Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Criminal Action No. 92-00090-01).
Present: Becker, Hutchinson and Roth, Circuit Judges.
HUTCHINSON, Circuit Judge.
Tab R. Deaner ("Deaner") appeals an order of the United States District Court for the Middle District of Pennsylvania denying his motion to suppress evidence seized from his residence upon execution of a search warrant and the term of incarceration imposed on him by the Guidelines sentencing order the district court entered after Deaner's conditional guilty plea. We will affirm.
The district court had subject matter jurisdiction under 18 U.S.C.A. § 3231 (West 1985). This Court has appellate jurisdiction under 28 U.S.C.A. § 1291 (West Supp. 1993) and 18 U.S.C.A. § 3742(a) (West 1985 & Supp. 1993).
After a search of Deaner's residence revealed the indoor cultivation of marijuana, a grand jury indicted him on one count of possession of marijuana with intent to manufacture and distribute under 21 U.S.C.A. § 841(a)(1) (West 1981), and one count of conspiracy to possess marijuana with intent to manufacture and distribute under 21 U.S.C.A. § 846 (West Supp. 1993) and § 841(a)(1). Deaner filed a motion to suppress the marijuana plants and horticultural equipment that were seized during the search arguing that the government's use of a forward-looking infra-red device ("FLIR") to gauge the heat emanating from his residence was a prohibited warrantless search, and that the affidavit upon which issuance of the search warrant was based did not establish probable cause. The district court ruled against Deaner on both issues in denying his motion to suppress. Deaner then entered a conditional guilty plea to the count in the indictment charging him with possession with intent to manufacture or distribute marijuana.*fn1
Before he pleaded guilty, Deaner had submitted to the government a written request for discovery of physical evidence. The government concedes that the request included the marijuana plants it had seized during the physical search of Deaner's residence. See Brief for Appellee at 29. The government did not respond to the request, and defense counsel made no attempt to inspect the marijuana before Deaner entered his guilty plea.
After Deaner's conditional guilty plea, his counsel specifically asked to examine the marijuana. The government informed him that it had been destroyed because it was rotting and taking up needed space. After a sentencing hearing, the district court sentenced Deaner under the United States Sentencing Guidelines ("Guidelines") to twenty-one months incarceration, followed by two years supervised release, and a $50 special assessment. Deaner's sentence was based in part on the weight of the marijuana. He filed a timely notice of appeal.
On April 1, 1992, a magistrate Judge issued a search warrant to Drug Enforcement Administration ("DEA") agents. The decision to issue the warrant was based upon an affidavit of probable cause executed by DEA Special Agent Mark Andrasi. The facts set out in the affidavit control at least one of the suppression issues Deaner raises. Therefore, we recite them in detail.
Andrasi began the affidavit by stating that he had been employed as a special agent since June 1991, during which time he had participated in numerous narcotics investigations. He went on to say that from December 1991 through March 1992, he was taking part in an investigation of indoor cultivation of cannabis. Deaner became a suspect after the DEA learned that he had made mail order purchases of 244 pounds of supplies from Wormsway Organic Indoor/Outdoor Garden Supply ("Wormsway") between May 1987 and April 1991. Andrasi related in the affidavit that he had learned "through additional intelligence information" that Wormsway was a supplier of cultivation equipment seized in various indoor marijuana cultivation operations, and that Wormsway was an advertiser in Hightimes Magazine, a publication devoted to promoting the growth and use of marijuana. Appellant's Appendix ("App.") at 23. Andrasi cited a copy of an affidavit written by another DEA special agent as the source of his knowledge. That affidavit had been used to obtain a search warrant for Wormsway in October 1989. Andrasi also stated that undercover agents had discussed marijuana cultivation with Wormsway's owner and at least one of its employees "on numerous occasions," id. at 24, and that the agents had purchased equipment from Wormsway after telling its owner that the purchases would be entirely used in marijuana cultivation.
Andrasi's affidavit also said that on January 24 and March 16, 1992, he "examined the household refuse" of Deaner and recovered marijuana stems and leaves mixed with soil on both occasions. Id. at 25. The affidavit described the marijuana retrieved on one occasion as "very fresh and green." Id. The search of Deaner's garbage also uncovered several halves of one gallon plastic jugs, which the affidavit explains cannabis producers often use for germination, and a Wormsway receipt for the purchase of fertilizer. Andrasi's affidavit did not precisely indicate where the garbage was located when it was seized or where it was searched.
