United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3111
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
David McIntyre, *
*
Appellant. *
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Submitted: March 18, 2011
Filed: July 27, 2011
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Before SMITH, BRIGHT, and SHEPHERD, Circuit Judges.
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SMITH, Circuit Judge.
David McIntyre conditionally pleaded guilty to knowingly and intentionally
manufacturing and attempting to manufacture 100 or more marijuana plants, in
violation of 21 U.S.C. §§ 841(a) and 841(b)(1), reserving the right to appeal the
district court's1 denial of his motion to suppress. On appeal, McIntyre argues that the
district court erroneously failed to suppress (1) a county attorney subpoena, (2)
thermal imaging search warrants, and (3) a search warrant of his residence. We affirm.
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
I. Background
On December 8, 2008, Nebraska State Patrol (NSP) Investigator Jason Sears
and Nebraska State Trooper Lueders2 contacted McIntyre outside of his residence in
Fremont, Nebraska, investigating a missing-person case. McIntyre had purchased
from a person of interest in that case a trailer, which might have been used to dispose
of a vehicle. Investigator Sears questioned McIntyre about the trailer, and McIntyre
invited the officers into his residence while he looked for the trailer's title. As
Investigator Sears walked by the vehicle parked in the driveway, he noticed a pen tube
in the ashtray, which he thought was a "tooter" used to ingest controlled substances.
While inside the residence, Investigator Sears smelled a strong odor of raw marijuana,
resulting in symptoms that he described as an allergic reaction to the odor.
Investigator Sears also noted that McIntyre was visibly nervous when talking about
the trailer, and McIntyre's hands shook as he handed the trailer title papers to
Investigator Sears. McIntyre said that the trailer was loaded with wood and was either
at his cabin in Crofton, Nebraska, or at Mark Narke's residence. McIntyre stated that
he only visited his cabin one or two weekends per month. McIntyre called Narke and
told him to take the trailer to Narke's residence in Santee, Nebraska, and unload the
wood. He told Narke to have the trailer at the residence before NSP officers arrived.
Inspector Sears overheard the telephone conversation between McIntyre and Narke.
Later that day, Investigator Sears and Trooper Lueders drove to Narke's
residence and inspected the trailer. It was empty. Narke declared his ignorance of
anything being loaded on the trailer. With Narke's permission, the officers inspected
the trailer and the buildings on the property and found nothing unusual.
On January 9, 2009, at 7:00 a.m., Investigator Sears and Cedar County Sheriff
Larry Koranda drove past McIntyre's Crofton residence to determine whether there
was a garage at the residence, and, if so, whether the garage could hold a pickup
2
Trooper Lueders's first name is not reported in the record.
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truck—an object in the missing-person investigation. They saw an Oldsmobile backed
up to a garage door. When they returned to the residence at 1:00 p.m., the Oldsmobile
was gone. The officers viewed the garage. Investigator Sears noticed a hanging
shingle on the garage, a small hose protruding from under the garage door, and a
strong odor of raw marijuana near the garage. Again, the odor of the marijuana caused
Investigator Sears to suffer symptoms that he described as an allergic reaction.
Subsequently, Investigator Sears retrieved McIntyre's arrest record and found two
prior drug-related arrests from 1981 and 2003.
Based upon the smell of raw marijuana and McIntyre's criminal history,
Investigator Sears decided to obtain and examine McIntyre's electricity usage records.
He called the Cedar-Knox Public Power District and asked General Manager Daniel
Leise for the electricity usage records for the Crofton residence. Leise informed
Investigator Sears that he needed a subpoena to obtain the records. NSP Investigator
Douglas Kelley contacted the Knox County Attorney and obtained a county attorney's
subpoena for electricity usage records for the Crofton residence. After Investigator
Sears presented Leise with the subpoena, Leise gave Investigator Sears a single sheet
of electrical usage for the past three years. The document showed a huge spike in
electrical usage for November 2008. This apparent spike, however, was later shown
to be inaccurate because the reported number actually reflected usage for November
and December 2008. Leise told Investigator Sears that the usage seemed higher than
that of neighboring properties and informed Investigator Sears that if further records
were needed, Leise could obtain them. Investigator Sears made no further requests.
