8th Cir.: Reasonable suspicion is all that is required for a thermal imaging warrant under Kyllo

Thermal imaging warrant used for a flyover view need only be supported by reasonable suspicion. Alternatively, it was supported by probable cause anyway. United States v. Kattaria, 503 F.3d 703 (8th Cir. 2007):

The four dissenters in Kyllo argued that using a thermal imaging device to monitor heat emissions from a private residence “is an entirely reasonable public service,” and “the countervailing privacy interest is at best trivial.” 533 U.S. at 45 (Stevens, J., dissenting). The majority rejected this analytical approach in deciding whether a warrant is constitutionally required. Expressing concern about the potential invasiveness of future technology, the majority drew a bright line, requiring a warrant for the use of non-public technology, regardless of the type of information being gathered from inside the home. Id. at 40.

In our view, the “practical alternatives” factor provides good reason to shift the analysis when the issue is the quantum of evidence required to obtain a warrant solely for the purpose of conducting investigative thermal imaging. Special Agent Perry wished to conduct thermal imaging to investigate a suspected indoor marijuana grow operation. When the thermal imaging results confirmed the probable presence of an indoor grow operation, Perry applied for three warrants to conduct far more intrusive physical searches of Kattaria’s properties. His supporting affidavits included the thermal imaging results from 1814 Malvern and additional facts from Perry’s on-going investigation. This is a constitutionally reasonable investigative sequence. It provides important corroboration that criminal activity is likely being conducted in a home before the homeowner is subjected to a full physical search. If the same probable cause is required to obtain both kinds of warrants, law enforcement will have little incentive to incur the expense of a minimally intrusive thermal imaging search before conducting a highly intrusive physical search.

For these reasons, we are inclined to believe that the same Fourth Amendment reasonable suspicion standard that applies to Terry investigative stops should apply to the issuance of a purely investigative warrant to conduct a limited thermal imaging search from well outside the home. Applying that standard, the first warrant was clearly valid, taking into account what the CD told Special Agent Perry, Kattaria’s criminal history, and, most significantly, utility records showing extremely high relative electric consumption that was not explained by what Perry could observe when he drove by the 1814 Malvern residence several times.

Alternatively, the thermal imaging warrant was supported by probable cause.