Petition for Writ of Certiorari — Thomas v. United States

\

\

Supreme Court, U.S.

PIL SD t/

93121 8 JAN 25 1994

No. OFriCe OF THE ULERA

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

KEVIN K. THOMAS,

BARRY D. THOMAS,

Petitioners

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHARLES W. B. FELS

Counsel of Record

KENNETH F. IRVINE, JR.

Post Office Box 1126

Knoxville, TN 37901-1126

(615) 637-0661

Counsel for Kevin K. Thomas

DOUGLAS A. TRANT

JUDITH O. WOODS

900 S. Gay St., Suite 1502

Knoxville, TN 37902

(615) 525-7980

Counsel for Barry D. Thomas

QUESTION PRESENTED:

WHETHER THIS “OURT SHOULD ALLOW “HE SIXTH

CIRCUIT TO WEAKEN THE RULE OF ILLINOIS V.

GATES TO ALLOW CORROBORATION OF AN

ANONYMOUS LETTER BY PUBLIC, INNOCENT

DETAILS RATHER THAN BY CORROBORATION OF

“FUTURE ACTIONS OF THIRD PARTIES,

ORDINARILY NOT EASILY PREDICTED"?

ii

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED cccccceccceseces i

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CONSTITUTIONAL PROVISION

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STATEOts UF Them CRB seveeeseoeuece 4

REASONS FOR GRANTING THE WRIT .... 16

I. Introduction -- Anonymous

Informants and

COPTOROSOCEOR 4.240060 64808 84 16

Ii. The Sixth Circuit

DODGE TULTO cscccdvevcesveness r 4.

1s a CONGIGSLOR ssseetceda eee 28

APPENDIX

Fourth Amendment To The U.S.

COBSCATUSIOR 2ceeueoeeeeaceeneaneas la

Report and Recommendation, dated

oni tn - 6 a os 6-66 86-696 b 68 6 66 2a

Memorandum Opinion, dated April 17,

BOOS Cheeses eseseeestorerecescceoues 38a

Opinion of the Court of Appeals

for the Sixth Circuit, dated

PAS We BPPD cocesevsceocesecees 52a

Order on Petition to Rehear, dated

Pues Fp BOOS ceoccecocccconceeces 77a

Anonymous Letter No. 1 ........... 79a

Anonymous Letter No. 2 ...... pele Bla

iv

TABLE OF CASES AND

OTHER AUTHORITIES

PAGE

I. CASES

Draper v. United States,

; £m el. ee eee passim

Illinois v. Gates,

ee Walks: BE COO) sh ced ewseues passim

United States v. Macklin,

902 F.2d 1320

(Sth Cir. 1990) ..cccccccccccces 12

United States v. Martin,

615 F.2d 318

a re 21

United States v. Weber,

923 F.2d 1338

oan Gas) Be) aes ceeeewsev een es 29

Il. STATUTES

U.S.C. | LSSS( 2) cccvocvceeceesesses 3

W. LaFave, Search and Seizure,

§ 3.3(f), at 687 (2d ed. 1987) . 20

III. CONSTITUTIONAL PROVISION:

U.S. Constitution,

po a ee 3

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

No.

KEVIN K. THOMAS,

BARRY D. THOMAS,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners Kevin K. Thomas and Barry

D. Thomas respectfully pray that a writ of

certiorari issue to review the per curiam,

unpublished, opinion of the Court of

Appeals for the Sixth Circuit entered on

August 31, 1993, and the denial of the

petition to rehear, which was entered on

October 27, 1993.

OPINIONS BELOW

The Report and Recommendation of the

reviewing Magistrate-Judge, dated March 16,

1992, is attached at 2a. The Memorandum

Opinion of the District Judge, dated April

17, 1992, is attached at 38a.

The opinion of the Court of Appeals,

reversing the Magistrate and the District

Judge, is reprinted in the appendix. See

App. at 52a. The order denying the

petition to rehear is likewise reprinted in

the appendix. App. at 77a.

JURISDICTION

The opinion of the Sixth Circuit was

entered on August 31, 1993. The petition to

rehear was denied in an order, dated

October 27, 1993. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

U.S. Constitution, Amendment 4

This provision is set forth at App. la.

STATEMENT OF THE CASE

A. Introduction.

On March 8, 1990, the home of Kevin

and Amy Thomas was searched by federal and

state agents.’ On the same day, the home

of Barry and Angie Thomas was also searched

by federal and state agents.’

Each search was conducted pursuant to

a warrant issued by a part-time federal

magistrate. The bulk of the information

used to obtain each warrant was taken

directly out of two undated, anonymous

letters.?

The first anonymous letter was

received by several different law

Imhe correct address of this residence

is 700 Adella Avenue.

"The address of this residence is 1018

Beverly Hills Drive.

3Copies of these letters are attached at

pages 79a - 88a.

enforcement agencies on or about October

30, 1989. The second anonymous letter was

received on or about January 23, 1990. It

was not possible to determine when the

anonymous letters were actually written nor

whether they were both written by the same

person.

Most of the information set out in the

two anonymous letters consisted of innocent

facts which could be readily obtained with

little or no effort.

Significantly, the letters also

contained predictions of the future

activities of Kevin and Barry Thomas.

After receiving the second anonymous

letter, an agent of the Tennessee Bureau of

Investigation, in cooperation with other

law enforcement officers, attempted to

corroborate the two anonymous letters.