On January 14, 2009, Investigator Kelley applied for a thermal imaging warrant
for the Crofton residence and submitted an affidavit in support of the warrant. In the
search-warrant affidavit, Investigator Kelley cited Investigator Sears's allergic reaction
to the smell of raw marijuana at both of McIntyre's residences, McIntyre's drug arrest
history, the electrical usage record, the "tooter" observed in McIntyre's truck at the
Fremont residence, and information about the use of thermal imaging in locating
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marijuana-growing operations. A Knox County judge issued the thermal imaging
warrant the same day. That evening, Investigator Kelley executed the warrant. The
warrant was returned to the court with a recording of thermal imagery showing more
electrical usage in the garage than in the living areas of the Crofton residence.
On January 15, 2009, Investigator Kelley sought and obtained a second thermal
imaging warrant for the Crofton residence. According to Investigator Kelley, he
obtained the second warrant to compare readings from other residences in the area.
Investigator Kelley testified that he told the issuing Knox County judge that he
intended to obtain information from nearby homes for comparison purposes but did
not include that information in the affidavit. This warrant was executed and returned
with a recording of thermal imagery showing that greater heat was generated in the
living areas in the neighboring residences than their accompanying garages.
Based on the information set forth in the thermal imaging search-warrant
affidavits and the thermal imagery obtained as a result of the warrants, on January 16,
2009, Investigator Kelley sought and obtained a search warrant for the Crofton
residence. In executing the warrant, officers discovered a marijuana-growing
operation and seized it. That same day, a search warrant was also issued for
McIntyre's Fremont residence, but officers found no evidence of illegality.
II. Discussion
On appeal, McIntyre asserts that the district court erred by not suppressing (1)
the county attorney subpoena, (2) thermal imaging search warrants, and (3) a search
warrant of his Crofton residence.
"On appeal of a motion to suppress, we review the district court's legal
conclusions de novo and factual findings for clear error." United States v. Frasher,
632 F.3d 450, 453 (8th Cir. 2011).
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A. County Attorney Subpoena
McIntyre argues that the district court erred in not suppressing the subpoena
duces tecum by which the NSP received electricity usage records for the Crofton
residence. According to McIntyre, he had an expectation of privacy in those records
because they contained intimate details about the interior of his home. Consequently,
he maintains that investigators should have obtained these records via a search
warrant. Additionally, McIntyre contends that he has a state statutorily-protected
privacy interest in the electrical usage at his residence.
1. Reasonable Expectation of Privacy
"The touchstone of Fourth Amendment analysis is whether a person has a
constitutionally protected reasonable expectation of privacy." California v. Ciraolo,
476 U.S. 207, 211 (1986) (quotation and citation omitted). The Supreme Court
has held repeatedly that the Fourth Amendment does not prohibit the
obtaining of information revealed to a third party and conveyed by him
to Government authorities, even if the information is revealed on the
assumption that it will be used only for a limited purpose and the
confidence placed in the third party will not be betrayed.
United States v. Miller, 425 U.S. 435, 443 (1976) (holding that bank depositer has no
legitimate expectation of privacy in copies of checks and deposit slips retained by his
bank); cf. Couch v. United States, 409 U.S. 322, 335 (1973) ("[T]here can be little
expectation of privacy where records are handed to an accountant, knowing that
mandatory disclosure of much of the information therein is required in an income tax
return."); Smith v. Maryland, 442 U.S. 735, 744 (1979) (holding that "[w]hen
[defendant] used his phone, [he] voluntarily conveyed numerical information to the
telephone company and 'exposed' that information to its equipment in the ordinary
course of business").
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Here, Investigator Sears served the Cedar-Knox Public Power District—a third
party—with the county attorney subpoena. "Because it is well-settled that 'the Fourth
Amendment does not prohibit the obtaining of information revealed to a third party
and conveyed by him to Government authorities[,]' [McIntyre's] claim[] fail[s]."
United States v. Hamilton, 434 F. Supp. 2d 974, 979 (D. Or. 2006) (holding defendant
lacked reasonable expectation of privacy in his utility records, meaning law
enforcement officer did not need probable cause to obtain records because information
contained in the records was voluntarily revealed by defendant to utility company, a
third-party recipient) (quoting Miller, 425 U.S. at 443).
But McIntyre
argues that power records are different. He relies on Kyllo v. United
States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) for the
proposition that a person has a reasonable expectation of privacy in his
power records because the information from the records is legally
indistinguishable from the power information protected by the Fourth
Amendment in Kyllo.
Id. at 980. We reject McIntyre's argument and conclude that
[t]he manner in which the information was obtained in Kyllo (a
thermal-imaging device), however, bears no resemblance to obtaining
power data from a third party by way of [a county attorney] subpoena.
