No. 99-8508 

In the Supreme Court of the United States 

DANNY KYLLO, PETITIONER 

v. 

UNITED STATES OF AMERICA 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

SUPPLEMENTAL APPENDIX 

SETH P. WAXMAN 

Solicitor General 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

Counsel of Record 
for Respondent 

PETITION FOR CERTIORARI FILED: 
MARCH 7, 2000 

CERTIORARI GRANTED: SEPTEMBER 26, 2000 

TABLE OF CONTENTS 

Page 

Court of appeals opinion (filed Sept. 9, 1999) ................. 
1 

Court of appeals order (filed July 29, 1999) .................... 
21 

Court of appeals opinion (decided Apr. 7, 1998) ............ 
22 

District court opinion (decided Mar. 15, 1996) ............... 
37 

Court of appeals memordanum (decided Oct. 4, 
1994) ............................................................................... 48 

District court opinion (filed Dec. 4, 1992) ........................ 

59 

Order denying petition for rehearing (filed 

Dec. 14, 1999) ................................................................ 

72 

Hass Report .......................................................................... 73 

(I) 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 96-30333 

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE 

v. 

DANNY LEE KYLLO, DEFENDANT-APPELLANT 

Argued and Submitted Nov. 5, 1997 
Opinion Decided April 7, 1998 

Petition for Rehearing with Suggestion 
for Rehearing En Banc Decided 
May 20, 1998 

Petition for Panel Rehearing 
Granted Jan. 12, 1999 

Opinion Withdrawn July 29, 1999 
Decided Sept. 9, 1999 

Before: BRUNETTI,1 NOONAN, and HAWKINS, Cir- 
cuit Judges. 

Opinion by Judge HAWKINS; Dissent by Judge 
NOONAN. 

1 Judge Brunetti has been drawn to replace the Honorable 
Robert R. Merhige, Jr., Senior United States District Judge for 
the Eastern District of Virginia, in this case. 

(1) 

2 

MICHAEL DALY HAWKINS, Circuit Judge: 

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, argu- 
ing 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 manu- 
facturing marijuana in violation of 21 U.S.C. § 841(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 par- 
ticipating 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 

3 

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 es- 
timating average electrical use and concluded that 
Kyllo’s electrical usage was abnormally high, indicating 
a possible indoor marijuana grow operation. 

At 3:20 in the morning in mid-January from the 
passenger seat of a car parked on the street, Sergeant 
Daniel Haas (“Haas”) of the Oregon National Guard 
examined the triplex of homes where Kyllo resided 
with an Agema Thermovision 210 thermal imaging 
device (“the Agema 210”).2 All objects emit heat, in the 
form of infrared radiation, which can be observed and 
recorded by thermal imaging devices, such as the 
Agema 210. 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 210 passively 
records thermal emissions rather than sending out 
intrusive beams or rays—acting much like a camera.3 A 
viewfinder then translates and displays the results to 

2 Conducting a thermal emissions scan at night is a common 
practice, as it decreases the likelihood that “solar loading”— 
daytime solar energy accumulation by an object—will interfere 
with the effectiveness of the scan. 

3 Like all objects, thermal imagers themselves emit some level 
of infrared radiation. 

4 

the human eye, with the area around an object being 
shaded darker or lighter, depending on the level of heat 
being emitted. While at first used primarily by the 
military, thermal scanners have entered into law 
enforcement and civilian commercial use.4 

Using the Agema 210, Haas concluded that there was 
high heat loss emanating from the roof of Kyllo’s home 
above the garage, and from one wall. 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 produc- 
tion, 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 

4 Besides building scans such as the scan in question in this 
case, thermal imagers are used by law enforcement to aid in tasks 
including search and rescue, locating fugitives, perimeter security, 
and tracking covert illegal waste discharges. Commercial uses of 
thermal imagers include checks for moisture in roofs, overloading 
power lines, and faulty building insulation. 

5 

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. 
Kyllo, 37 F.3d 526 (9th Cir. 1994). While concluding it 
was therefore proper for the magistrate judge to con- 
sider that portion of the Affidavit in determining prob- 
able cause to issue the search warrant, the panel re- 
manded for an evidentiary hearing on the intrusiveness 
and capabilities of the Agema 210 and a Franks5 
hearing on whether Elliott had knowingly or recklessly 
omitted Kyllo and Luanne’s divorce from his Affidavit. 
See id. at 531. 

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. See United 
States v. Kyllo, No. Cr. 92-51-FR, 1996 WL 125594 (D. 
Or. Mar. 15, 1996). The district court, after hearing 
further evidence, made factual findings on the capabili- 
ties of the Agema 210 and concluded no warrant was 
required before the thermal scan. The district court 
therefore found probable cause to issue the warrant, 

5 See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 
L.Ed.2d 667 (1978). 

6 

and denied the motion to suppress. See id. Kyllo now 
challenges this decision.6 

Standard of Review 

“A district court must suppress evidence seized 
under a warrant when an affiant has knowingly or 
recklessly included false information in the affidavit.” 
See United States v. Dozier, 844 F.2d 701, 705 (9th Cir. 
1988). Because it is a factual finding, we review for 
clear error a determination of whether false statements 
or omissions are intentional or reckless. See id.; United 
States v. Senchenko, 133 F.3d 1153 (9th Cir. 1998). 

We review de novo the validity of a warrantless 
search. See United 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. See Ornelas v. United 
States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L.Ed.2d 
911 (1996); United States v. Hernandez, 27 F.3d 1403, 
1406 (9th Cir. 1994). 

Analysis 

I. Search and Seizure Analysis 

Kyllo’s essential claim is that a warrant was con- 
stitutionally necessary before the government could 
employ the thermal imaging device. The Fourth 
Amendment’s restrictions on governmental searches 
and seizures are triggered when the government 
invades an individual’s privacy. See Oliver v. United 
States, 466 U.S. 170, 177-78, 104 S. Ct. 1735, 80 L.Ed.2d 

6 We note that a previously filed disposition of this appeal was 
withdrawn. 

7 

214 (1984). The individual need not show actual intru- 
sion or invasion into a “protected space,” as “the Fourth 
Amendment protects people—and not simply ‘areas’— 
against unreasonable searches and seizures.” Katz v. 
United States, 389 U.S. 347, 353, 88 S. Ct. 507, 19 
L.Ed.2d 576 (1967). We follow a two-part test to 
determine whether the Fourth Amendment has been 
violated by a claimed governmental intrusion into an 
individual’s privacy. See id. at 361, 88 S. Ct. 507 
(Harlan, J., concurring); see also Smith v. Maryland, 
442 U.S. 735, 740, 99 S. Ct. 2577, 61 L.Ed.2d 220 (1979) 
(adopting Katz reasoning). We evaluate whether the 
individual has made a showing of an actual subjective 
expectation of privacy and then ask whether this 
expectation is one that society recognizes as objectively 
reasonable. See Katz, 389 U.S. at 361, 88 S. Ct. 507 
(Harlan, J., concurring); see also California v. Ciraolo, 
476 U.S. 207, 211, 106 S. Ct. 1809, 90 L.Ed.2d 210 (1986). 

In conducting this evaluation of whether a reasonable 
expectation of privacy has been infringed upon by 
government action, we consider the facts of the case at 
hand. See Dow Chemical Co. v. United States, 476 U.S. 
227, 239 n. 5, 106 S. Ct. 1819, 90 L.Ed.2d 226 (1986); 
United States v. Karo, 468 U.S. 705, 712, 104 S. Ct. 3296, 
82 L.Ed.2d 530 (1984) (“[W]e have never held that po- 
tential, as opposed to actual, invasions of privacy con- 
stitute searches for purposes of the Fourth Amend- 
ment.”). 

No one disputes that a warrant was not obtained 
before the Agema 210 was used to scan the thermal 
emissions from Kyllo’s house. In its inquiry into the 
technological capacities of the Agema 210, the district 
court found that it was a “non-intrusive device which 

8 

emits no rays or beams and shows a crude visual image 
of the heat being radiated from the outside of the 
house.” The court also found that “the device cannot 
and did not show any people or activity within the walls 
of the structure” and that it “recorded only the heat 
being emitted from the home.” Based upon a review of 
the record, we cannot conclude that these findings were 
in clear error. See Ornelas, 517 U.S. at 699, 116 S. Ct. 
1657. 

Kyllo argues in opposition that the thermal scan 
intruded into activities within his home, in which he had 
an expectation of privacy, rather than measuring 
“waste heat” emitted from his home. We disagree with 
Kyllo, and follow our sister circuits in holding that the 
use of thermal imaging technology in this case did not 
constitute a search under contemporary 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.3d 1056 (8th Cir. 1994).7 Whatever the “Star Wars” 
capabilities this technology may possess in the abstract, 
the thermal imaging device employed here intruded 
into nothing. 

7 A Tenth Circuit panel opinion in United States v. Cusumano, 
67 F.3d 1497, 1510 (10th Cir. 1995) finding warrantless use of a 
thermal imager violated the Fourth Amendment was vacated by 
an en banc court, and the case decided without reaching the ques- 
tion. See United States v. Cusumano, 83 F.3d 1247 (10th Cir. 1996) 
(en banc). We also note that the Montana Supreme Court’s holding 
that thermal imaging in this context was a “search” was decided 
under a state constitutional provision, more protective of privacy 
than the federal constitution. See State v. Siegal, 281 Mont. 250, 
934 P.2d 176, 183 (1997). 

9 

A. Subjective Expectation of Privacy 

We reject Kyllo’s argument that what occurred late 
that January night was government intrusion into 
activities in his home, in which he expected privacy, 
rather than a measurement of heat emissions radiating 
from his home. While Elliott inferred, correctly as it 
turned out, from the unusually high levels of thermal 
emissions being radiated from the roof and wall that a 
marijuana grow was within Kyllo’s home, the Agema 
210 did not literally or figuratively penetrate the walls 
of the Kyllo residence to expose this activity. 

While Kyllo’s decision to move his marijuana- 
growing operation indoors may well show he had some 
subjective expectation of privacy in the operation, he 
took no affirmative action to conceal the waste heat 
emissions created by the heat lamps needed for a 
successful indoor grow. The Agema 210 scan simply 
indicated that seemingly anomalous waste heat was 
radiating from the outside surface of the home, much 
like a trained police dog would be used to indicate that 
an object was emitting the odor of illicit drugs. See 
United States v. Place, 462 U.S. 696, 706-07, 103 S. Ct. 
2637, 77 L.Ed.2d 110 (1983) (holding canine sniffs are 
not searches). Kyllo made no attempt to conceal these 
emissions, demonstrating a lack of concern with the 
heat emitted and a lack of a subjective privacy expecta- 
tion in the heat. See Robinson, 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). But see Ishmael, 48 F.3d at 
854-55 (finding subjective expectation of privacy al- 
though determining it was unreasonable). We conclude, 
like the district court, that the Agema 210’s scan mea- 
sured waste heat emissions that Kyllo had made no 

10 

attempt to conceal, rather than peering into Kyllo’s 
home, and that Kyllo has demonstrated no subjective 
expectation of privacy in these emissions from his 
home. 

B. Objectively Reasonable Expectation 

Even if Kyllo could demonstrate a subjective ex- 
pectation of privacy in the heat emissions from his 
residence, he has not established that this privacy 
expectation would be accepted by society as “objec- 
tively reasonable.” “[T]he correct inquiry is whether 
the government’s intrusion infringes upon the personal 
and societal values protected by the Fourth Amend- 
ment.” Oliver, 466 U.S. at 182-83, 104 S. Ct. 1735. 

While a heightened privacy expectation in the home 
has been recognized for purposes of Fourth Amend- 
ment analysis, see Dow Chemical, 476 U.S. at 237 n.4, 
106 S. Ct. 1819, activities within a residence are not 
protected from outside, non-intrusive, government 
observation, simply because they are within the home 
or its curtilage. See Florida v. Riley, 488 U.S. 445, 449, 
109 S. Ct. 693, 102 L.Ed.2d 835 (1989) (plurality 
opinion); Ciraolo, 476 U.S. at 213, 106 S. Ct. 1809. The 
use of technology to enhance government surveillance 
does not necessarily turn permissible non-intrusive 
observation into impermissible search. See id.; Dow 
Chemical, 476 U.S. at 238-39, 106 S. Ct. 1819. Much like 
the Fifth Circuit, we believe that, in evaluating 
whether technology has been used to aid in permissible 
observation or to perform an impermissible warrantless 
search, the “crucial inquiry, as in any search and seizure 
analysis, is whether the technology reveals ‘intimate 
details.’ ” 

Ishmael, 48 F.3d at 855 (quoting Dow 
Chemical, 476 U.S. at 238, 106 S. Ct. 1819). 

