Receive free daily summaries of new opinions from the U. Court of Appeals for the Ninth Circuit.
Opinion Decided April 7, Petition for Panel Rehearing Granted January 12, Opinion Withdrawn July 29, Department of Justice, Washington, D. Frye, District Judge, Presiding D.
As a matter of first impression in this circuit, Danny Lee Kyllo "Kyllo" challenges the warrantless use of a thermal imaging device as a violation of the Fourth Amendment. Kyllo also challenges reliance on a portion of an affidavit discussing his marriage to Luanne Kyllo "Luanne"but omitting mention of his divorce, arguing it should not have been considered in determining whether there was probable cause to issue a warrant to search his home.
We affirm, holding that the thermal image scan performed was not a search within the meaning of the Fourth Amendment, and that the district court did not clearly err in finding the omission of the Kyllos' divorce from the affidavit was not knowingly false or made in reckless disregard for the truth.
Factual and Procedural Background Kyllo's arrest and conviction on one count of manufacturing marijuana in violation of 21 U. S a 1 followed an investigation by a law enforcement task force into a possible conspiracy to grow and distribute marijuana.
While investigating the activities of Tova Shook, the daughter of the task force's original target, William Elliott "Elliott"an agent of the United States Bureau of Land Management, an agency participating in the task force, began to suspect Kyllo.
Oregon state law enforcement officers provided information to Elliott that strengthened his suspicions. He was told that Kyllo and Luanne resided in one unit of a triplex, another unit of which was occupied by Tova Shook and that a car registered jointly to Luanne and Kyllo parked at the triplex.
Elliott was also informed that Luanne had been arrested the month before for delivery and possession of a controlled substance and that Kyllo had once told a police informant that he and Luanne could supply marijuana.
Elliott then subpoenaed Kyllo's utility records.
Elliott compared the records to a spreadsheet for estimating average electrical use and concluded that Kyllo's electrical usage was abnormally high, indicating a possible indoor marijuana grow operation. Specifically, thermal imagers detect energy radiated from the outside surface of objects, and internal heat that has been transmitted to the outside surface of an object, which may create a differential heat pattern.
In performing its function the Agema passively records thermal emissions rather than sending out intrusive beams or rays -- acting much like a camera.
While at first used primarily by the military, thermal scanners have entered into law enforcement and civilian commercial use. Haas also noted that Kyllo's house "showed much warmer" than the other two houses in the triplex. Elliott interpreted these results as further evidence of marijuana production, inferring that the high levels of heat emission indicated the presence of high intensity lights used to grow marijuana indoors.
Elliott presented this information in an Affidavit to a magistrate Judge, seeking a search warrant for the Kyllo home. The warrant was issued and Elliott searched Kyllo's home. As Elliott had suspected, an indoor marijuana grow operation was found, with more than one hundred plants.
Marijuana, weapons, and drug paraphernalia were seized. Kyllo was indicted for manufacturing marijuana, based upon the evidence seized during the search. The district court denied Kyllo's motion to suppress the seized evidence, following a hearing.
Kyllo entered a conditional guilty plea and was sentenced to a prison term of 63 months. Kyllo then appealed the denial of the suppression motion, challenging several portions of the Affidavit as well as the warrantless thermal imager scan.
A panel of this court found that while the portion of Elliott's Affidavit discussing Kyllo's energy usage was false and misleading, the false statements were not knowingly or recklessly made.
See United States v. Following a hearing on remand, the district court concluded that the omission of the divorce from the Affidavit, while misleading, was not knowingly false or made in reckless disregard for the truth.
The district court, after hearing further evidence, made factual findings on the capabilities of the Agema and concluded no warrant was required before the thermal scan. The district court therefore found probable cause to issue the warrant, and denied the motion to suppress.
Kyllo now challenges this decision. Because it is a factual finding, we review for clear error a determination of whether false statements or omissions are intentional or reckless. We review de novo the validity of a warrantless search. Van Poyck, 77 F.Why the United States Supreme Court's Rule in Kyllo v.
United States Is Not the Final Word on the Sarilyn E. Hardee,Why the United States Supreme Court's Rule in Kyllo v. United States Is Not the Final Word on the Constitutionality of Court of Appeals, 6 the United Supreme Court granted certiorari in. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DANNY LEE KYLLO, Defendant-Appellant. No. D.C.
No. CRHJF. Appeal from the United States District Court for the . United States Court of Appeals,Ninth Circuit. UNITED STATES of America, Plaintiff-Appellee, v.
Danny Lee KYLLO, Defendant-Appellant. No. Kyllo, No. Cr. FR, WL (vetconnexx.com Mar. 15, ). We review the district court's finding that these statements were not made with reckless regard for the truth under the clearly.
United States of America, Plaintiff-appellee, v. Danny Lee Kyllo, Defendant-appellant, 37 F.3d (9th Cir. ) case opinion from the U.S. Court of Appeals for the Ninth Circuit Log In Sign Up. Case opinion for US Supreme Court KYLLO v. UNITED STATES. Read the Court's full decision on FindLaw.
Not a Legal Professional? DANNY LEE KYLLO, PETITIONER v. The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent with this opinion.
Case opinion for US Supreme Court KYLLO v. UNITED STATES. Read the Court's full decision on FindLaw. Not a Legal Professional?
DANNY LEE KYLLO, PETITIONER v. The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent with this opinion.