Crucial to the Kyllo holding was the intrusion on the home by
"sense-enhancing technology . . . not in general public use." Id. at 34,
121 S. Ct. 2038. Thus, while the information obtained may be similar,
the means to obtaining the information is legally significant and defeats
[McIntyre's] argument. Instead, Smith v. Maryland, a case in the Miller
line, is on point. There the court held that "[w]hen [defendant] used his
phone, [he] voluntarily conveyed numerical information to the telephone
company and 'exposed' that information to its equipment in the ordinary
course of business" and therefore did not have an objectively reasonable
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expectation of privacy in that information. Smith, 442 U.S. at 744, 99
S. Ct. 2577. Similarly, when [McIntyre] used power in his home, he
voluntarily conveyed that information to [Cedar-Knox Public Power
District]. As a result, he had no reasonable expectation of privacy in his
power records.
Id.; see also United States v. Porco, 842 F. Supp. 1393, 1398 (D. Wyo. 1994)
(rejecting defendants' argument that "they had an expectation of privacy in the records
of their electrical usage kept by Rural Electric because Rural Electric would not
voluntarily disclose a person's electric usage" because "the Fourth Amendment does
not prohibit the obtaining of information revealed to a third party and conveyed by the
third party to government authorities, even if the information is revealed to the third
party confidentially and on the assumption that it will be used only for limited
purposes"); Samson v. State, 919 P.2d 171, 173 (Alaska Ct. App. 1996) (finding no
reasonable expectation of privacy in power consumption utility records).
2. State Statutorily-Protected Privacy Interest
Additionally, McIntyre argues that he has a statutorily-protected privacy interest
in his electrical usage at his Crofton residence under Nebraska Revised Statute § 70-
101. According to McIntyre, authorities also "breached the very process [they] cited
as authority in [their] efforts to obtain the records"—Nebraska Revised Statute § 25-
1273. He argues that the government failed to demonstrate that any of the discovery
rules authorized discovery from a nonparty in this case, as required by § 25-1273.3
3
Section 25-1273 provides:
When the discovery rules promulgated by the Supreme Court authorize
discovery from a nonparty without a deposition, a subpoena shall be
issued by the clerk of the court before whom the action is pending upon
request of a party. An attorney as an officer of the court may also issue
and sign such a subpoena on behalf of a court in which the attorney is
authorized to practice. The subpoena shall be served in the time and
manner required by the discovery rules. Such discovery rules shall not
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And, he contends that, while the subpoena claims that Nebraska Rule of Civil
Discovery 34A grants the issuing county attorney the "authority" to issue it, the rule
applies to civil cases, not criminal cases.
Here, Knox County Attorney John Thomas issued the subpoena duces tecum,
under the purported authority of § 25-1273, commanding Cedar-Knox Public Power
District to provide "[a] true and complete copy of all electricity usage records and
reports" for the Crofton residence. (Emphasis added.) McIntyre argues that he has a
statutorily-protected interest in these usage records under § 70-101, which provides:
Notwithstanding any other provision of law regarding confidentiality of
records, every district or corporation organized under Chapter 70 shall,
upon request, furnish to any county attorney, any authorized attorney as
defined in section 42-347, or the Department of Health and Human
Services a utility service subscriber's name, social security number, and
mailing and residence addresses only for the purposes of establishing
and collecting child, spousal, and medical support and of conducting
reviews under sections 43-512.12 to 43-512.18. Such information shall
be used for no other purpose. An action may be filed in district court to
enforce this section. For purposes of this section, utility service shall
mean electrical, gas, water, telephone, garbage disposal, or waste
disposal service.
(Emphasis added.)
As the district court explained, McIntyre's "argument that § 70-101 provides an
expectation of privacy by restricting the dissemination to the county attorney of utility
subscriber information is deficient because that statute relates only to identifying
information and not to usage records." United States v. McIntyre, 683 F. Supp. 2d
be construed to permit discovery by subpoena if the information is
protected by statute or if that procedure conflicts with any other statute.
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1020, 1026 (D. Neb. 2010) (emphasis added). Therefore, we conclude that McIntyre's
Fourth Amendment rights were not violated by law enforcement's use of the subpoena,
and a search warrant was unnecessary to obtain the usage records.