11 

The thermal emission scan performed on Kyllo’s 
residence, and the other houses in the triplex, while 
giving information unavailable to the naked eye, did not 
expose any intimate details of Kyllo’s life. The scan 
merely indicated amorphous “hot spots” on the roof and 
exterior wall and not the detailed images of private 
activity that Kyllo suggests the technology could 
expose. “Such information is neither sensitive nor per- 
sonal, nor does it reveal the specific activities within the 

. . . home.” Ford, 34 F.3d at 997; see also Pinson, 24 
F.3d at 1059. Like the Court in Dow Chemical, we 
reject Kyllo’s attempt to rely on “extravagant gen- 
eralizations” about the potential invasions of privacy 
that this sort of advanced technology may someday 
present. See Dow Chemical, 476 U.S. at 239, 106 S. Ct. 
1819. 

Considering the facts of this case, and the district 
court’s findings on the technology used, we cannot 
conclude that this surveillance was “so revealing of 
intimate details as to raise constitutional concerns.” Id. 
While this technology may, in other circumstances, be 
or become advanced to the point that its use will step 
over the edge from permissible non-intrusive observa- 
tion into impermissible warrantless search, we find no 
violation of the Fourth Amendment on these facts. See 
id. at 239 and n. 5, 106 S. Ct. 1819; Myers, 46 F.3d at 670 

n.1. 

II. Omission of Divorce from the Affidavit 

On remand, the district court concluded that it was 
misleading for Elliott to omit from his Affidavit seeking 
the search warrant that Kyllo and Luanne had di- 
vorced. The court then concluded, however, that the 

12 

omission was not knowingly false, or made in reckless 
disregard for the truth. Kyllo contests this conclusion. 

At the hearing, no evidence was presented that 
Elliott, or the Oregon law enforcement officers who 
passed on information to him, knew of the divorce. 
Neither was there evidence showing that the failure to 
discover the divorce and include it in the affidavit was 
reckless. 

It was not clearly erroneous for the district court to 
find that the omission of the divorce was not knowingly 
false or made in reckless disregard for the truth. See 
Dozier, 844 F.2d at 705. Thus, we agree with the 
district court that it was proper for the magistrate 
judge to consider the portion of the affidavit related to 
Kyllo’s marriage to Luanne in determining whether 
probable cause existed to issue the warrant. 

AFFIRMED. 

NOONAN, Circuit Judge, dissenting: 

The Thermovision 210, made and marketed by 
Agema Infrared Systems, (herein the Agema 210) is 
described by its maker in the following terms: “For law 
enforcement agencies and security organizations it 
provides a state-of-the-art means of extending opera- 
tional capabilities and securing hard evidence not possi- 
ble before. And it does it unobtrusively, noiselessly and 
immediately, requiring a minimum of operator training 
and effort.” As to “Interior Surveillance,” the com- 
pany’s sales brochure that is part of the record on 
appeal states: “With a field view of 8 degrees by 16 
degrees, the 210, properly positioned, can monitor 
activity in critical rooms or large facilities, once again 

13 

providing a permanent time-tagged record when con- 
nected to a VCR.” 

The Agema 210 does not determine temperature but 
depends for its results on a comparison between the 
emissions from similar structures. It is not evident how 
these comparisons are reliable when the operator of the 
Agema 210 has no information about the interior 
insulation of either the structure he is examining or the 
structure he is using for comparison. The reliability of 
the readings of the machine is itself affected by the 
operator’s decision to adjust it. The defendant’s expert 
witness, who had had extensive experience working for 
the FBI, analyzed its vulnerability in these terms: 
“These infrared cameras can easily be manipulated to 
make a structure appear to be hot, when in reality it is 
not. This is achieved by increasing the gain and 
sensitivity buttons on the camera. The procedure is 
similar to using a 35 mm camera and manually opening 
the aperture on the lens.” It is this manipulable, not 
very accurate or reliable but easily usable, surveillance 
machine which is at issue here. 

The Fourth Amendment forbids an unreasonable 
search by the government. A search has been 
authoritatively defined as occurring “ ‘when an expecta- 
tion of privacy that society is prepared to consider 
reasonable is infringed.’ ” 

United States v. Karo, 468 
U.S. 705, 712, 104 S. Ct. 3296, 82 L.Ed.2d 530 (1984) 
(quoting United States v. Jacobsen, 466 U.S. 109, 113, 
104 S. Ct. 1652, 80 L.Ed.2d 85 (1984)). The term 
“search” is thus not itself a helpful term on which to 
focus. A court’s attention is directed to the “expecta- 
tion of privacy” and society’s view of the reasonable- 
ness of the expectation. 

14 

I start with the proposition that “[t]he sanctity of the 
home is not to be disputed.” Segura v. United States, 
468 U.S. 796, 810, 104 S. Ct. 3380, 82 L.Ed.2d 599 (1984). 
A search “inside a home without a warrant” is “pre- 
sumptively unreasonable absent exigent circum- 
stances.” Karo, 468 U.S. at 715, 104 S. Ct. 3296. At the 
same time the Fourth Amendment “protects people, 
not places.” Katz v. United States, 389 U.S. 347, 351, 88 
S. Ct. 507, 19 L.Ed.2d 576 (1967). As a consequence of 
this axiom, a forbidden search can occur even when no 
trespass is involved. It is, therefore, not helpful to the 
government that the Agema reaches into the interior 
only by inference. An invasion of property is not 
necessary to trigger the protection of the Amendment. 
See Katz, 389 U.S. at 353, 88 S. Ct. 507. 

I have no doubt that Kyllo did have an expectation of 
privacy as to what was going on in the interior of his 
house and that this expectation was infringed by the 
government’s use of the Agema 210 although the 
machine itself never penetrated into the interior. The 
closest analogy is use of a telescope that, unknown to 
the homeowner, is able from a distance to see into his or 
her house and report what he or she is reading or 
writing. Such an enhancement of normal vision by 
technology, permitting the government to discern what 
is going on in the home, violates the Fourth Amend- 
ment. See United States v. Taborda, 635 F.2d 131, 139 
(2d Cir. 1980) (warrantless use of telescope to see 
objects not visible to the naked eye violates the Fourth 
Amendment). No principled difference exists between 
a machine capable of reading reflections of light that a 
telescope picks up and a machine reading the emissions 
of heat as does the Agema. In each case the amplifica- 
tion of the senses by technology defeats the home- 

15 

owner’s expectation of privacy. The government is not 
entitled to defeat this expectation by technological 
means. See Karo, 468 U.S. at 715, 104 S. Ct. 3296. 

The court holds that the Agema 210 merely reads 
emissions off the roof. The court notes, reasonably 
enough, that there is no evidence that Kyllo had any 
expectation of privacy as to these emissions. The emis- 
sions have been treated as waste energy, comparable to 
the waste disposed of as garbage that the government 
is entitled to inspect without violating the Constitution. 
See United States v. Robinson, 62 F.3d 1325 (11th Cir. 
1995), cert. denied, 517 U.S. 1220, 116 S. Ct. 1848, 134 
L.Ed.2d 949 (Cite as: 190 F.3d 1041, *1049) (1996); 
United States v. Myers, 46 F.3d 668 (7th Cir.), cert. 
denied, 516 U.S. 879, 116 S. Ct. 213, 133 L.Ed.2d 144 
(1995); United States v. Pinson, 24 F.3d 1056 (8th Cir.), 
cert. denied, 513 U.S. 1057, 115 S. Ct. 664, 130 L.Ed.2d 
598 (1994). 

This analogy fails because, unlike garbage which is 
purposely discarded, emissions of heat occur without 
conscious attention by the homeowner. See United 
States v. Ishmael, 48 F.3d 850, 854 (5th Cir.) (finding 
warrantless thermal imagery permissible but rejecting 
the “waste heat” analogy), cert. denied, 516 U.S. 818, 
818, 116 S. Ct. 74, 75, 133 L.Ed.2d 34, 34 (1995). It is 
strange to focus on the homeowner’s non-existent ex- 
pectation as to emissions. The homeowner’s ex- 
pectation is directed to the privacy of the interior of his 
home. It is that expectation which the Fourth Amend- 
ment is intended to protect. 

On behalf of the government, two other analogies 
need to be considered. If Kyllo started a fire in his 
fireplace there is no doubt the government could use 

16 

the smoke rising from his chimney as a basis for 
securing a warrant if a fire in the house suggested the 
commission of a crime. If Kyllo was operating a 
methamphetamine laboratory in his home and the smell 
reached the nose of a policeman on the street, there 
would be probable cause to seek a warrant. See United 
States v. Johns, 948 F.2d 599, 603 (9th Cir. 1991). The 
trouble with these two analogies is that they both 
depend on unaided human senses reading the signs 
from the house. In each the homeowner has no reason- 
able 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 homeowner’s expectation. It is the effect on 
this expectation that makes the amplification imper- 
missible. 

Given that Kyllo does have an expectation of privacy 
as to the interior of his home, is society prepared to 
view it as reasonable? Here is the point at which the 
protection of the Fourth Amendment is in tension with 
the social desirability of suppressing crime wherever it 
is found. The Fourth Amendment is not intended to 
make the home a sanctuary for the commission of crime 
with impunity. It is intended to allow governmental 
intrusion into the home only in exigent circumstances 
or upon judicial approval of the intrusion. A different 
rule might be fashioned, but the present rule is that 
even a search to find probable cause for obtaining a 
warrant—even such a search which has as its object the 
ultimate obtaining of a magistrate’s approval—cannot 
be conducted without violation of the Fourth Amend- 
ment. See Karo, 468 U.S. at 710, 104 S. Ct. 3296. 
Society has determined that it is reasonable for the 

17 

home to be a citadel safe from warrantless inspection. 
See Segura, 468 U.S. at 810, 104 S. Ct. 3380. 

It is argued that the several decisions by circuit 
courts already cited show society’s disapproval of the 
expectation of privacy as to emission of heat. There 
are, however, cases in the contrary direction. Two 
state cases within this circuit, State v. Siegal, 281 Mont. 
250, 934 P.2d 176 (1997), and State v. Young, 123 Wash. 
2d 173, 867 P.2d 593 (1994), have found thermal imaging 
to violate state constitutions. Two courts have held it 
violative of the Fourth Amendment. See People v. 
Deutsch, 44 Cal. App. 4th 1224, 52 Cal. Rptr.2d 366 
(1996); United States v. Field, 855 F. Supp. 1518 (W.D. 
Wis. 1994). In the end what society is prepared to find 
reasonable must, for us, be determined by the most 
relevant analyses and analogies. To conclude that 
because this court holds the expectation unreasonable it 
is unreasonable is to argue in a circle. 

The only Court of Appeals to consider this question 
and determine that the use of thermal imaging is 
unconstitutional was the Tenth Circuit in United States 

v. Cusumano, 67 F.3d 1497 (10th Cir. 1995). The opin- 
ion was vacated on rehearing en banc on the ground 
that the court did not need to reach the thermal imag- 
ing question. See United States v. Cusumano, 83 F.3d 
1247 (10th Cir. 1996). Consequently, the decision does 
not have more than a hypothetical character, but it has 
been praised as “the most exhaustive and compelling 
analysis of the use of a thermal imager.” Wayne R. 
LaFave, Search and Seizure: A Treatise on the Fourth 
Amendment, § 2.2 (Supp. 1998). Professor LaFave 
himself argues forcefully in support of the analysis and 
conclusion. See id. The expectation analyzed by 

18 

Cusumano and LaFave is not the expectation of the 
homeowner as to the emissions from the roof, but the 
homeowner’s expectation as to the privacy of the 
interior of the home. That the interior is the proper 
focus is argued by analogy with Katz—in Katz the focus 
having been on the phone conversation, not on “the 
molecular vibrations of the glass that encompassed 
[the] interior,” which were the vibrations actually 
picked up by the bug. Cusumano, 67 F.3d at 1501. 
Technological enhancement that reveals conversation is 
impermissible. See Katz, 389 U.S. at 353, 88 S. Ct. 507. 

