BARRY J. PORTMAN
Federal Public Defender
Assistant Federal Public Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant XXX R. XXX, JR.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
XXX R. XXX, JR. And KUNTIDA PENSAKUL-XXX ,
Defendant.
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No. CR 01 0078 MMC
NOTICE OF MOTION AND MOTION TO SUPPRESS EVIDENCE
Date: June 6, 2001
Time: 2:30 p.m.
NOTICE IS HEREBY GIVEN that on June 6, 2001 at 2:30 p.m., or as soon thereafter as counsel may be heard before the United States District Judge Maxine M. Chesney, defendant XXX R. XXX, JR. will and does move for an order suppressing any and all evidence obtained as a result of the searches XXX, XXXX, Santa Rosa, California, conducted by DEA agents and other law enforcement personnel on February 10, 2001. This motion is made on the grounds that the searches conducted by government agents violated the Fourth Amendment and the search warrant affidavit sworn by DEA Special Agent Jon Pickette contains knowing and intentional omissions and misrepresentations of material facts which render the search warrant void for want of probable cause.
This motion is based upon this Notice, on the Memorandum of Points and Authorities which accompany this motion, on the declarations of Federal Public Defender Chief Investigator Fred Anderson, forensic expert William Logan and _______, on the papers and records on file in this matter, and on such oral and documentary evidence as may be presented at the hearing of this motion. In light of the factual issues presented by this motion, Mr. XXX requests that the Court conduct an evidentiary hearing under the authority of Franks v. Delaware, 438 U.S. 154 (1978). Mr. XXX joins in the motion to suppress filed byXXX XXX concurrently with this motion.
MEMORANDUM OF POINTS AND AUTHORITIES
1. Preliminary Statement
This marijuana cultivation case comprises a laundry list of Fourth Amendment violations. The DEA conducted a search of the subject property under authority of a search warrant obtained by Magistrate Judge James Larson of this Court. The application in support of the search warrant recited information from a confidential informant, the results of thermal imaging of the subject property, and observations made during physical surveillance of the subject property. The picture painted by this application was in fact distorted, as demonstrated by subsequent investigation -- the unidentified confidential informant lacked any firsthand knowledge; the DEA's use of thermal imaging on a home or curtilage absent a warrant has been conclusively foreclosed by the United States Supreme Court; the DEA's surveillance was well within the curtilage of the subject property; and, the agent's affidavit in support of the search warrant application was fraught with omissions and misstatements of material facts. Almost every aspect of the search in this matter violated the Fourth Amendment.
2. Statement of Facts
The following facts are based upon the affidavit filed in support of the search warrant, the search warrant and the DEA report detailing the execution of the search warrant and seizure of evidence unless otherwise stated. Mr. XXX does not concede the truth of any statements taken from the foregoing.
The Informant
According to his search warrant affidavit ("Affidavit"), DEA Agent Jon Pickette or his colleagues interviewed an informant regarding Mr. XXX. The informant stated that Mr. XXX was "cultivating marijuana in underground containers" on a parcel of property in Humboldt County. (Affidavit 3:25-27.) The informant also stated that Mr. XXX had built a residence on the property in 1996. (Affidavit 3:27-4:1.) Beyond this, the affidavit sets forth no information regarding facts allegedly obtained from the the informant.
The Surveillance
DEA agents employed a number of surveillance methods in investigating the subject property, including aerial
photographs (Affidavit, ¶ 6), thermal imaging (Affidavit, ¶ 13) and night vision goggles. (Affidavit 5:2.) At
approximately 12:30 a.m. on June 11, 2001, agents walked onto the subject property via an access road. (DEA Form 6
dated January 23, 2001 "Form 6,"¶ 3.) They encountered a gate and fence across the road and crossed it. (Ibid.) After
walking three miles further the agents encountered another gate across the road. They similarly crossed this gate. (Form
6, ¶ 5.) They claim to have heard the sound of a diesel engine. (Form 6, ¶ 6.) After coming within 200 feet of the home,
and from a vantage point at the top of the driveway, the Agent Pickette claims to have smelled "the strong odor of
marijuana." (Affidavit, 5:24-27.) Agent Pickette noticed that the home was a two-story building with "brown, wood
siding" a pitched roof with "composite shingles." He also noticed "four gas cylinders" leaning against the wall of the
home, but failed to notice "any gates or fences." (Affidavit, ¶ 10.) The agents then left the property. (Affidavit ¶ 11.)
