Depew

MEMORANDUM *

Robert Elzay Depew appeals his conviction and sentence for manufacturing a controlled substance, in violation of 21 U.S.C. § 841 (a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand.

Depew’s argument that law enforcement agents entered the curtilage of his house when they conducted a thermal scan of the building has been rendered moot by the Supreme Court’s recent decision in Kyllo v. United States, — U.S. — , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001). Under Kyllo , the thermal scan was a search, and hence violated the Fourth Amendment, no matter where the agents were standing when *564 they conducted it. The information gained from the thermal scan therefore cannot be used to support the probable cause determination underlying the search warrant that was issued.

The district court held, however, that even without the information from the thermal scan, the affidavit of Agent Richard Hicks contains sufficient evidence to support a finding of probable cause, but it did not explain what information in the affidavit it was relying on. The issue is further clouded by apparent inconsistencies in the district court’s prior opinion in this…