The first reaction when one hears of the Agema 210 
is to think of George Orwell’s 1984. Although the dread 
date has passed, no one wants to live in a world of 
Orwellian surveillance. On the hearing of this case on 
its first appeal we were prompt to express concern as to 
whether the Agema 210 could “detect sexual activity in 
the bedroom,” and to state that a technology revealing 
sexual activity was impermissible. United States v. 
Kyllo, 37 F.3d 526, 530 (9th Cir. 1994). On this appeal 
the majority does not deviate from this position while it 
views the Orwellian dangers as speculative and at most 
potential. 

The Agema 210 is a crude instrument. It reveals only 
two things: Heat-causing activity within a home and the 
rooms or area where the heat is being generated. For 
the majority these limited capacities let the Agema 210 
pass muster: The “crucial inquiry” for the majority is 
whether the Agema 210 reveals “intimate details.” 
Because what it reveals is not sensitive or personal or a 
specific activity, no unconstitutional search is being 
performed. It is as though if your home was searched 

19 

by a blind policeman you would have suffered no con- 
stitutional deprivation. 

The majority’s error has been to focus on a phrase 
from dicta on Dow Chemical Co. v. United States, 476 
U.S. 227, 106 S. Ct. 1819, 90 L.Ed.2d 226 (1986). At 
issue in Dow Chemical was aerial photography of a 
2,000 acre manufacturing plant. The Court held: “We 
conclude that the open areas of an industrial plant 
complex with numerous plant structures spread over an 
area of 2,000 acres are not analogous to the ‘curtilage’ of 
a dwelling for purposes of aerial surveillance.” Id. at 
239, 106 S. Ct. 1819. In reaching this conclusion, the 
Court observed: “It may well be, as the Government 
concedes, that surveillance of private property by using 
highly sophisticated surveillance equipment not gener- 
ally available to the public, such as satellite technology, 
might be constitutionally proscribed absent a warrant. 
But the photographs here are not so revealing of 
intimate details as to raise constitutional concerns.” Id. 
at 238, 106 S. Ct. 1819. To rely on the phrase “intimate 
details” as stating the criterion is to wrench the phrase 
from context. Dow Chemical was not about a home, an 
enclosed space or anything going on in a home. If Dow 
Chemical is to be invoked at all, the dicta on intimate 
details is controlled by the dicta warning on the use of 
“highly sophisticated surveillance equipment not gener- 
ally available to the public.” Id. Because of its error as 
to the crucial inquiry, the majority sees the dangers 
presented by the Agema 210 as merely potential, not 
actual. To the contrary, the intrusion into the home, 
while gross and global, is also real. A variety of heat- 
producing activities can take place within the walls of a 
home. As to such of these activities as are innocent, no 
one doubts that society views the expectation of 

20 

privacy as reasonable—for example, the use of a sauna 
in a sauna room; the making of ceramics in a kiln in the 
basement; the hothouse cultivation of orchids, poinset- 
tias or other plants in a domestic greenhouse. Any of 
such activities can cause the emission of heat from the 
home which the Agema 210 can detect. The activity 
will be reported as well as where it is taking place. 
That is the present, not potential, intrusion of privacy 
which the Agema 210 can effect. 

The defense of the machine that it does not see very 
well hurts the government by underscoring the 
unreliability of the Agema 210. This defense amounts 
to saying that if a constable makes a blundering search, 
it should not really count as a search. The argument is 
the opposite of that which justified the examinations 
in United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 
2637, 77 L.Ed.2d 110 (1983), and Jacobsen, 466 U.S. at 
123, 104 S. Ct. 1652,—they revealed only contraband 
and nothing else. The machine as blind or blundering 
constable does not pass the criteria of the Fourth 
Amendment. 

The government does not contend that the infor- 
mation provided the magistrate was sufficient to sus- 
tain a search warrant without the addition of the 
Agema readings. As these readings violated the Con- 
stitution, they should be suppressed and the conviction 
reversed. 

21 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 96-30333 

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE 

v. 

DANNY LEE KYLLO, DEFENDANT-APPELLANT 

Filed: July 29, 1999 

Before: BRUNETTI,8 NOONAN, and HAWKINS, 

Circuit Judges. 

The Opinion filed April 7, 1998 and appearing at 140 
F.3d 1249 (9th Cir.1998), is withdrawn. The panel, 
being unanimously of the view that the issues are well 
framed by the briefs filed to date, will proceed to issue 
an opinion without further argument. 

8 Judge Brunetti was drawn to replace the Honorable Robert 
R. Merhige, Jr., Senior United States District Judge for the 
Eastern District of Virginia, in this case. 

22 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 96-30333 

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE 

v. 

DANNY LEE KYLLO, DEFENDANT-APPELLANT 

Argued and Submitted Nov. 5, 1997 
Decided Apr. 7, 1998 

Before: NOONAN and HAWKINS, Circuit Judges, and 

MERHIGE,9 District Judge. 

Opinion by Judge MERHIGE; Dissent by Judge 
HAWKINS. 

MERHIGE, District Judge: 

Based on the readings from a thermal imager, the ob- 
servation of unusually high power usage at Defendant- 
Appellant Danny Lee Kyllo’s home, information pro- 
vided by an informant, and other circumstantial 
evidence, federal law enforcement officers obtained a 
warrant to search the premises of Danny Lee Kyllo 
(“Kyllo”). The officers executed the warrant and 

9 Honorable Robert R. Merhige, Jr., Senior United States 
District Judge for the Eastern District of Virginia, sitting by 
designation. 

23 

discovered an indoor marijuana growing operation, 
weapons, and drug paraphernalia. After being indicted, 
Kyllo moved to suppress all the evidence obtained in 
the search of his residence. The district court denied 
his motion. We vacated that conviction and remanded 
for further proceedings. On remand, the district court 
again denied Kyllo’s motion to suppress. This appeal 
presents an issue of first impression in this circuit, 
namely whether thermal imaging scanning is a search 
within the meaning of the Fourth Amendment. We 
hold that thermal imaging scanning is a search within 
the meaning of the Fourth Amendment. 

I. Factual Background 

While investigating a suspected marijuana growing 
and distribution operation, United States Bureau of 
Land Management Agent William Elliott (“Elliott”) 
discovered information suggesting Kyllo’s involvement. 
Elliott contacted Oregon state law enforcement officers 
who provided him with additional information, includ- 
ing the following: that Kyllo lived with his wife, Luanne 
Kyllo (“Luanne”), in one unit of a triplex in Florence, 
Oregon; that the triplex was occupied by other persons 
who were suspects in the investigation; that a car 
registered to Kyllo and Luanne at the triplex address 
was parked outside the triplex; that Kyllo had allegedly 
told a police informant that Luanne and he could supply 
the informant with marijuana; and that the previous 
month, Luanne had been arrested for delivery and 
possession of a controlled substance. 

Elliott subpoenaed Kyllo’s utility records. Using a 
chart for estimating average electricity use, Elliott 
concluded that Kyllo’s electricity use was abnormally 
high. At Elliott’s request, Staff Sergeant Daniel Haas 

24 

(“Haas”) of the Oregon National Guard examined 
Kyllo’s home using an Agema Thermovision 210 
thermal imaging device (the “Agema”). A thermal 
imager operates by observing and recording the dif- 
ferential heat patterns emanating from various objects 
within its view. The results of the measure of these 
differential heat patterns are then displayed on a 
viewfinder on top of the instrument which indicates the 
amount of heat emitted by objects by shading the area 
around the object a lighter or darker color. As the 
Tenth Circuit explained, 

[a]ctivities that generate a significant amount of 
heat . . . produce a heat “signature” that the 
imager can detect. Under optimal conditions— 
viewing through an open window into a darkened 
room, for example—the imager (or one much like it) 
might well be able to resolve these heat signatures 
into somewhat indistinct images. The utility of the 
machine depends therefore not on the inevitable and 
ubiquitous phenomenon of heat loss but on the 
presence of distinguishable heat signatures inside 
the structure. 

United States v. Cusumano, 67 F.3d 1497, 1501 (10th 
Cir. 1995), vacated on other grounds, 83 F.3d 1247 (10th 
Cir. 1996). 

Haas’ search revealed what he considered abnor- 
mally high levels of heat emanating from Kyllo’s home. 
Elliott concluded that this heat signature indicated the 
presence of high intensity lights used to grow mari- 
juana indoors. Elliott presented the information he had 
gathered about Kyllo in an affidavit (the “Affidavit”) to 
a federal magistrate judge for the United States Dis- 
trict Court for the District of Oregon and requested a 

25 

search warrant for Kyllo’s home. The magistrate 
issued the warrant. Elliott searched Kyllo’s home. He 
discovered an indoor marijuana growing operation and 
seized a number of items, including marijuana, wea- 
pons, and drug paraphernalia. 

Kyllo was indicted on one count of the manufacture of 
marijuana in violation of 21 U.S.C. § 841(a)(1). After 
holding a suppression hearing, the district court denied 
Kyllo’s motion. Kyllo pled guilty and was sentenced to 
63 months in custody. Kyllo appealed the district 
court’s denial of his motion to suppress the evidence to 
this Court. In a memorandum disposition, this Court 
found that, while the portion of the Affidavit relating to 
Kyllo’s electricity use was false and misleading, the 
district court was not clearly erroneous in concluding 
that the false statements were not knowingly or 
recklessly made. See United States v. Kyllo, 37 F.3d 
526 (9th Cir. 1994). Thus, the portion of Elliott’s 
affidavit relating to Kyllo’s electricity use was properly 
considered by the magistrate judge in determining 
whether there was probable cause to issue a warrant. 

This Court then remanded the case to the district 
court to hold an evidentiary hearing on the capabilities 
of the Agema and on whether Elliott knowingly or 
recklessly omitted from the Affidavit the fact that Kyllo 
and Luanne were divorced. “A district court must 
suppress evidence seized under a warrant when an 
affiant has knowingly or recklessly included false 
information in the affidavit.” United States v. Dozier, 
844 F.2d 701, 705 (9th Cir.), cert. denied, 488 U.S. 927, 
109 S. Ct. 312, 102 L.Ed.2d 331 (1988). The district 
court found that, while Elliott’s omission from the Affi- 
davit of the fact that Kyllo and Luanne were divorced 

26 

was misleading, it was not knowingly false or made in 
reckless disregard for the truth. See United States v. 
Kyllo, No. Cr. 92-51-FR, 1996 WL 125594 (D. Or. Mar. 
15, 1996). We review the district court’s finding that 
these statements were not made with reckless regard 
for the truth under the clearly erroneous standard. See 
Dozier, 844 F.2d at 705. 

In light of the evidence presented at the suppression 
hearing, it was not clearly erroneous for the district 
court to find that Elliott’s omission from the Affidavit 
of the fact that Kyllo and Luanne were divorced was 
not knowingly false or made in reckless disregard for 
the truth. No evidence was presented at the hearing 
that either Elliott or the Oregon State law enforcement 
officers who supplied him information knew that Kyllo 
and Luanne were divorced. Furthermore, there was no 
evidence presented showing that their failure to dis- 
cover and report the fact of Kyllo’s divorce was 
reckless. Thus, the portion of Elliott’s affidavit relating 
to Kyllo’s relationship to Luanne was properly con- 
sidered by the magistrate judge in determining 
whether there was probable cause to issue a warrant. 

After holding the evidentiary hearing, the district 
court found that Elliott did not knowingly or recklessly 
omit information about Kyllo’s divorce from the Affida- 
vit. Regarding the Agema, the district court found that 
(1) it revealed no intimate details of Kyllo’s home, (2) it 
did not intrude on the privacy of persons inside Kyllo’s 
home, (3) it could not penetrate walls or windows or 
reveal human activities or conversations, and (4) it 
“recorded only the heat being emitted from the home.” 
United States v. Kyllo, No. CR 92- 51-FR (D. Or. Mar. 
15, 1996). Based on its factual findings, the district court 

27 

concluded that the warrantless search of Kyllo’s home 
with the Agema was permissible and that there was 
probable cause to issue the warrant to search Kyllo’s 
home. 