3. Argument
Although police may in good faith rely upon a warrant issued by a neutral and detached magistrate (United States v. Leon, 468 U.S. 897, 906 (1984)), suppression of evidence remains an appropriate remedy if the warrant itself is the fruit of a prior illegal search (Wong Sun v. United States, 371 U.S. 471 (1963)) or the affiant inentionally or recklessly misleads the magistrate while applying for the warrant. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). Each of the foregoing infirmities is present here.
A. The Surveillance Described in the Warrant Affidavit Constituted an Illegal Search
(1) Thermal Imaging
DEA agents conducted nighttime aerial thermal imaging surveillance at the subject property on January 23, 2001. (Affidavit, ¶ 13.) "Abnormal heat signatures" were observed near the residence (Ibid.), and in an area [not owned by Mr. XXX]. (Affidavit, ¶ 14.) The agent stated that such heat sources were "inconsistent with the surroundings" but consistent with equipment utilized at marijuana cultivation sites. (Affidavit, 7:10-14.)
In Kyllo v. United States, 533 U.S. ___, 121 S.Ct. 2038 (2001) the Court squarely confronted inevitable clash between ever-more-intrusive law enforcement technology and the sanctity of one's home, holding that surveillance with thermal imaging and other devices "not in general public use" to observe details of the home is a search "and is presumptively unreasonable without a warrant." 121 S.Ct. at 2046. Therefore, any "abnormal heat signatures" observed near the residence in this case resulted from an illegal search and cannot constitute grounds for obtaining the warrant. (1)
The same result obtains with respect to the agents' use of night vision goggles. The goggles allegedly allowed agents to view in the dead of night such details as the nature and color of the homes' structural materials, the composition of the home's roof, and the presence of four gas cylinders leaning against the home's outer wall. (Affidavit, 6:1-4.) These too were technologically-enhanced observations of the home which resulted from an illegal search under Kyllo, and will not support the application for the search warrant.
(2) The Agents' Observations Were Made From An Area Within the Home's Curtilage
It is settled law in this circuit that the protection afforded homes by the Fourth Amendment extends to the curtilage. United States v. Van Damme, 48 F.3d 461, 465 (9th Cir. 1995). Whether the area at issue is within the curtilage is determined by the four-factor test set forth In United States v. Dunn, 480 U.S. 294 (1987) the Court created guidelines to assist in defining the scope of a home's curtilage, including (1) the proximity of the area claimed to be curtilage to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by the people passing it. Dunn, 480 U.S. at 300. The absence of a factor does not mean that the area is not within a home's curtilage. Indeed, the Court eschewed mechanical application of the guidelines and instructed courts to focus upon "whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." 480 U.S. at 301. This determination, in turn, is a fact-intensive inquiry. United States v. Traynor, 990 F.2d 1153, 1156-57 (9th Cir.1993)(holding that whether an area is within a home's curtilage is a fact-intensive inquiry and thus the district court's holding will be reviewed for clear error).
In this case, the analysis also is informed by the geographical location of the residence. Humboldt County is a rural area, in certain areas densely wooded and in many areas sparsely populated. The rural location of a premises may perforce extend the boundaries of the curtilage. See United States v. Furrow, 229 F.3d 805, 817 (9th Cir. 2000)(rural nature of premises supported finding that outlying shop building roughly 100 feet from residence was within curtilage).
With the foregoing in mind, it is clear that every fact of consequence demonstrates that the DEA agents were within the home's curtilage, i.e. an area in which Mr. XXX had a reasonable expectation of privacy. at the time they made their observations.
Proximity to Home
As stated ante, agents crossed through two gates and intruded several miles upon Mr. XXX's property while conducting their surveillance. As is evident from the aerial photograph utilized by the agents, Mr. XXX chose to construct his home and adjacent structure within the boundaries of a clearing. The observations set forth in the affidavit were made at a point well within the clearing.
Enclosure Surrounding Home
As the aerial photograph further illustrates, the residence and its buildings are within a clearing that is bordered on all sides by dense forest. As observed in Furrow, a timbered area may itself suffice to enclose a home and outbuildings and render the area within its boundaries curtilage. 229 F.3d at 817.