In the affidavit Andrasi goes on to state that he reviewed UPS shipping records on March 19, 1992, and they indicated that Deaner had received five packages from Wormsway at regular intervals between April 26, 1991 and January 22, 1992, each weighing two pounds. Because he knew that marijuana growers must use a large amount of fertilizer over a long period of time, Andrasi said this regular flow of packages from Wormsway supported his belief that Deaner was cultivating marijuana.
In addition, the affidavit stated that the rear windows of Deaner's residence were boarded up and a side window was covered with opaque plastic. It explained that people cultivating marijuana indoors often cover the windows of their homes with plastic both to keep the heat resulting from cultivation inside and to prevent persons outside from seeing in. The affidavit described Deaner's house in detail, stating it is surrounded by a corral-style fence with a large metal gate protecting the driveway and a dog house located about 100 yards from the back of the residence.
The affidavit also stated that on March 31 and April 1, 1992, DEA agents conducted an aerial reconnaissance of the properties located in Deaner's neighborhood using a FLIR. The FLIR is a forward-looking infra-red device that detects heat sources and measures their relative intensity. DEA Agent Phelan testified at the suppression hearing that the FLIR is a "passive" device which detects only thermal energy that has been radiated from a particular source through the air to the point where the FLIR receives the signal. Aerial reconnaissance of Deaner's neighborhood with the FLIR did indicate his residence was emanating an inordinate amount of heat in comparison with other residences in the area. With respect to the FLIR, Andrasi's affidavit stated that the amount of heat radiating from Deaner's premises was consistent with another positive FLIR sighting for indoor cannabis cultivation. The affidavit explained that grow lights used in cultivating marijuana produce a great intensity of heat.
Using a warrant issued in reliance on this affidavit, DEA agents, along with Alcohol, Tobacco and Firearms ("ATF") agents, the U.S. Marshal's service, and the Pennsylvania State Police, searched Deaner's residence. They found and seized about twenty marijuana plants, each approximately three feet high, equipment and other items used in growing marijuana, as well as pre-packaged harvested marijuana. The agents videotaped Deaner's residence during the search. The videotape shows the number of plants, their size, and the indoor growing operation. In addition, the DEA photographed the plants a number of times from different angles and had them weighed by an official of the Bureau of Standards, Weights and Measures, an agency in the Commonwealth of Pennsylvania's Department of Agriculture.
Deaner raises three issues on appeal. First, he argues that the magistrate erred in relying on the evidence found in his "household refuse" to establish probable cause because the affidavit did not indicate on its face that Andrasi had found and searched the refuse outside the curtilage of Deaner's residence. Deaner's second argument is that the DEA had to get a search warrant before it could constitutionally use the FLIR to monitor the heat emanating from his residence. In short, Deaner contends that the use of a FLIR to monitor heat emanation is a search within the meaning of the Fourth Amendment's prohibition against unreasonable searches and seizures and therefore requires a warrant. Finally, Deaner contends that the district court erred in using the government's evidence of the marijuana's weight to calculate his Guidelines sentence because the government's destruction of the marijuana after he asked to inspect it was fundamentally unfair.
This Court's review of the legal questions involved in the denial of a suppression motion is plenary, but "after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review." Illinois v. Gates, 462 U.S. 213, 236, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). Instead, the standard for review of a determination of probable cause is whether the issuing authority, in this case a magistrate Judge, had a substantial basis for concluding a search would uncover evidence of wrongdoing. Id. Reviewing courts must defer to determinations of probable cause made by the judicial officer who issued the warrant if, based on the whole affidavit, there is a reasonable common sense likelihood that the search will uncover evidence of criminal acts. The Gates standard is often referred to as a totality of the circumstances test. Id.
This Court's examination of Deaner's sentence to determine whether it was imposed in violation of law or as a result of an incorrect application of the Guidelines involves issues of law subject to plenary review. See 18 U.S.C.A. § 3742(a)(1), (2); ...