On appeal, Kyllo argues that the use of the thermal 
imaging scanner to measure the heat emanating from 
his house was a search within the meaning of the 
Fourth Amendment and, therefore, required a warrant 
to be valid. As a result, Kyllo argues that the search 
was unconstitutional, rendering the search warrant 
based on the results of Agema’s measurements invalid. 
Kyllo further argues that the district court erred in 
finding that Elliott’s omission from the Affidavit of the 
fact that Kyllo and Luanne were divorced was not 
knowingly false or made in reckless disregard for the 
truth. Kyllo contends that neither the findings from the 
warrantless search with the Agema nor Elliott’s omis- 
sions from the Affidavit should have been considered by 
the magistrate in determining whether there was 
probable cause to issue the search warrant. Thus, Kyllo 
argues, the evidence obtained during the search should 
be suppressed. 

II. Warrantless Search with Thermal Imaging 
Device 

Kyllo first argues that the warrantless use of a 
thermal imaging device to scan his home constituted a 
“search” within the meaning of the Fourth Amendment, 
and that the fruits of this warrantless search must 
therefore be suppressed. The validity of a warrantless 
search is reviewed de novo. See United States v. Van 
Poyck, 77 F.3d 285, 290 (9th Cir.), cert. denied, 519 U.S. 
912, 117 S. Ct. 276, 136 L.Ed.2d 199 (1996). The district 
court’s findings of fact on the capabilities of the Agema 

28 

are reviewed for clear error. See Ornelas v. United 
States, 517 U.S. 690, 698-700, 116 S. Ct. 1657, 1663, 134 
L.Ed.2d 911 (1996); United States v. Hernandez, 27 
F.3d 1403, 1406 (9th Cir. 1994). 

The Fourth Amendment provides that “[t]he right of 
the people to be secure in their persons, houses, papers, 
and other effects, against unreasonable searches and 
seizures, shall not be violated.” U.S. Const. amend. IV. 
We must apply the two-prong test enunciated by the 
Supreme Court in Katz to determine whether a warran- 
tless search violated a defendant’s legitimate expecta- 
tion of privacy: the defendant must have a subjective 
expectation of privacy, and that expectation must be 
one that society is prepared to acknowledge as rea- 
sonable. See Katz v. United States, 389 U.S. 347, 361, 88 
S. Ct. 507, 516-17, 19 L.Ed.2d 576 (Harlan, J., con- 
curring); see also California v. Ciraolo, 476 U.S. 207, 
211, 106 S. Ct. 1809, 1811-12, 90 L.Ed.2d 210 (1986). We 
conclude that Kyllo had a subjective expectation of 
privacy that activities conducted within his home would 
be private. Although the Supreme Court ultimately 
held that the search conducted in Ciraolo was constitu- 
tional, it first concluded that the defendant, who en- 
closed his backyard marijuana crop with a double fence, 
“ha[d] met the test of manifesting his own subjective 
intent and desire to maintain privacy as to his unlawful 
agricultural pursuits.” Cite as: 140 F.3d 1249, *1253) 
Ciraolo, 476 U.S. at 211, 106 S. Ct. at 1811-12. Surely a 
defendant, such as Kyllo, who moves his agricultural 
pursuits inside his house has similarly manifested a 
subjective expectation of privacy in those activities. 
See United States v. Ishmael, 48 F.3d 850, 854 (5th Cir. 
1995). 

29 

In cases involving the use of thermal imagers, other 
circuits have framed the inquiry in the first prong of 
Katz differently. Those circuits have analogized the 
excess heat measured by a thermal imager to the 
excess trash left on the curb, and have asked whether 
the defendant has manifested a subjective expectation 
of privacy in the “waste heat” emanating from their 
homes. Those courts have held, citing California v. 
Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L.Ed.2d 30 
(1988), that such defendants have failed to manifest a 
subjective expectation of privacy in the excess heat. See 
United States v. Robinson, 62 F.3d 1325, 1328-29 (11th 
Cir. 1995); United States v. Myers, 46 F.3d 668, 669-70 
(7th Cir. 1995); United States v. Pinson, 24 F.3d 1056, 
1058 (8th Cir. 1994). We respectfully reject the “heat 
waste” analogy. The purpose and utility of the thermal 
imager is to reveal the heat signatures of various 
objects and activities occurring inside a structure. “The 
pertinent inquiry is not, therefore, whether the Defen- 
dants retain an expectation of privacy in the ‘waste 
heat’ radiated from their home but, rather, whether 
they possess an expectation of privacy in the heat 
signatures of the activities, intimate or otherwise, that 
they pursue within their home.” United States v. 
Cusumano, 67 F.3d 1497, 1502 (10th Cir. 1995), vacated 
on other grounds, 83 F.3d 1247 (10th Cir. 1996); see also 
Katz, 389 U.S. at 353, 88 S. Ct. at 512 (holding the de- 
fendant had exhibited a subjective expectation of pri- 
vacy although he had not taken every precaution 
against electronic eavesdropping); Ishmael, 48 F.3d at 
854-55 (holding warrantless search with thermal imager 
constitutional but rejecting the “waste heat” analogy). 

30 

We now must address whether Kyllo’s subjective 
expectation of privacy regarding the heat signatures of 
the activities within his home is one that society is 
prepared to acknowledge as reasonable. As the Su- 
preme Court has stated, “[a]t the risk of belaboring the 
obvious, . . . [the individual’s expectation in the 
privacy of a residence] is plainly one that society is 
prepared to recognize as reasonable.” United States v. 
Karo, 468 U.S. 705, 714, 104 S. Ct. 3296, 3303, 82 
L.Ed.2d 530 (1984). The Supreme Court has repeatedly 
emphasized that “[a]t the very core [of the Fourth 
Amendment] stands the right of a man to retreat into 
his own home and there be free from unreasonable 
governmental intrusion.” Silverman v. United States, 
365 U.S. 505, 511, 81 S. Ct. 679, 683, 5 L.Ed.2d 734 
(1961). Because of the respect for the sanctity of the 
home, “the Fourth Amendment has drawn a firm line at 
the entrance to the house. Absent exigent circum- 
stances, that threshold may not reasonably be crossed 
without a warrant.” Payton v. New York, 445 U.S. 573, 
590, 100 S. Ct. 1371, 1382, 63 L.Ed.2d 639 (1980). There- 
fore, warrantless searches and seizures in the home are 
“presumptively unreasonable.” Id. 

Other circuits that have considered the warrantless 
use of thermal imagers have held that because of the 
technical inadequacies of the thermal imager used in 
their respective cases, the scan of defendants’ homes 
did not reveal enough intimate details to raise con- 
stitutional concerns, all citing Dow Chemical v. United 
States, 476 U.S. 227, 106 S. Ct. 1819, 90 L.Ed.2d 226 
(1986). See Robinson, 62 F.3d at 1328 (11th Cir. 1995); 
Ishmael, 48 F.3d at 854 (5th Cir. 1995); Myers, 46 F.3d 
at 669-70 (7th Cir. 1995); Pinson, 24 F.3d at 1059 (8th 
Cir. 1994); contra Cusumano, 67 F.3d at 1504 (10th Cir. 

31 

1995). We too are concerned about the nature of the 
information that the thermal imager used to scan 
Kyllo’s home is able to reveal. As we stated on remand, 

[the Katz ] inquiry cannot be conducted in the 
abstract. We must have some gauge of the 
intrusiveness of the thermal imaging device, which 
depends on the quality and the degree of detail of 
information that it can glean. For example, our 
analysis will be affected by whether, on the one 
extreme, this device can detect sexual activity in the 
bedroom, as Kyllo’s expert suggests, or, at the other 
extreme, whether it can only detect hot spots where 
heat is escaping from a structure. 

United States v. Kyllo, 37 F.3d 526, 530-31 (9th Cir. 
1994). 

In the evidentiary hearing conducted on remand, 
Kyllo presented considerable evidence to the district 
court about the capabilities of near-end thermal im- 
agers such as the Agema Thermovision 210. Carlos 
Ghigliotty presented a videotape he had created for the 
district court which clearly demonstrated the ability of 
the Agema and other near short wave infrared cameras 
to see through glass. Mr. Ghigliotty is president of 
Infrared Technologies, a company that does testing of 
the limitations and capabilities of infrared cameras and 
tests ways infrared cameras can be applied in the field, 
and has been involved in thermal imaging and infrared 
technology for fourteen years. The videotape demon- 
strated that an Agema camera used in the dark to scan 
a car with tinted, closed windows clearly showed a 
person waving inside the car. The videotape also 
depicted the image displayed on the Agema which 
revealed a man standing inside a glass door of a house, 

32 

and showed details such as his movements to open the 
door, and his hand waving. Mr. Ghigliotty testified that 
this was a common capability among near-end thermal 
imagers such as the Agema. 

Bill Martin, the director of sales for Flir Systems 
Incorporated which manufactures infrared imaging 
equipment, testified for the government. Mr. Martin 
had previously worked for the Agema company, and the 
company had provided Mr. Martin extensive training in 
infrared technology, including specific training on the 
Agema Thermovision 210. (T-2, 24). Mr. Martin 
admitted that if a window was open and it was dark in 
the room, any thermal imager could detect activity 
through the opening. (T-2, 100). He furthermore stated 
that the imager could “see” people behind curtains if 
they were very close to the window, and could reveal 
people embracing if the window was open and it was 
dark out. Mr. Martin also testified that thermal im- 
agers have physiology applications, as they can detect 
subsurface problems in the human body. 

The record also contains a brochure published by the 
Agema company describing the capabilities of an 
Agema Thermovision 210: “Sensitive to temperature 
differences as small as 0.9 F, the Thermovision 210 can 
detect and delineate objects or persons in complete 
darkness, or under natural cover, as far away as 1500 
feet. Operations can be conducted in any level of 
ambient light and at air temperatures from 14 to 131 F. 
Even at that distance . . . the rugged 210 can easily 
distinguish between a domestic animal and a human 
being.” 

We conclude that the details unveiled by a thermal 
imager are sufficiently “intimate” to give rise to a 

33 

Fourth Amendment violation. Although the Tenth Cir- 
cuit’s opinion in Cusumano was later vacated on 
rehearing en banc on other grounds, we agree with its 
initial conclusion that 

[o]ur fellow circuits have, we think, misapprehended 
the most pernicious of the device’s capabilities. The 
machine intrudes upon the privacy of the home not 
because it records white spots on a dark background 
but rather because the interpretation of that data 
allows the government to monitor those domestic 
activities that generate a significant amount of heat. 
Thus, while the imager cannot reproduce images or 
sounds, it nonetheless strips the sanctuary of the 
home of one vital dimension of its security: ‘the 
right to be let alone’ from the arbitrary and discre- 
tionary monitoring of our actions by government 
officials. 

United States v. Cusumano, 67 F.3d 1497, 1504 (10th 
Cir. 1995), vacated on other grounds, 83 F.3d 1247 (10th 
Cir. 1996). It is not disputed whether the Agema 210 
could reveal details such as intimate activities in a 
bedroom. According to the manufacturer, the imager 
used in this case is sensitive to temperature differences 
as small as 0.9 F. As the court noted in Cusumano, it 
would not be difficult to determine the origin of two 
commingled objects emitting heat in a bedroom at 
night. Id. at 1504. Even assuming that the Agema, 
apparently a relatively unsophisticated thermal imager, 
is unable to reveal such intimate details, technology 
improves at a rapid pace, and much more powerful and 
sophisticated thermal imagers are being developed 
which are increasingly able to reveal the intimacies that 

34 

we have heretofore trusted take place in private absent 
a valid search warrant legitimizing their observation. 

Furthermore, even if a thermal imager does not 
reveal details such as sexual activity in a bedroom, with 
a basic understanding of the layout of a home, a thermal 
imager could identify a variety of daily activities 
conducted in homes across America: use of showers and 
bathtubs, ovens, washers and dryers, and any other 
household appliance that emits heat. See United States 

v. Field, 855 F. Supp. 1518, 1519 (W.D. Wis. 1994) 
(stating that a thermal imager had detected the pre- 
sence of a dehumidifier in use in a closet). Even the 
routine and trivial activities conducted in our homes are 
sufficiently “intimate” as to give rise to Fourth Amend- 
ment violation if observed by law enforcement without 
a warrant. Compare Arizona v. Hicks, 480 U.S. 321, 
325, 107 S. Ct. 1149, 1152-53, 94 L.Ed.2d 347 (1987) (“It 
matters not that the search uncovered nothing of any 
great personal value to respondent. . . . A search is a 

search, even if it happens to disclose nothing but the 
bottom of a turntable.”) and United States v. Karo, 468 
U.S. 705, 104 S. Ct. 3296, 82 L.Ed.2d 530 (1984) (holding 
that revelation of a single detail about the interior of 
the home, whether or not the beeper placed in can of 
ether was still inside the home, was sufficient to violate 
the Fourth Amendment) with Florida v. Riley, 488 U.S. 
445, 452, 109 S. Ct. 693, 697, 102 L.Ed.2d 835 (1989) 
(plurality decision) (visual surveillance of interior of 
greenhouse revealed “no intimate details connected 
with the use of the home”) (dicta) and Dow Chemical, 
476 U.S. at 237-39, 106 S. Ct. at 1826-27 (surveillance by 
camera revealing outlines of commercial buildings did 
not disclose intimate details of the home). We therefore 
conclude that the use of a thermal imager to observe 

35 

heat emitted from various objects within the home 
infringes upon an expectation of privacy that society 
clearly deems reasonable. 

