United States v. Steven G. Huggins Vicki Jo Jensen Dahcota Whip Hagen Rhonda Taylor

299 F.3d 1039 UNITED STATES of America, Plaintiff-Appellee, v. Steven G. HUGGINS; Vicki Jo Jensen; Dahcota Whip Hagen; Rhonda Taylor, Defendants-Appellants. No. 01-30065. No. 01-30110. No. 01-30111. No. 01-30112. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 7, 2002. Filed August 6, 2002. Shaun S. McCrea, McCrea, P.C., Eugene, OR, argued the cause and filed briefs for appellant Huggins. Marc A. Spence, Spence & Sabitt, LLP, Eugene, OR, filed a brief for appellant Jensen. Craig E. Weinerman, Assistant Federal Public Defender, Eugene, OR, argued the cause and filed briefs for appellant Hagen. David M. Michael, Law Offices of David M. Michael, San Francisco, CA, filed a brief for appellant Taylor. Jeffrey J. Kent, Assistant United States Attorney, Eugene, OR, argued the cause for appellee United States of America. Michael W. Mosman, United States Attorney, was on the brief. Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding. D.C. No. CR-99-60012-HO. Before: B. FLETCHER, O'SCANNLAIN, and BERZON, Circuit Judges. Opinion by Judge O'SCANNLAIN; Concurrence by Judge BETTY B. FLETCHER.…

Opinion by Judge O’SCANNLAIN; Concurrence by Judge BETTY B. FLETCHER.

OPINION

We must decide whether the Fourth Amendment compels the suppression of the results of a series of searches set in motion by an application to scan a private residence and its outbuildings with a thermal imaging device.

I

In October 1998, DEA special agent Ronald Wright and IRS special agent Kurt Charlton interviewed a prisoner incarcerated on federal drug charges, seeking information on drug trafficking activity in southern Oregon. The informant gave them a tip that an individual variously known as Galen Maxwell, Courtney Maxwell, and Steve Huggins (“Huggins”) was involved in producing and distributing marijuana and LSD. The informant added that he had last spoken to Huggins three years before, that Huggins had then lived in the Eugene area but might have since moved to Ashland, and that at the time Huggins had had a girlfriend named “Rhonda.”

Wright proceeded to corroborate some of the details of the tip. He established that a Steve Huggins had listed 199 Mow-etza Drive, Ashland, Oregon, as his address on a still-current vehicle registration and on an Oregon driver’s license that had expired six…

special concurrence:

I specially concur in the majority opinion. I am in agreement that the good-faith exception applies in this case, but write separately because the majority errs in failing to make an explicit finding that no probable cause existed to issue the first warrant that authorized a thermal imaging search of the Mowetza property.

In United States v. Leon, 468 U.S. 897, 900 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), the Supreme Court held that the Fourth Amendment’s exclusionary rule does not prevent the use of evidence “obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.” Mindful of the concern that the application by courts of this “good-faith exception” could “preclude review of the constitutionality of the search or seizure, deny needed guidance from the courts, or freeze Fourth Amendment law in its present state,” id. at 924 , 104 S.Ct. 3405 , the Court reasoned as follows:

Id. at 925 , 104 S.Ct. 3405 .

Following Leon , which allows reviewing courts “to exercise an informed discretion” in deciding whether to apply probable cause analysis…