Nature of Uses
It is beyond honest dispute that the area served as a residence. The DEA Form 6 ("Form 6") which details the execution of the search warrant refers to three adults and two children who were present in the home at the time of the search. (Form 6, ¶ 2.) Further, the home contained pervasive indicia of occupancy and use as a home including: a well-kept garden and children's toys in the yard immediately in front of the residence (Declaration of Frederick W. Anderson "Anderson Decl.," __); a full kitchen, with a stove refrigerator, cooking area, sink, dishes and silverware (Anderson Decl., ____); furniture including a couch, coffee table, lamps, wood burning stove, large screen television and video games (Anderson Decl. __); and, furnished bedrooms with a bath and shower. (Anderson Decl. .)
Protection Against Observation
Mr. XXX went to great lengths to protect his property from prying eyes. The most telling protection is the location itself -- it's difficult to imagine a more remote area. The nearest public highway is ___ miles away. Densely wooded areas completely and effectively surround the property. The area is only accessible via private access road. The access road(s) themselves clearly are marked with signs stating that the area is residential, that the property is private and that no trespassing is allowed. Irrespective of which direction one takes to approach the property, two gates restrict road access.
Timing of the Search
In addition to the Dunn factors is an issue which has drawn little juridical attention in this circuit, but nonetheless is a significant factor in this case: the timing of the search. The agents' intrusions in this case took place in the "wee small hours of the morning" (2), i.e. between 1 a.m. and 3:30 a.m. Searches conducted at this time of night necessarily involve greated intrusion than ordinary searches and therefore require greater justification. Fed. R. Crim. P. 41(c)(1). As a leading commentator observes:
Unquestionably, "the time of a police search of an occupied family home" constitutes a "significant factor in determining
whether, in a Fourth Amendment sense, the search is "unreasonable." The Supreme Court has . . . taken note of the
special thret to privacy presented by nighttime police intrusions. Perhaps even more significant, given the fact that the
search and seizure clause is to be "construed in the light of what was deemed unreasonable search and seizure when it was
adopted," is the strong aversion to nighttime searches in pre-Fourth Amendment common law.
2 LaFave, Search and Seizure, § 4.7(b), p. 591-592 (3rd ed. 1996)(citations omitted); see also Monroe v. Pape, 365 U.S. 167 (1961), overruled on other grounds (3), ("nighttime search [i]s the evil in its most obnoxious form).
The rationale for this rule is self-evident. The sanctity of a home is at its apogee in the nighttime, when the intimate activities which animate the Fourth Amendment's privacy concerns typically enjoy their fullest expression.
It is clear that Mr. XXX took numerous, if not extreme, steps to safeguard his privacy, that he had a reasonable expectation of privacy, and that the agents' surveillance constituted an illegal search.
B. Absent The Thermal Imaging Scan and Observations Made by Agents While Within The Curtilage of the Residence, There is Insufficient Evidence to Support Issuance of A Search Warrant
A magistrate's decision to issue a search warrant is tested by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213 (1983). This test requires the magistrate to determine whether
given all the circumstances set forth in the affidavit . . ., including the "veracity" and "basis of knowledge" of persons
supplying hearsay information, there is a fair probability that . . . evidence of a crime will be found in a particular place.
462 U.S. at 238.
Because the thermal imaging was performed without a warrant, and the agents'observations were made well within the curtilage of Mr. XXX's home, they cannot support the issuance of the search warrant. Any information obtained as a result of an illegal search must be excised from the warrant affidavit. At that time, the Court must view the affidavit as if it contained only the remaining information and the government bears an "onerous burden of convincing [the] court that no information gained from the illegal entry affected either the law enforcement officer's decision to seek a warrant or the magistrate's decision to grant it." Murray v. United States, 487 U.S. 553, 539-540 (1988).
In any event, the remaining information is wholly insufficienty to sustain probable cause for the search. At the outset, the affidavit provided to the magistrate no information with which to assay the "veracity" or "basis of knowledge" of the informant. The informant is not identified. There is no statement regarding whether he had ever given information in aid of a criminal investigation, or how he came to know the alleged facts he passed on as part of his plea agreement. There is no statement that the informant personally observed the cultivation or even the presence of any marijuana on the subject property, or learned from someone familiar with the property that marijuana was being cultivated there. The sum total of the informant's proffered "facts" is that Mr. XXX grew marijuana in underground containers on property purchased from XXX Shepp, that Mr. XXX had built a residence on the property in 1996, and that a woman named "Irish Chrissy" was involved in cultivating marijuana with Mr. XXX. This information is charitably described as skeletal and is wholly insufficient to justify a search warrant. See United States v. Clark, 31 F.3d 831, 834-835 (9th Cir. 1994)(given that hearsay information from anonymous informant is highly suspect, tip that marijuana was being cultivated which gave no indication of reliability was insufficient to establish probable cause that defendant was growing marijuana).