Because scanning with a thermal imager without a 
warrant violates the Fourth Amendment, the Agema 
readings should not have been considered by the 
magistrate judge. However, the district court did not 
consider whether the information provided to the 
magistrate was sufficient to sustain a search warrant 
without the addition of the readings from the thermal 
imager. Therefore, we remand for the district court to 
make that determination. On remand, the district court 
should be cognizant of the Court’s holdings that the 
portions of Elliott’s affidavit relating to Kyllo’s electric- 
ity use and his relationship to Luanne were properly 
considered by the magistrate judge in determining 
whether there was probable cause to issue a warrant. 

REVERSED and REMANDED. 

HAWKINS, Circuit Judge, dissenting: 

My colleagues have made the best case imaginable 
for the proposition that the use of a thermal imaging 
device constitutes a search within the meaning of the 
Fourth Amendment. I am not persuaded. 

A search, whether of a home, a car, or a body, is, at 
bottom, an intrusion; a non-consensual invasion of 
protected space. Whatever its Star Wars capabilities, 
the thermal imaging device employed here intruded 
into nothing. Rather, it measured the heat emanating 
from and on the outside of a house. Nor did law 
enforcement randomly choose its choice of targets: the 
agents employing the device were alerted to Kyllo’s 

36 

house because of its extraordinary use of electricity, a 
use consistent with indoor marijuana cultivation. 

I would follow the lead of our sister circuits and hold 
that the use of thermal imaging technology does 
not constitute a search under contemporary Fourth 
Amendment standards. 

37 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF OREGON 

CR NO. 92-51-FR 

UNITED STATES OF AMERICA, PLAINTIFF 

v. 

DANNY KYLLO, DEFENDANT 

[Filed: Mar. 15, 1996] 

OPINION 

FRYE, Judge: 

The matter before the court is the motion of the 
defendant, Danny Kyllo, to suppress evidence upon 
remand of this case from the United States Court of 
Appeals for the Ninth Circuit. 

On December 2, 1994, this court denied Kyllo’s 
motion to suppress evidence. Kyllo argued, among 
other grounds, that: 

1) the law enforcement officers had misled the 
magistrate judge who issued the search warrant with 
deliberate omissions of fact in order to obtain the 
search warrant; and 

38 

2) the use of a thermal imaging device constituted an 
impermissible search. 

On October 4, 1994, the United States Court of 
Appeals for the Ninth Circuit remanded the case for a 
further hearing regarding 1) the technological 
capacities of the thermal imaging device used in this 
case; 2) whether omissions of material facts regarding 
Kyllo’s marital status resulted from a deliberate or 
reckless disregard of the truth. United States v. Kyllo, 
37 F.3d 526 (9th Cir. 1994 ). 

The court has conducted a full evidentiary hearing 
allowing the parties an opportunity to present evidence 
as to the issues on remand. 

1. Warrantless Use of a Thermal Imaging Device 

The United States Court of Appeals for the Ninth 
Circuit wrote: 

Without a warrant, law enforcement officers 
used a thermal imaging device to scan Kyllo’s 
residence. Kyllo claims that the use of a thermal 
imaging device constitutes a “search” within the 
meaning of the Fourth Amendment, and that the 
fruits of this warrantless search must be 
suppressed. 

In order to determine whether the scan 
constituted a “search” for purposes of the Fourth 
Amendment, we must decide whether Kyllo exhib- 
ited an actual expectation of privacy and whether 
that expectation is one that society is prepared to 
acknowledge as reasonable. See California v. 
Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 1811-12, 

39 

90 L.Ed.2d 210 (1986). But this inquiry cannot be 
conducted in the abstract. We must have some 
factual basis for gauging the intrusiveness of the 
thermal imaging device, which depends on the 
quality and the degree of detail of information that 
it can glean. For example, our analysis will be 
affected by whether, on the one extreme, this device 
can detect sexual activity in the bedroom, as Kyllo’s 
expert suggests, or, at the other extreme, whether 
it can only detect hot spots where heat is escaping 
from a structure. 

The district court, however, held no evidentiary 
hearing and made no findings regarding the 
technological capabilities of the thermal imaging 
device used in this case. In particular, the court 
made no findings on the device’s ability to detect the 
shapes of heat-emitting objects inside a home. 

Without explicit findings, we are ill-equipped to 
determine whether the use of the thermal imaging 
device constituted a search within the meaning of 
the Fourth Amendment. Accordingly, we remand 
to the district court for findings on the technological 
capacities of the thermal imaging device used in this 
case. 

37 F.3d at 550-31 (footnote omitted). 

The AGEMA Thermovision 210 imaging device used 
by Staff Sergeant Daniel Haas of the Oregon National 
Guard in the investigation of this case is a non-intrusive 
device which emits no rays or beams and shows a crude 
visual image of the heat being radiated from the outside 
of the house. The device was operated from the passen- 
ger seat of a vehicle parked on the street. The device 

40 

cannot and did not show any people or activity within 
the walls of the structure. 

In his report, Sergeant Haas states, in part: “On the 
16th of Jan. the thermal scan showed high heat loss 
from the roof of 878 Rhododendron above the garage 
and from the wall facing 890 Rhododendon [sic] as 
shown in the two (2) diagrams below. . . . The center 

bldg. showed much warmer than the blds [sic] on either 
side.” Sergeant Haas testified at the hearing that 
“[t]he main conclusion that I reached was that there 
was definitely something unusual within the structure 
that was generating that excess heat.” Transcript, p. 
1139. 

Under Katz v. United States, 389 U.S. 347, 361 
(1967), an expectation of privacy is only reasonable 
where 1) the individual manifests a subjective ex- 
pectation of privacy in the object of the challenged 
search; and 2) society is willing to recognize that 
subjective expectation as reasonable. The second 
element turns on “whether the government’s intrusion 
infringes upon the personal and societal values 
protected by the Fourth Amendment.” Oliver v. 
United States, 466 U.S. 170, 182-83 (1984). 

The court finds that the use of the thermal imaging 
device here was not an intrusion into Kyllo’s home. No 
intimate details of the home were observed, and there 
was no intrusion upon the privacy of the individuals 
within the home. The device used cannot penetrate 
walls or windows to reveal conversations or human 
activities. The device recorded only the heat being 
emitted from the home. 

41 

The use of a device to detect surface waste heat 
from a home does not amount to a “search” of the home 
within the meaning of the Fourth Amendment. Kyllo 
did not have a reasonable expectation of privacy in the 
heat emanating from his home, and the device used did 
no more than detect the heat emanating from his home. 
See United States v. Myers, 46 F.3d 668, 669-70 (7th Cir. 
1995); United States v. Ford, 34 F.3d 992, 995-97 (11th 
Cir. 1994); and United States v. Pinson, 24 F.3d 1056, 
1058-59 (8th Cir. 1994). 

2. Omissions Regarding Kyllo’s Marital Status 

In his affidavit in support of the search warrant, the 
law enforcement officer, Special Agent William V. 
Elliott, stated that “Det. Dorman told me that he was 
aware that on 12-06-90, Danny Kyllo’s wife, Luanne 
Kyllo, was arrested for delivery and possession of a 
controlled substance. A check with DMV revealed that 
Danny Kyllo and Luanne Kyllo had a 1972 Datsun . . . 
which was registered at [Danny Kyllos’ address].” 
Search Warrant Affidavit, p. 3. 

The United States Court of Appeals for the Ninth 
Circuit stated, in part: 

While no statement in this paragraph is false, Elliott 
omitted the following uncontested facts: at the time 
of Luanne Kyllo’s arrest, Luanne was separated 
from Danny Kyllo; she was living in a different 
state, California; and, she was using her maiden 
name. . . . 

. . . . 

42 

. . . . These omissions were material since these 

facts would have substantially undermined any 
inference that Danny Kyllo was involved with drugs 
because his wife was. . . . 

. . . . 

Second, Kyllo has shown that he was prejudiced 
by this omission. If material facts about Kyllo’s 
marital status had not been omitted, the information 
about the wife’s arrest would have been neutralized. 
That would have left in the affidavit three principal 
factual allegations: 1) Kyllo’s electric power 
consumption was abnormally high; 2) Kyllo’s 
residence emitted heat patterns indicative of a 
marijuana grow operation; 3) Kyllo once sold 
marijuana. 

As discussed above, the first allegation was false; 
therefore, we will disregard it in our prejudice 
inquiry. As we discuss below, the record does not 
contain sufficient facts for us to determine whether 
the use of a thermal imaging device constitutes a 
search under the Fourth Amendment. For that 
reason, in determining the prejudicial effect of the 
omission in the search warrant of relevant facts 
concerning Luanne Kyllo, we will disregard the 
allegation in the affidavit concerning the heat 
emitted from Kyllo’s residence. What is left in the 
affidavit, then, is the third allegation, which is 
hearsay many times over: Elliott heard it from a 
detective who heard it from another detective who 
heard it from an informant who overheard Kyllo’s 
offer to sell drugs. Moreover, the information was 
stale. This third factual allegation, the only one left 
in the affidavit to consider, would fail to establish 

43 

probable cause by itself. Accordingly, Kyllo has 
demonstrated prejudice. 

37 F.3d at 529-30 (footnote omitted). 

This court heard testimony as to whether the affiant 
deliberately or recklessly omitted material facts and, if 
so, whether the omitted material facts resulted from a 
deliberate or reckless disregard for the truth. The 
affiant, Special Agent Elliott, testified that he believed 
Luanne Kyllo was living with Danny Kyllo at 878 
Rhododendron Drive based upon: 

the fact that the vehicle that Detective Dorman 
spotted out in front of 878 Rhododendron Drive was 
currently registered to Danny and Luanne Kyllo. 
And then the second piece of information was 
information provided to me by Detective Nafziger 
who had contact with Brookings Police Department 
in which they had an informant who related to him 
that during a conversation Danny Kyllo 
regarding—talking about a marijuana transaction 
stated that if he wasn’t at the residence then 
Luanne would be there in order to get him the 
marijuana. 

Transcript, p. 263. 

Special Agent Elliott testified that he did not 
request that Detective Dorman obtain the police report 
regarding the arrest of Luanne Kyllo in November of 
1990, which indicated that Luanne Kyllo used to be 
married to Danny Kyllo and was living in California at 
the time of Danny Kyllo’s arrest. Special Agent Elliott 
testified that “[w]e normally do not ask for police 

44 

reports when we get the basic information like that.” 
Transcript, p. 264. 

On cross-examination, Special Agent Elliott stated 
that Detective Dorman told him that he had contacted 
the landlord and the landlord had told Detective 
Dorman that “Danny Kyllo was living at 878 
Rhododendron Drive.” Transcript, p. 266. Special 
Agent Elliott testified that he did not put the 
information that Detective Dorman got from the 
landlord into his affidavit in support of the search 
warrant. 

Detective Dorman testified at the hearing that he 
was personally involved in the arrest of Luanne Kyllo 
in November of 1990. Detective Dorman testified that 
he had assisted another officer in securing and in 
searching the residence in the execution of the search 
warrant and the arrest of a Luanne Schirman, who was 
identified through the Department of Motor Vehicles 
records in the affidavit in support of the search warrant 
as Luanne Kyllo. Detective Dorman testified that he 
did not prepare the affidavit in support of the search 
warrant in November of 1990; that he did not write any 
reports in the case; and that he had not reviewed the 
affidavit in support of the search warrant prior to the 
execution of the search warrant in November 1990. 
Detective Dorman testified that he had no independent 
recollection from the 1990 arrest that Luanne Kyllo was 
living in California, and no independent recollection 
from the 1990 arrest so to Luanne Kyllo’s marital 
status. Detective Dorman testified that in January of 
1992, when he was assisting Special Agent Elliott in the 
investigation of Danny Kyllo, he did not connect the 
cases. 