We also reject McIntyre's argument that the subpoena was deficient because it
was not served in compliance with § 25-1273 or Nebraska Rule of Civil Discovery
34A. As the district court explained, "[regardless of these issues, the county attorney
has subpoena power, under the circumstances present here, pursuant to Neb. Rev. Stat.
§ 86-2,112." Id. at 1033. Section 86-2, 112 states that "any county attorney may
. . . require the production of records . . . which constitute or contain evidence relevant
or material to the investigation or enforcement of the laws of this state when it
reasonably appears that such action is necessary and proper."
And, even if state law was violated, "state law violations do not necessarily
offend the Federal Constitution." United States v. Burtton, 599 F.3d 823, 828 (8th Cir.
2010) (quotation and citation omitted). "Thus, when a federal court must decide
whether to exclude evidence obtained through an arrest, search, or seizure by state
officers, the appropriate inquiry is whether the arrest, search, or seizure violated the
Federal Constitution, not whether the arrest, search, or seizure violated state law." Id.
(quotation and citation omitted). For the reasons set forth supra in Part A.1, we hold
that no Fourth Amendment violation occurred.
B. Thermal Imaging Search Warrants
McIntyre also argues that the district court erred in denying his motion to
suppress the thermal imaging search warrants and request for a Franks4 hearing
because the one-page utility record that Investigator Sears received and referenced in
his supporting affidavit contained false information, as it improperly combined
electrical usage for November and December 2008 and referred to that sum as only
4
Franks v. Delaware, 438 U.S. 154 (1978).
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electrical usage for November 2008. According to McIntyre, this fact alone should
have entitled him to a Franks hearing to determine the search warrant's veracity. He
also asserts that Investigator Kelley falsely indicated in his supporting affidavit that
he had obtained "records" and "reports" regarding McIntyre's utility usage when, in
fact, he had only obtained a one-page report. McIntyre contends that this false
information constitutes a misrepresentation that should have entitled him to a Franks
hearing. According to McIntyre, once the false information is omitted from the
affidavit, the remaining portions of the affidavit do not establish probable cause.
"We review the denial of a Franks hearing for abuse of discretion." United
States v. Kattaria, 553 F.3d 1171, 1177 (8th Cir. 2009) (en banc) (per curiam).
To obtain relief under Franks, "a defendant must first demonstrate that
the law enforcement official deliberately or recklessly included a false
statement, or omitted a truthful statement from his warrant affidavit."
United States v. Carpenter, 422 F.3d 738, 745 (8th Cir. 2005) (citation
omitted). Next, the defendant must show that the affidavit would not
establish probable cause if the allegedly false information is ignored or
the omitted information is supplemented. United States v. Reinholz, 245
F.3d 765, 774 (8th Cir. 2001). Allegations of negligence or innocent
mistake will not suffice to demonstrate reckless or deliberate falsehood.
Franks, 438 U.S. at 171, 98 S. Ct. 2674; United States v. Davis, 471 F.3d
938, 946 (8th Cir. 2006). Recklessness, however, may be "inferred from
the fact of omission of information from an affidavit . . . when the
material omitted would have been 'clearly critical' to the finding of
probable cause." United States v. Reivich, 793 F.2d 957, 961 (8th Cir.
1986) (citation omitted).
United States v. Mashek, 606 F.3d 922, 928 (8th Cir. 2010) (emphasis added). In
determining if "an affiant's statements were made with reckless disregard for the
truth," the test "is whether, after viewing all the evidence, the affiant must have
entertained serious doubts as to the truth of his statements or had obvious reasons to
doubt the accuracy of the information he reported." United States v. Butler, 594 F.3d
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955, 961 (8th Cir. 2010). "A showing of deliberate or reckless falsehood is not lightly
met." Id. (quotation and citation omitted).
Here, the alleged falsehoods "do not meet the 'substantial preliminary showing'
required by Franks." United States v. Crissler, 539 F.3d 831, 834 (8th Cir. 2008).
First, as to the utility record's inaccurate accounting of the November 2008 usage,
there is no evidence to support a finding that Investigator Sears and Investigator
Kelley had reason to believe or knew that the report that Cedar-Knox Public Power
District provided to them erroneously combined November 2008 and December 2008
usage. McIntyre has failed to show that the investigators "had obvious reasons to
doubt the accuracy of the information" that the public utility company provided to
them. Butler, 594 F.3d at 961.
