societal values protected by the Fourth Amendment." Ciraolo, 476 U.S. at 212 (quotation omitted). 1. Although petitioner asserts (Pet. 13) that it is "self-evident" that the use of FLIR device is "suffi- ciently intrusive" to constitute a search, the court of appeals' decision in this case is consistent with the decisions of the other courts of appeals that have ruled on the issue. Like the court of appeals here, the Fifth, Seventh, and Eighth Circuits have held that the use of a thermal imaging device to detect heat emanating from a structure does not constitute an unreasonable search. Ishmael, 48 F.3d at 853-857 United States v. Myers, 46 F.3d 668, 669-670 (7th Cir.), cert. denied, 116 S. Ct. 213 (1995); Pinson, 24 F.3d at 1058-1059. 2. ___________________(footnotes) 1 The use of the FLIR device in this case was no more intrusive than the warrantees use of a trained drug detection dog to sniff luggage in a public place that was upheld in United States v. Place, 462 U.S. 696, 707 (1983). As the court of ap- peals observed, "[j]ust as odor escapes a compartment or build- ing and is detected by the sense-enhancing instrument of a canine sniff, so also does heat escape a home and is detected by the sense-enhancing infrared camera." Pet. App. 33 (quoting Pinson, 24 F.3d at 1058). 2 In United States v. Cusumano, 67 F.3d 1497, 1499-1509 (1995), a panel of the Tenth Circuit ruled that the use of a thermal imaging device to detect heat emitted from a resi- dence violated the Fourth Amendment. On December 5, 1995, ---------------------------------------- Page Break ---------------------------------------- 10 Even if the question presented warranted review by this Court, moreover, the instant case would be an inappropriate vehicle for its resolution. The court of appeals concluded that Agent West's affidavit would have established probable cause to search petitioner's home even in the absence of the information it con- tained regarding thermal imaging. See Pet. App. 36; page 11, infra. A determination that use of the FLIR device was improper therefore would not entitle peti- tioner to suppression of the evidence seized pursuant to the search warrant. Cf. Nix v. Williams, 467 U.S. 431, 443 (1984) ("the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred"). 2. Petitioner also contends (Pet. 14-199 that Agent West's affidavit in support of the search warrant for his residence did not establish probable cause for issuance of the search warrant. That fact-bound contention does not warrant this Court's review. __________________(footnotes) however, the Tenth Circuit vacated the panel's decision in Cusumano and granted rehearing en banc in that case. In United States v. Kyllo, 37 F.3d 526, 530-531 (1994), the Ninth Circuit found that the record was insufficiently devel- oped to determine whether the use of a thermal imaging device to scan the defendant's residence constituted a search. The Ninth Circuit remanded for an evidentiary hearing on the technological capacities of the thermal imaging device used in that case, See also United States v. Domitrovick, 852 F. Supp. 1460, 1472-1475 (E.D. Wash. 1994), aff'd on other grounds, 57 F.3d 1078 (9th Cir. 1995) (Table); United States v. Penny- Feeney, 773 F. Supp. 220, 225-228 (D. Haw. 1991), aff'd on other grounds, 984 F.2d 1053 (9th Cir. 1993). ---------------------------------------- Page Break ---------------------------------------- 11 The court of appeals correctly concluded that "[t]he thermal imagery evidence in addition to the cumu- lative impact of the other evidence amply demon- strated a fair probability that marijuana cultivation was occurring in [petitioner's] house." Pet. App. 37. Moreover, "[n]otwithstanding the additional evidence obtained from the aerial FLIR surveillance," the court of appeals found that "the weight of the other evidence would have provided sufficient probable cause for issuance of the search warrant in question." Id. at 36. In addition to the results of the FLIR surveillance, Agent West's affidavit in support of the search warrant showed that (1) petitioner had ordered and received 30 high-pressure sodium lights from a California company specializing in indoor growing equipment and had paid for the lights with a cashier's check in excess of $7,000; (2) petitioner had purchased other growing equipment from the same company in the past (3) high-pressure sodium lights can be used to grow marijuana indoors; (4) high-pressure sodium lights consume a large amount of electricity and generate a large amount of heat (5) the electrical consumption for petitioner's residence increased in the month that he received the high-pressure sodium lights and was higher than for houses of comparable size; 3. and (6) petitioner lived in an attractive house ___________________(footnotes) 3 The record clearly contradicts petitioner's repeated assertions (Pet. 6, 12, 16-17) that Agent West did not subpoena and obtain the utility records showing the electrical consump- tion for petitioner's residence until January 31, 1992-the day after the agent applied for and obtained the search warrant on January 30, 1992. At the suppression hearing, Agent-West acknowledged that his written report dated February 5, 1992, stated that he had served the subpoena on Dixie Electric Cooperative on January 31, 1992. Agent West testified, how- ---------------------------------------- Page Break ---------------------------------------- 12 with a swimming pool in an affluent area but had not filed state income tax returns. Id. at 35-36. The court of appeals therefore correctly concluded that the agent's affidavit in support of the search warrant for petitioner's residence established probable cause with or without the additional information provided by the FLIR surveillance. That fact-specific determination does not warrant this Court's review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney General JOSEPH C. WYDERKO Attorney APRIL 1996 ___________________(footnotes) ever, that that date was not correct and that he believed the correct date was January 3, 1992. 4/7/92 Tr. 14-15. Moreover, since the agent's affidavit in support of the search warrant discusses the utility records and states that they had been obtained by subpoena, it is clear that Agent West obtained the utility records before he applied for the search warrant. 1/30/92 Affidavit 1. ---------------------------------------- Page Break ----------------------------------------