45 

There is no evidence that the affiant, Special Agent 
Elliott, knew of and deliberately or recklessly omitted 
from the affidavit the facts that 1) at the time of 
Luanne Kyllo’s arrest, she was separated from Danny 
Kyllo; 2) that she was living in a different state, the 
State of California; and 3) that she was using her 
maiden name. The court finds Detective Dorman to be 
credible when he stated that in January of 1992, when 
he was assisting Special Agent Elliott in the 
investigation of Danny Kyllo, he did not connect that 
investigation with the arrest of Luanne Kyllo in 
November of 1990. There is evidence that Special 
Agent Elliott omitted from the affidavit the fact that 
only Danny Kyllo’s name was associated with the 
address by the landlord. However, the facts in the case 
do not warrant a finding that Special Agent Elliott 
deliberately or recklessly omitted this information from 
the affidavit in order to mislead the magistrate judge. 
The fact that only Danny Kyllo’s name was associated 
with the address by the landlord is not inconsistent 
with the statement that “[a] check with DMV revealed 
that Danny Kyllo and Luanne Kyllo had a 1972 Datsun 

. . . which was registered at [Danny Kyllo’s address].” 
Search Warrant Affidavit, p. 3. There was no 
testimony that Special Agent Elliott or Detective 
Dorman omitted any evidence known to them that 
would lead the agent or the magistrate judge to believe 
that Luanne Kyllo did not reside at 878 Rhododendron 
Drive. 

RULING OF THE COURT 

In Franks v. Delaware, 438 U.S. 154 (1978), the 
United States Court held that a defendant could 
challenge a facially valid affidavit by making a 

46 

substantial preliminary 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). In United States 

v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985), the court 
held that a defendant can challenge the affidavit in 
support of a search warrant which is valid on its face 
when it contains deliberate or reckless omissions of 
facts that tend to mislead. 

If, after the limited evidentiary hearing, the court 
concludes that the magistrate judge or judge was 
misled by information in the affidavit that the affiant 
knew was false, or would have known was false except 
for his reckless disregard of the truth, then suppression 
is an appropriate remedy. United States v. Leon, 468 
U.S. 897, 923 (1984). 

In United States v. Kyllo, 37 F.3d 526 (9th Cir. 
1994), the appeals court concluded that it was not 
clearly erroneous for the district court to find that the 
statements in the affidavit of Special Agent Elliott 
regarding the power usage at the Kyllo home did not 
rise to the level of reckless disregard for the truth. Id. 
at 529. Upon remand, the court conducted a further 
hearing to determine whether the affidavit contained 
intentionally or recklessly false statements or, put 
another way, whether the magistrate judge or judge 
was misled by information in the affidavit that the 
affiant knew was false or would have known was false 
except for his reckless disregard of the truth. After the 
evidentiary hearing, the court found that the false 
statements or omitted facts were not deliberate and 

47 

were not made in reckless disregard for the truth or for 
the purpose of misleading the magistrate judge. In 
light of these findings, suppression is not an appro- 
priate remedy in this case. 

To insure the magistrate judge’s function has been 
adequately performed, the court must “conscientiously 
review the sufficiency of affidavits on which warrants 
are issued. Illinois v. Gates, 462 U.S. 213, 239 (1983). 
The review must determine whether the magistrate 
judge in the case had “a ‘substantial basis for . . . 
conclud[ing]’ that a search would uncover evidence of 
wrongdoing.” Id. at 236 (quoting Jones v. United 
States, 362 U.S. 257, 271 (1960)). In the absence of any 
finding of a deliberate or reckless disregard of the 
truth, this court concludes that the magistrate judge 
had a substantial basis for finding probable cause to 
believe that a search warrant would uncover evidence 
of wrongdoing. 

CONCLUSION 

Kyllo’s motion to suppress is denied. An updated 
presentence report is ordered. Upon the completion of 
the updated presentence report, the court will schedule 
a sentencing hearing in order to consider the issue of an 
appropriate sentence at this stage in the proceedings. 

DATED this 15 day of March, 1996. 

/s/ HELEN J. FRYE 

HELEN J. FRYE 
United States District Judge 

48 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 93-30231 

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE 

v. 

DANNY LEE KYLLO, DEFENDANT-APPELLANT 

Argued and Submitted May 5, 1994 
Memorandum Filed June 14, 1994 
Memorandum Withdrawn Sept. 29, 1994 
Decided Oct. 4, 1994 

Before: ALARCON, NORRIS, and LEAVY, Circuit 

Judges. 

WILLIAM A. NORRIS, Circuit Judge: 

Defendant-Appellant Danny Lee Kyllo was convicted 
on one count of manufacturing marijuana in violation of 
21 U.S.C. § 841(a)(1) and sentenced to 63 months. 
Before trial, Kyllo filed a motion to suppress all the 
evidence obtained in a search of his residence. The 
district court denied his motion. We vacate this 
conviction and remand for further proceedings. 

I 

Factual Background 

In 1990, a law enforcement task force began inves- 
tigating Sam Shook for the crime of conspiring to grow 

49 

and distribute marijuana. In July 1991, four search 
warrants were issued and executed by the task force. 
As a result of evidence obtained from these searches, 
the task force began to focus on Sam Shook’s daughter, 
Tova. On January 16, 1992, Special Agent Elliott took 
Sergeant Daniel Haas of the Oregon National Guard to 
the respective homes of Danny Kyllo and Tova Shook, 
where Haas used a thermal imaging device to detect 
the level of heat within the homes. Special Agent 
Elliott submitted an affidavit stating that the level of 
power usage at Kyllo’s residence was indicative of drug 
manufacturing and that Kyllo’s wife had been recently 
arrested for possession and delivery of a controlled 
substance. Based on this affidavit, a magistrate issued 
a warrant to search Kyllo’s residence. 

Upon execution of the search warrant at Kyllo’s 
residence, law enforcement officers found an indoor 
marijuana grow involving more than one hundred 
marijuana plants. On February 20, 1992, a federal 
grand jury indicted Kyllo for the crime of manufactur- 
ing marijuana based on the evidence located in his 
residence. 

Kyllo filed a motion to suppress evidence on two 
theories. First, he claimed that the affidavit filed to 
secure the search warrant manifested a reckless 
disregard for the truth by including false information 
about the power usage levels at his home, and by 
omitting material information about his marital status. 
Second, he claimed that the use of a thermal imaging 
device to gather information from his home constituted 
a “search”, which was conducted without a warrant in 
violation of the Fourth Amendment. The district court 
granted Kyllo a hearing to determine the veracity of 

50 

the statements made before the magistrate, but limited 
its scope to the question of whether the statements 
about power usage at Kyllo’s residence that were used 
to obtain the search warrant were submitted with 
reckless disregard for the truth. After conducting this 
hearing, the district court rejected both of Kyllo’s 
theories of suppression and denied the motion. 

II 

The Search Warrant 

A. Power Usage 

Kyllo claims that Special Agent Elliott made 
statements in his affidavit before the magistrate about 
the power usage at Kyllo’s residence with reckless 
disregard for the truth. To establish probable cause, 
Special Agent Elliott stated in his affidavit that the 
electricity consumption at Kyllo’s residence was indi- 
cative of a marijuana grow operation. He based his 
claim of overconsumption on a spreadsheet that lists 
average monthly electricity bills for single family 
homes as a function of residence size. It is undisputed, 
however, that Elliott’s use of the spreadsheet was false 
and misleading. 

10 

“A district court must suppress evidence seized 
under a warrant when an affiant has knowingly or 

10 He erroneously claimed that the spreadsheet was an official 
Portland General Electric Company document when it was not. 
He erroneously claimed that the spreadsheet listed “appropriate” 
or “maximum” power usage when it listed only “average” usage. 
Finally, he erroneously claimed that Kyllo was using too much 
electricity on the incorrect assumption that power consumption 
would decrease linearly with the square footage of the residence. 

51 

recklessly included false information in the affidavit.” 
United States v. Dozier, 844 F.2d 701, 705 (9th Cir.), 
cert. denied, 488 U.S. 927, 109 S. Ct. 312, 102 L.Ed.2d 
331 (1988). In the absence of evidence that Elliott 
knowingly misused the spreadsheet, the issue is 
whether his mistakes constitute reckless or merely 
negligent disregard for the truth. See United States v. 
Davis, 714 F.2d 896 (9th Cir.1983). The district court 
found that Elliott did not act recklessly. We review the 
district court’s finding that these statements were not 
made with reckless disregard for the truth under the 
clearly erroneous standard. Dozier, 844 F.2d at 705. 

A comparison between the facts of this case and the 
facts of Dozier shows that the district court’s finding in 
this case is not clearly erroneous. In Dozier, the affiant 
stated that the suspect had been convicted of multiple 
drug violations, when in fact, the suspect had been 
convicted of only one violation fifteen years ago as a 
juvenile, and that conviction had been set aside under 
state law. The affiant’s explanation was that he did not 
know how to read the rap sheet correctly. The affiant 
also alleged that cars on the suspect’s property 
belonged to certain persons although the affiant had 
earlier performed a DMV search that showed that the 
cars did not belong to those persons. See Dozier, 844 
F.2d at 706. On these facts, we held that it was not 
clearly erroneous for the district court to find that the 
false statements arose from negligence rather than 
recklessness. 

If the district court’s finding based on the evidence in 
Dozier was not clearly erroneous, then neither was the 
court’s finding in this case. Here, Elliott relied on a 
spreadsheet he received from the head of the Regional 

52 

Crime Narcotics Enforcement Team, who in turn re- 
ceived it unofficially from a PGE employee. In addition, 
Elliott had used the spreadsheet “in a number of prior 
cases to successfully predict” marijuana grow opera- 
tions. See id. In light of these facts, it was not clearly 
erroneous for the district court to find that the 
mistakes Elliott made in characterizing and applying 
the chart did not rise to the level of reckless disregard 
for the truth. 

B. Marital Status 

Kyllo claims that the district court erred in refusing 
to hold a Franks hearing on the issue of whether 
Special Agent Elliott omitted statements about Kyllo’s 
marital status with reckless disregard for the truth. In 
his affidavit, Elliott stated: 

Det. Dorman told me that he was aware that on 12- 
06-90, Danny Kyllo’s wife, Luanne Kyllo, was 
arrested for delivery and possession of a controlled 
substance. A check with DMV revealed that Danny 
Kyllo and Luanne Kyllo had a 1972 Datsun ... which 
was registered at [Danny Kyllo’s address]. 

E.R. at 51. While no statement in this paragraph is 
false, Elliott omitted the following uncontested facts: at 
the time of Luanne Kyllo’s arrest, Luanne was sepa- 
rated from Danny Kyllo; she was living in a different 
state, California; and, she was using her maiden name. 
Although these facts appear in Detective Dorman’s 
police report, Elliott did not examine the report itself 
and simply relied on Dorman’s oral recounting of the 
facts. 

53 

Kyllo argued to the district court that Elliott’s failure 
to check Dorman’s report reveals a reckless disregard 
for the truth. Kyllo requested that this issue be 
considered in the district court’s Franks hearing, but 
the court refused. See Franks v. Delaware, 438 U.S. 
154, 98 S. Ct. 2674, 57 L.Ed.2d 667 (1978). We review 
de novo. See United States v. Homick, 964 F.2d 899, 904 
(9th Cir.1992). 

To be entitled to a Franks hearing on this issue, 
Kyllo must first make a substantial preliminary 
showing that the affidavit contained a misleading omis- 
sion and that the omission resulted from a deliberate or 
reckless disregard of the truth. Second, he must 
demonstrate that had there been no omission, the affi- 
davit would have been insufficient to establish probable 
cause. See United States v. Chesher, 678 F.2d 1353, 
1360 (9th Cir. 1982). 