Second, as to Investigator Kelley's reference to "reports" and records" in the
affidavit when, in fact, he only had a one-page report, to the extent that this statement
is inaccurate, there is no evidence that Investigator Kelley deliberately or recklessly
made the statement or that the statement was material. See Mashek, 606 F.3d at 928.
The number of documents or pages in the utility usage report mattered little to the
merit of the affidavit. Furthermore, the one-page report that the Cedar-Knox Public
Power District provided was a summation of over three years of kilowatt usage.
Therefore, we hold that the district court did not err in failing to grant
McIntyre's request for a Franks hearing and accordingly need not address whether the
remaining portions of the supporting affidavit would support a probable cause finding.
United States v. Curry, 911 F.2d 72, 76 (8th Cir. 1990) ("We need not address this
second issue because, with respect to both alleged falsehoods, [the defendant's] offers
of proof were insufficient to meet the first Franks requirement.").
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C. Crofton Residence Search Warrant
Finally, McIntyre argues that the search warrant for his Crofton residence is
"fruit of the poisonous tree" stemming from the county attorney subpoena and thermal
imaging warrants. According to McIntyre, "[t]he affidavit and resulting search warrant
for the Crofton residence was the culmination of the subpoena for electrical records
and the thermal warrants. Removing or excising either of the proceeding [sic]
investigative tools defeats the crescendo of probable cause established by the previous
warrants and/or subpoena."
McIntyre's assertion that the district court erred by declining to suppress the
search warrant of his Crofton residence is based on his arguments that the district
court should have suppressed the county attorney subpoena and thermal imaging
search warrants. Because we have already rejected these arguments, see supra Parts
A–B, his "'fruit of the poisonous tree' argument fails." See United States v. Martinez,
462 F.3d 903, 910 (8th Cir. 2006).
And, our independent review of the record confirms that the search warrant for
the Crofton residence was supported by probable cause.
"Our role is to ensure that the evidence as a whole provides a substantial
basis for finding probable cause to support the issuance of the search
warrant" for [McIntyre's] residence. United States v. Terry, 305 F.3d
818, 822 (8th Cir. 2002). "Whether probable cause . . . has been
established is determined by considering the totality of the
circumstances, and resolution of the question by an issuing judge 'should
be paid great deference by reviewing courts.'" United States v. Grant,
490 F.3d 627, 631 (8th Cir. 2007), cert. denied, ___U.S. ___, 128 S. Ct.
1704, 170 L. Ed. 2d 516 (2008) (quoting Illinois v. Gates, 462 U.S. 213,
236, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)). "When the affidavit
supporting the search warrant sets forth facts sufficient to create a fair
probability that evidence of a crime will be found in the place to be
searched, probable cause exists." Terry, 305 F.3d at 822. "Accordingly,
we examine the sufficiency of a search-warrant affidavit using a
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'common sense' and not a 'hypertechnical' approach." Grant, 490 F.3d at
632 (quoting United States v. Solomon, 432 F.3d 824, 827 (8th Cir.
2005)).
United States v. McArthur, 573 F.3d 608, 613 (8th Cir. 2009).
Here, considering the totality of the circumstances, probable cause existed to
issue the search warrant for the Crofton residence. First, the supporting affidavit set
forth Investigator Sears's encounter with McIntyre on December 8, 2008, at the
Fremont residence where Investigator Sears saw a pen tube—a "tooter" believed to
be used to ingest controlled substances—in the ash tray of McIntyre's vehicle. While
at the Fremont residence, Investigator Sears observed McIntyre's unusual and
extremely nervous behavior and smelled raw marijuana at the residence. Second, the
affidavit reported that on January 9, 2009, Investigator Sears smelled a strong odor of
raw marijuana outside the garage of the Crofton residence and saw a small hose
coming out from under the garage door. Third, the affidavit recounts Investigator
Kelley's discovery of McIntyre's previous drug arrests. Fourth, the affidavit explains
that Investigator Sears obtained the electricity usage records for the Crofton residence,
which was "unusually high for [a] person that lived at the residence continuously."
Finally, the affidavit recounts Investigator Kelley's knowledge, from training and
experience, that "thermal imagery i[s] an investigative tool used by law enforcement
to assist in the detection of indoor marijuana grow operations, whereas grow
operations produce large amounts of heat from the grow lights." The affidavit then
explains that the two thermal imagery readings of the Crofton residence showed,
respectively, a higher heat signature emanating from the garage area than from the
living quarters of the home and from comparable residences in McIntyre's
neighborhood.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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