The other information is similarly deficient. Neither the real property transactions and records described in paragraphs 18, 22 and 25 nor vehicle records described in paragraph 15 supply a shred of evidence suggesting that marijuana was being cultivated at the subject property. Accordingly, there was no probable cause to issue the search warrants and this Court must suppress all evidence seized under them.
C. The Affidavit Contains Deliberate and/or Reckless Omissions of Fact
"[T]he Fourth Amendment mandates that a defendant be permitted to challenge a warrant affidavit valid on its face when it contains deliberate or reckless omissions of fact that tend to mislead." United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985). If necessary to the probable cause finding, any allegedly false statements in the warrant affidavit must be tested in a hearing if the defense so requests. Franks v. Delaware, 438 U.S. 154, 155-156 (1978). In the Ninth Circuit, the defense need only make a substantial showing that "(1) the affidavit contains intentionally or recklessly false statements, and (2) the affidavit purged of its falsities would not be sufficient to support a finding of probable cause." United States v. Lefkowitz, 618 F.2d 1313, 1317 (9th Cir.),cert. denied, 449 U.S. 824 (1980).
Here, the affidavit is replete with omissions of fact. The agent conveniently omitted reference to any of the numerous signs indicating that the access road was private property and part of a residential area. (Anderson Decl, ¶ .) Similarly, no mention is made of the fencing that was erected along the access road immediately in front of the residence, nor the "no trespassing" sign clearly affixed to the fence. (Anderson Decl., ¶ .) The gas canisters which Agent Pickette suggested contained carbon dioxide were in fact propane canisters that, given the remoteness of the area and lack of utilities, one would ordinarily expect to find in abundance. (Anderson Decl., ¶ .) In light of the foregoing, it seems doubtful that Agent Pickette's decision to bury the fact that no utility lines existed at the subject property in paragraph 17 of the affidavit, between unrelated references to DMV and tax records, was mere accident.
Then there is the question of Agent Pickette's sense of smell. He claims to have smelled "the strong odor of marijuana" while standing 200 feet from the residence. (Affidavit, ¶ 10.) This is, to say the least, doubtful. The odor of marijuana is produced by the volatilization (evaporation) of aromatic hydrocarbons called "terpines." These hydrocarbons are a component of the resin exuded by the plants during the later stages of growth. As the molecules travel through the air and come in contact with the nasal ganglia, or nasal nerves, they trigger the sense of smell. (Declaration of William Logan "Logan Decl.," ¶ 5.)
In this case, the architecture of the underground grow room, which allegedly emitted the odor the agents claimed to have smelled, specifically routed the molecules through underground chambers via exhaust fans. (Logan Decl., ¶ 8.) There was no visible or apparent above-ground exhaust from the fan systems. Id. The fans in the grow room would cause all the air currents to move toward the exhaust system and be exhausted through the underground chambers. Id. This routing system would prevent the odor of marijuana from escaping from the door of the grow room since airflow would be into the room, not out of the room. Id. Additionally, it is not possible for terpines to migrate through dirt and become airborne thereafter. Id. In light of the architecture of the grow room and the location of the agents as stated in the search warrant application, it can be stated to a reasonable scientific certainty that the odor of marijuana could not have been detected. (Logan Decl., ¶ 9.)
4. Conclusion
For the reasons stated, XXX R. XXX, Jr. respectfully requests that the Court suppress all evidence seized from XXX, XXXX, Santa Rosa, California. Alternatively, Mr. XXX requests that the Court conducts an evidentiary hearing under Murray and Franks.
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
JEROME E. MATTHEWS
Assistant Federal Public Defender
1. It is no answer that the surveillance in this case took place from the air rather than the ground. To the contrary, Kyllo took pains to point out that while technologically enhanced aerial photography of non-residential areas such as industrial complexes worked no violation of the Fourth Amendment, it was "important that [an industrial complex] is not an area immediately adjacent to a private home, where privacy expectations are most heightened." Kyllo, 121 S.Ct. at 2043, citingDow Chemical Co. v. United States, 476 U.S. 227, 237 n. 4 (italics in original).
2. With apologies to Bob Hilliard, David Mann and Frank Sinatra for shameless use of lyrics they made popular.
3. Monell v. Dept. of Social Services, 436 U.S. 658 (1978).