First, Kyllo has made the required substantial pre- 
liminary showing. Three facts regarding Luanne and 
Danny Kyllo’s marital status were omitted from the 
affidavit. These omissions were material since these 
facts would have substantially undermined any infer- 
ence that Danny Kyllo was involved with drugs because 
his wife was. Furthermore, the fact that Elliott relied 
on information received from another law enforcement 
officer does not ipso facto mean that Elliott’s omissions 
were not reckless. See United States v. Roberts, 747 
F.2d 537, 546 n.10 (9th Cir. 1984). 

Our opinion in United States v. Chesher, 678 F.2d 
1353 (9th Cir. 1982), is instructive. In Chesher, the 
affiant spoke several times with another police officer 
who had prepared a report indicating that Chesher was 
no longer a member of the Hell’s Angels. Despite the 

54 

existence of this report and affiant’s conversations with 
the author of the report, the affiant informed a 
magistrate that Chesher was a member of the Hell’s 
Angels in order to secure a search warrant. We re- 
versed the district court’s decision not to hold a Franks 
hearing and stated that Chesher had satisfied the 
requirement of a substantial preliminary showing. See 
id. at 1362. We added: 

Clear proof is not required—for it is at the 
evidentiary hearing itself that the defendant, aided 
by live testimony and cross-examination, must 
prove actual recklessness or deliberate falsity. 

Id. As did Chesher, Kyllo has made a sufficient 
preliminary showing to warrant a Franks hearing on 
this issue. 

Second, Kyllo has shown that he was prejudiced by 
this omission. If material facts about Kyllo’s marital 
status had not been omitted, the information about the 
wife’s arrest would have been neutralized. That would 
have left in the affidavit three principal factual alle- 
gations: 1) Kyllo’s electric power consumption was 
abnormally high; 2) Kyllo’s residence emitted heat 
patterns indicative of a marijuana grow operation; 3) 
Kyllo once sold marijuana. 

As discussed above, the first allegation was false; 
therefore, we will disregard it in our prejudice inquiry. 
As we discuss below, the record does not contain 
sufficient facts for us to determine whether the use of a 
thermal imaging device constitutes a search under the 
Fourth Amendment. For that reason, in determining 
the prejudicial effect of the omission in the search 
warrant of relevant facts concerning Luanne Kyllo, we 

55 

will disregard the allegation in the affidavit concerning 
the heat emitted from Kyllo’s residence. What is left in 
the affidavit, then, is the third allegation, 

11 which is 
hearsay many times over: Elliott heard it from a 
detective who heard it from another detective who 
heard it from an informant who overheard Kyllo’s offer 
to sell drugs. Moreover, the information was stale. 
This third factual allegation, the only one left in the 
affidavit to consider, would fail to establish probable 
cause by itself. Accordingly, Kyllo has demonstrated 
prejudice. 

Because Kyllo satisfied the two prongs required to 
entitle him to a Franks hearing, the district court erred 
in refusing to consider his claim that the affiant reck- 
lessly omitted material information about his marital 
relationship. We therefore remand this issue for a 
Franks hearing. 

III 

Thermal Imaging Device 

Without a warrant, law enforcement officers used a 
thermal imaging device to scan Kyllo’s residence. Kyllo 
claims that the use of a thermal imaging device 
constitutes a “search” within the meaning of the Fourth 
Amendment, and that the fruits of this warrantless 
search must be suppressed. 

11 Det. Nafziger told me he contacted Detective Plaseter of the 
Brookings Police Department who told him that he had a CRI who 
told him that in late 1989, or early 1990 he was told by this CRI 
that the CRI overheard a conversation between Danny Kyllo and 
another unknown person indicating that Danny Kyllo had 
marijuana for sale. . . . E.R. at 52. 

56 

In order to determine whether the scan constituted a 
“search” for purposes of the Fourth Amendment, we 
must decide whether Kyllo exhibited an actual 
expectation of privacy and whether that expectation is 
one that society is prepared to acknowledge as 
reasonable. See California v. Ciraolo, 476 U.S. 207, 
211, 106 S. Ct. 1809, 1811-12, 90 L.Ed.2d 210 (1986). But 
this inquiry cannot be conducted in the abstract. We 
must have some factual basis for gauging the intrusive- 
ness of the thermal imaging device, which depends on 
the quality and the degree of detail of information that 
it can glean. For example, our analysis will be affected 
by whether, on the one extreme, this device can detect 
sexual activity in the bedroom, as Kyllo’s expert sug- 
gests, or, at the other extreme, whether it can only 
detect hot spots where heat is escaping from a 
structure. 

12 

The district court, however, held no evidentiary hear- 
ing and made no findings regarding the technological 
capabilities of the thermal imaging device used in this 
case. In particular, the court made no findings on the 
device’s ability to detect the shapes of heat-emitting 
objects inside a home. Without explicit findings, we are 
ill-equipped to determine whether the use of the 

12 Cf. Dow Chemical Co. v. United States, 476 U.S. 227, 238, 
106 S.Ct. 1819, 1826-27, 90 L.Ed.2d 226 (1986) (“It may well be . . . 
that surveillance of private property by using highly sophisticated 
surveillance equipment not generally available to the public, such 
as satellite technology, might be constitutionally prescribed absent 
a warrant. But the photographs here are not so revealing of 
intimate details as to raise constitutional concerns. 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.”) (emphasis added). 

57 

thermal imaging device constituted a search within the 
meaning of the Fourth Amendment. Accordingly, we 
remand to the district court for findings on the tech- 
nological capacities of the thermal imaging device used 
in this case. 

IV 

Sentence Enhancement 

Finally, Kyllo claims that the district erred in in- 
creasing his base offense level for possession of a 
firearm. “[I]n applying § 2D1.1(b)(1) the court need not 
find a connection between the firearm and the offense. 
If it finds that the defendant possessed the weapon 
during the commission of the offense, the enhancement 
is appropriate.” United States v. Restrepo, 884 F.2d 
1294, 1296 (9th Cir. 1989). In other words, an enhance- 
ment pursuant to U.S.S.G. § 2D1.1(b)(2) may be applied 
as long as the “weapon was present” unless it is “clearly 
improbable that the weapon was connected with the 
offense.” United States v. Willard, 919 F.2d 606, 609 
(9th Cir. 1990), cert. denied, 502 U.S. 872, 112 S. Ct. 208, 
116 L.Ed.2d 167 (1991). 

It is undisputed that two guns were present in the 
same residence as the grow operation. See United 
States v. Gillock, 886 F.2d 220, 223 (9th Cir. 1989) 
(possessing gun in close proximity to drugs is sufficient 
for firearm enhancement). Furthermore, weighing all 
the evidence, the district court determined that the 
enhancement was appropriate and impliedly found that 
it was not clearly improbable that the guns were 
connected with the marijuana grow operation. Because 
this finding is not clearly erroneous, see United States 

58 

v. Palmer, 946 F.2d 97 (9th Cir. 1991), the sentence 
enhancement was appropriate. 

The conviction is VACATED and the case is 

REMANDED for the purposes of a Franks hearing on 
the marital status issue and an evidentiary hearing on 
the intrusiveness of the thermal imaging device. The 
district court’s order denying the motion to suppress is 
otherwise AFFIRMED. 

59 

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF OREGON 

CR No. 92-51-FR 

UNITED STATES OF AMERICA, PLAINTIFF 

v. 

DANNY KYLLO, DEFENDANT 

[Filed: Dec. 4, 1992] 

OPINION 

Frye, Judge: 

The matter before the court is the motion of the 
defendant, Danny Kyllo, to suppress evidence (#30) on 
the following three grounds: (1) law enforcement 
officers lacked probable cause to search his home and 
misled the magistrate judge with deliberate false 
statements and omissions of fact in order to obtain a 
search warrant; (2) the use of a thermal imaging device 
constituted an impermissible search; and (3) the use of a 
National Guardsman to operate the thermal imaging 
device was unlawful. 

BACKGROUND 

In 1990, a task force of law enforcement officers 
began investigating Sam Shook for the crime of con- 
spiring to grow and to distribute marijuana. The 
investigation of Sam Shook was conducted jointly by 

60 

several agencies, including the United States Depart- 
ment of Interior, the Bureau of Land Management, the 
Tillamook County Sheriff ’s Department, and the 
Oregon State Police Bureau. In July, 1991, four search 
warrants supported by the sworn affidavit of Special 
Agent William Elliott of the Bureau of Land Manage- 
ment were issued by United States Magistrate Judge 
George E. Juba and subsequently executed by the task 
force. 

After these search warrants had been executed and 
the fruits of the executions of the search warrant had 
been analyzed, the investigation focused on Tova 
Shook, the daughter of Sam Shook. On January 16, 
1992, between 3:30 and 4:00 a.m., Special Agent Elliott 
took Sergeant Daniel Haas of the Oregon National 
Guard to the homes of Kyllo and Shook, where he used 
a thermal imaging device to detect the level of heat 
within the homes. Magistrate Judge Juba then issued 
two more warrants based on an affidavit prepared by 
Special Agent Elliott, to search the residence occupied 
by Tova Shook at 890 Rhododendron Drive, Florence, 
Oregon and the residence occupied by Kyllo at 878 
Rhododendron Drive, Florence, Oregon. The applica- 
tions for these two search warrants were patterned in a 
fashion similar to the affidavits for the four prior search 
warrants. 

When the search warrants were executed, law 
enforcement officers found an indoor marijuana “grow” 
involving more than one hundred marijuana plants 
located in the residence at 878 Rhododendron Drive, 
and dried marijuana and indications that marijuana was 
being distributed at the residence located at 890 
Rhododendron Drive. 

61 

On February 20, 1992, a federal grand jury indicted 
Kyllo for the crime of manufacturing marijuana based 
on the evidence located in his residence. On February 
24, 1992, Kyllo entered a plea of not guilty. The matter 
was set for trial. On May 18, 1992, Kyllo filed this 
motion to suppress evidence. 

On June 10, 1992, the court granted Kyllo’s request 
for a Franks hearing, limiting the evidence to be 
received and the issues to be addressed to the state- 
ments claimed by Kyllo to be false as to the power 
usage at the residence located at 878 Rhododendron 
Drive. The court found that Kyllo had made a sub- 
stantial showing that the part of the sworn statement of 
Special Agent Elliott which related to the power usage 
at the residence located at 878 Rhododendron Drive 
was made with reckless disregard for the truth, and 
that the part of the statement made with reckless 
disregard for the truth was essential to the determina- 
tion of the magistrate judge that there was probable 
cause to issue to issue the search warrant. 

CONTENTIONS OF THE PARTIES 

Kyllo first contends that Magistrate Judge Juba was 
misled by deliberate false statements and omissions 
into issuing the warrant to search Kyllo’s residence. 
Kyllo asserts that if the false statements were cor- 
rected or the false statements were excised from the 
affidavit in support of the search warrant, there would 
be no probable cause to issue the search warrant. Kyllo 
also contends that the warrantless use by law enforce- 
ment officers of a thermal imaging device constituted 
an unreasonable search and seizure, and that the use of 
the National Guard in civilian law enforcement is 
unlawful. 

62 

The government contends that none of the state- 
ments of Special Agent Elliott were false or misleading, 
and the information that Special Agent Elliott provided 
portrayed the facts as he believed them to be; that the 
use of a thermal imaging device does not constitute “a 
search;” and that the assistance of the National Guard 
was not a violation of the prohibition on military 
involvement in civilian law enforcement. 

APPLICABLE LAW 

1. Validity of the Search Warrant 

In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), 
the Supreme Court stated: 

[W]here the defendant makes a substantial pre- 
liminary showing that a false statement knowingly 
and intentionally, or with reckless disregard for the 
truth, was included by the affiant in the warrant 
affidavit, and if the allegedly false statement is 
necessary to the finding of probable cause, the 
Fourth Amendment requires that a hearing be held 
at the defendant’s request. 

If the court determines, as a result of a Franks 
hearing, that false statements were deliberately or 
recklessly included in the affidavit and that “the 
affidavit is insufficient to establish probable cause 
without the false material, the court must set aside the 
search warrant and suppress the fruits of the search.” 
United States v. Burnes, 816 F.2d 1354, 1357 (9th Cir. 
1987) 

This court granted to Kyllo a Franks hearing limited 
to the issue of whether the following statements of 

63 

Special Agent Elliott as to the power that was used at 
the residence located at 878 Rhododendron Drive were 
made with reckless disregard for the truth in the 
affidavit that he prepared in support of the search 
warrant: 

A subpoena for the power usage served on Central 
Lincoln PUD indicated the address of 878 
Rhododendron Dr, Florence was in the name of 
Danny Kyllo. These records show that the power 
usage for the residence at 878 Rhododendron Dr. 
during the months of May through December held a 
usage that ranged from 730 Kilowatt Hours in the 
summer months gradually building to a high of 2206 
Kilowatt Hours in winter. 

. . . . 

The Portland General Electric Company has 
developed a guide for estimating appropriate power 
usage relative to square footage, type of heating and 
accessories, and the number of people who occupy 
the residence. Using the Tax assessors report pre- 
viously mentioned herein, the reported square 
footage of 540 square feet per each residence would 
be calculated as follows; The guide indicates a 
maximum power usage of 1348 KWH for a structure 
consisting of 1000 square feet, thus a structure of 
approximately half that square footage should 
generate a maximum power output of 674 kwh. The 
difference in maximum KHW’s between the guide 
and the residences would indicate a[n] excessive 
power usage of 1532 kwh for 878 Rhododendron Dr., 
and a[n] excessive power usage of 1020 kwh for 890 
Rhododendron Dr. 

64 

. . . . In studying the power usage consumption for 

878 Rhododendron Drive it appears that the power 
is consistently high, which would indicate that this 
address is consistent with having a continues [sic] 
marijuana grow operation. 

Search Warrant Affidavit, pp. 4-5 (references to 
exhibits omitted). 

Kyllo contends that at the evidentiary hearing, 
Special Agent Elliott deliberately misrepresented the 
purpose and function of the PGE chart, as well as what 
the chart actually means. Kyllo argues that Special 
Agent Elliott persuaded the magistrate judge that his 
conclusions were objectively made based on scientific 
facts provided by PGE, even though, according to 
Kyllo, Special Agent Elliott did not discuss the facts of 
this case or the PGE chart with anyone at PGE. 

Kyllo contends that PGE has never held out its chart 
as establishing appropriate power usage, maximum 
power usage, or normal power usage, and that the 
magistrate judge was led to believe that PGE had done 
so by Special Agent Elliott in his affidavit. Kyllo 
contends that Special Agent Elliott took advantage of 
the magistrate judge’s familiarity with Special Agent 
Elliott’s prior applications for search warrants and did 
not fairly disclose to the magistrate judge the short- 
comings of this particular affidavit. 

Kyllo further submits that the affiant, Special Agent 
Elliott, distorted the conclusions that could be drawn 
from power records by taking one month’s power usage 
out of context and making conclusions about that usage 
without consultation with any expert or knowledgeable 
individual in the energy field. Kyllo contends that no 

65 

one can take an isolated month of power usage and 
fairly conclude that the usage was excessive because 
the usage that month was above the monthly average. 
Kyllo also contends that his monthly average usage of 
power was actually below the average shown on the 
PGE chart; that the statistics from which the chart is 
derived are not adaptable to homes located on the 
Oregon coast; that the statistics have a built-in bias; 
and that energy consumption is a function of many 
individual factors, only one of which is the square 
footage of the residence, despite the fact that Special 
Agent Elliott informed the magistrate judge that a 
smaller house would use proportionately less power. 

The government contends that Kyllo has not met his 
burden of showing that the statements made by Special 
Agent Elliott in the affidavit in support of the search 
warrant were deliberately false or made with reckless 
disregard for the truth. The government contends that 
the PGE chart used by Special Agent Elliott in his 
investigation has not been shown to be inaccurate, and 
that even assuming that the chart was inaccurate, 
Special Agent Elliott was not reckless in using the 
chart. 

The government contends that while the experts 
produced by Kyllo agreed that it was improper to cut in 
half the figures on the PGE chart as Special Agent 
Elliott did, these same experts also agreed that a 
smaller home would use less power. The government 
argues that Special Agent Elliott was, at most, 
negligent in cutting in half the figures on the PGE 
chart, and that his action does not amount to reckless- 
ness, a deliberate disregard for the truth, or an inten- 
tional falsehood. The government contends that Kyllo 

66 

has not shown that Special Agent Elliott acted with any 
intent to deliberately mislead the magistrate judge. 

ANALYSIS AND RULING 

The court has carefully considered all of the evidence 
presented as to whether or not certain statements 
made by Special Agent Elliott in his affidavit in support 
of the search warrant as to the power usage at the 
residence located at 878 Rhododendren Drive were 
made by him with a reckless disregard for the truth. 

Special Agent Elliott testified that he had used these 
same power charts in a number of prior cases to suc- 
cessfully predict whether or not there was marijuana 
growing at a particular location. Special Agent Elliott 
testified that he did not intend to mislead the magis- 
trate judge by dividing the power usage in half, and 
that he believed that this was the correct thing to do at 
the time. 

The court finds that Special Agent Elliott was 
credible when he testified that he believed PGE’s 
power chart was accurate and that it was reasonable for 
him to use it. Special Agent Elliott testified that he 
made no deliberately false statements in his affidavit in 
support of the search warrant. 

Special Agent E1liott investigated this case with 
Detective David Nafziger of the Oregon State Police 
Department. Detective Nafziger obtained PGE’s 
power chart in June, 1991 from Detective Bert Royster 
of the Oregon State Police Department assigned to the 
Regional Crime Narcotics Enforcement Team. Detec- 
tive Royster has a broad range of experience in drug 
investigations and provides training to other law 

67 

enforcement officers. Under the facts and circum- 
stances of this case, this court concludes that Special 
Agent Elliott did not act recklessly in using the 
information provided to him by Detective Nafziger and 
did not use this information in a reckless manner. 
Therefore, Kyllo’s motion to suppress evidence on the 
grounds that the magistrate judge was deliberately or 
recklessly misled by false statements and omissions 
into issuing the warrant for the search of his residence 
is denied. 

2. Warrantless Use of a Thermal Imaging Device 

Kyllo contends that the use by law enforcement 
officers of a thermal imaging device to detect the heat 
emanating from his home without first obtaining a 
warrant to do so constituted an unreasonable search 
and seizure in violation of the Fourth Amendment. 

“[T]he invasion of a constitutionally protected area 
by federal authorities is, as the Court has long held, 
presumptively unreasonable in the absence of a search 
warrant.” Katz v. United States, 389 U.S. 347, 361 
(1967). Technological progress since the Fourth 
Amendment was enacted has forced courts to expand 
this concept of a government “invasion” beyond purely 
physical intrusions to include nonphysical invasions 
under certain circumstances: “[T]he use of sophisti- 
cated modern mechanical or electronic devices and the 
frightening implications of their possible development 
have led to abandonment of the test of physical trespass 
within the protected area and a broadening of protec- 
tion to cover a ‘reasonable expectation of privacy.’ ” 
United States v. Solis, 536 F.2d 880, 886 (9th Cir. 1976). 

68 

Under Katz, an expectation of privacy is only rea- 
sonable where (1) the individual manifests a subjective 
expectation of privacy in the object of the challenged 
search; and (2) society is willing to recognize that 
subjective expectation as reasonable. Id. at 361. The 
second element turns on “whether the government’s 
intrusion infringes upon the personal and societal 
values protected by the Fourth Amendment.” Oliver v. 
United States, 466 U.S. 170, 182-83 (1984). 

Kyllo contends that he had a reasonable expectation 
of privacy in the heat generated within his home; that 
he did all he reasonably could do to contain the heat in 
his home; and that society “is well prepared to regard it 
reasonable that the citizenry not be surveilled by 
sophisticated electronic technology in order to detect 
personal lifestyles, including heat and cooling, within 
their homes.” Memorandum of Law in Support of 
Motion to Suppress Evidence, p. 28. 

The government contends that Kyllo did nothing to 
indicate his desire to protect his privacy in the heat 
generated within his home, and that even if the court 
found that Kyllo had a subjective expectation of privacy 
in the heat generated within his home, society would 
not consider that expectation reasonable. The gov- 
ernment argues that heat generation is fundamentally 
different from telephone conversations, which were the 
subject of dispute in Katz, that by their nature are 
made with the expectation of privacy. The government 
argues that Special Agent Elliott’s detection of the heat 
emanating from Kyllo’s home is similar to the observa- 
tion of smoke coming from the chimney of a house and 
inferring that the owner had a fire in the fireplace. The 
government contends that the detection of the heat 

69 

emanating from Kyllo’s home was not an intrusion into 
the home; that the detection of the heat lost to the 
outside of the home did not reveal intimate details as to 
the inside of the home; and that none of the interests 
which form the basis for the need for protection of the 
curtilage, namely the intimacy, the personal autonomy, 
and the privacy associated with a home, are threatened 
by thermal imagery. 

This court agrees with the court in United States v. 
Penny-Feeney, 773 F. Supp. 220 (D. Haw. 1991), which 
found that the use of a device to detect surface waste 
heat from a home does not amount to a “search” of the 
home within the meaning of the Fourth Amendment. 
Id. at 228. The court finds that the use of the thermal 
imaging device here was not an intrusion into Kyllo’s 
home. No intimate details of the home were observed, 
and there was no intrusion upon the privacy of the 
individuals within the home. 

Kyllo’s motion to suppress evidence on the grounds 
that Special Agent Elliott’s use of a thermal imaging 
device to detect the heat emanating from Kyllo’s home 
without first obtaining a warrant constituted an unrea- 
sonable search and seizure in violation of the Fourth 
Amendment is denied. 

3. Use of National Guardsman to Operate Thermal 
Imaging Device 

Kyllo moves to suppress evidence based on his 
contention that the use of a member of the Oregon 
National Guard to enforce federal law in the State of 
Oregon is unlawful under the Posse Comitatus Act. 
Kyllo argues that the Oregon National Guard is a 
component of the federal Army National Guard, which 

70 

cannot be used for domestic law enforcement without 
legislative approval. The government contends that 
National Guardsmen play a dual role as both federal 
and state employees but remain state employees, and 
thus are exempt from the restrictions of the federal 
Posse Comitatus Act unless they are called into federal 
service by the President of the United States. 

Staff Sergeant Haas, who operated the thermal 
imaging device, is a member of the Oregon National 
Guard and is an employee of the State of Oregon until 
and unless he is called into federal service. The 
Commander-in-Chief of Staff Sergeant Haas is the 
Governor of the State of Oregon . The Supreme Court 
has recognized the dual nature of a National Guard and 
the fact that National Guardsmen only lose their status 
as a member of a state National Guard when they are 
“drafted into federal service by the President.” 
Perpich v. Department of Defense, ___ U.S. ___, 110 S. 
Ct. 2418, 2424 (1990). As a member of the Oregon 
National Guard; Staff Sergeant Haas is permitted to 
assist the federal government in law enforcement, as he 
did here. The National Guard is specifically authorized 
by Congress to assist in counter-drug activities when 
not drafted into federal service by the President. 
32 U.S.C. § 112. 

Kyllo’s motion to suppress evidence on the grounds 
that it is unlawful to use a member of the Oregon 
National Guard in federal law enforcement in the State 
of Oregon is denied. 

71 

CONCLUSION 

The court finds that the statements made as to the 
power usage at the residence at 878 Rhododendron 
Drive, Florence, Oregon were not made with reckless 
disregard for the truth and, as such, should not be 
omitted from the affidavit in support of the search 
warrant; that the use of a thermal imaging device does 
not constitute an impermissible search under the 
Fourth Amendment; and that the use of a National 
Guardsman to operate the thermal imaging device was 
not unlawful. 

Kyllo’s motion to suppress evidence (#30) is denied. 

DATED this 4 day of December, 1992. 

/s/ HELEN J. FRYE 

HELEN J. FRYE 
United States District 

Judge 

72 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 96-30333 
D.C. NO. CR-92-00051-1-HJF 

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE 

v. 

DANNY LEE KYLLO, DEFENDANT-APPELLANT 

[Filed: Dec. 14, 1999] 

ORDER 

Before: BRUNETTI, NOONAN, and HAWKINS, Circuit 

Judges. 

Judges Brunetti and Hawkins have voted to deny the 
petition for rehearing and the petition for rehearing en 
banc. Judge Noonan has voted to grant the petition for 
rehearing and the petition for rehearing en banc. 

The full court has been advised of the petition for 
rehearing en banc and no active judge has requested a 
vote on whether to rehear the matter en banc. Fed. R. 
App. P. 35. 

The petition for rehearing and the petition for 
rehearing en banc are denied. 

73