On March 8, 1990, the state agent

presented an applications for two warrants,

with identical affidavits in support, to a

part-time federal magistrate. The part-

time magistrate issued the search warrants

and they were executed the same day.

Marijuana seedlings were seized at

both locations. Charges were filed against

each of the petitioners under 21 U.S.C. §

841(a)(1).

B. Findings of the Reviewing

Magistrate.

The reviewing magistrate, Chief

Magistrate-Judge Robert P. Murrian, held a

hearing on probable cause. After carefully

reviewing the two anonymous letters, the

affidavit and the search warrants,

Magistrate Murrian issued a twenty-two (22)

page Report and Recommendation. In this

report he observed that the anonymous

letters contained twenty-nine (29) material

allegations.‘

Twenty of these twenty-nine

allegations were not corroborated in any

fashion according to the Magistrate's

Report and Recommendation.

Of the remaining nine allegations,

five were corroborated and four were

partially corroborated. None of the

corroborated items fit within the category

of "future actions of third parties

ordinarily not easily corroborated." Each

of the corroborated items was the type of

information which was readily available to

the general public.

The items which the magistrate found

were corroborated or partially corroborated

were:

‘See Report and Recommendation, dated

March 16, 1992, at 12a. (hereinafter "R &

ih

1. Barry and Angie Thomas had been

previously arrested in Knoxville for

cultivating marijuana. About 100

plants were seized from their

residence at that time.

2. Barry and Angie Thomas reside at

1018 Beverly Hills Prive and probably

have done so since Movember, 1989.

3. Kevin and Amy ThoniasS own the

property at 1018 Beverly Hills Drive.

4. Kevin and Amy Thomas own the

property at 700 Adella Avenue.

5. There is a two story out-building

on the property at 1018 Beverly Hills

Drive.

6. The air turbine on the roof of the

outbuilding at 1018 Beverly Hills

Drive sometimes spins even in light

wind conditions.

7. Barry and Angie Thomas own two

great Danes.

8. Kevin Thomas has been a utility

customer at 700 Adella Avenue since

1987.

9. There is some kind of familial,

social and/or landlord/tenant

relationship between Kevin Thomas and

Barry and Angie Thomas.

See R & R, at pp. 20a - 2la.

The Chief-Magistrate found that

although the officers had attempted to

conduct a limited investigation to

corroborate the anonymous letters, the

investigation had serious flaws. He noted

that several of the allegations made in the

anonymous letters were actually

contradicted by the officer's attempts at

corroboration.”

The Chief-Magistrate also noted that

the writer of the second anonymous letter

specifically invited the police to

corroborate certain activities that she/he

°For example, a thermal imaging test

conducted at one residence suggested that

marijuana was being grown in an open and

detached garage. This contradicted the

claim in the anonymous letters that

marijuana was being grown in the basement.

See 26a. In another instance the anonymous

informant's claim that electricity usage had

increased at a particular time was

contradicted when the records showed the

usage had decreased. See 27a - 28a.

9

predicted would happen. The Magistrate

then observed that:

The affidavit makes no mention of any

of this predicted behavior having been

observed by the police. Thus, the

affidavit is devoid of corroboration

of "future actions of third parties

ordinarily not easily predicted" which

the informant invited the police to

corroborate. See Gates, 462 U.S. at

245, 103 S.Ct. at 2335-2336. I find

this to be a crucial omission. Visual

surveillance of both premises failed

to reveal suspicious activity.

R & R, at pp. 22a - 23a. (emphasis added).

The Chief-Magistrate concluded that

probable cause did not exist when the

warrants were issued. Specifically he

found:

Without reading the affidavit in a

hypertechnical way, and giving

substantial deference to the

conclusion reached by the issuing

magistrate judge, the undersigned

concludes that the affidavit in

support of these two search warrants

does not demonstrate that there was a.

fair probability that contraband or

evidence of a crime would be found at

700 Adella Avenue or 1018 Beverly

Hills Drive on March 8, 1990, when

these two search warrants were issued.

10

R&R, at p. 35a.

B. Findings of the United States

District Judge.

The District Court adopted the Chief-

Magistrate's report and recommendation and

went further, stating that "[t]he Court

does not think that this is even a close

6

case." The court characterized the

affidavit in this case as “broad,

speculative and conclusory” and said that

it was "disturbed that warrants were ever

issued on the basis of the evidence

submitted to the issuing magistrate."’

In clear and strong language, the

District Court made the following finding:

The Court has read the application for

the warrants, together with all the

exhibits, and has considered them as a

whole and taking them together, the

Court is of the opinion that probable

{

|

‘Memorandum Opinion, -dated April 17,

1992, at p. 7. See 49a. (hereinafter "Op.

at a”).

7Op. at 46a.

cause simply does not exist. No

substantial evidence supports the

issuing magistrate's finding of

probable cause. The Court is

disturbed that warrants were ever

issued on the basis of the evidence

submitted to the issuing magistrate.

Courts do not sit to rubber stamp the

actions of law enforcement officer.

Suspicion, speculation, and innuendo

are piled on each other in the

affidavit but the totality of the

circumstances contained in it would

not lead a person of reasonable

prudence to believe at the time of the

warrant applications that evidence of

a crime would be present in the

residences of these defendants. The

Court characterizes the affidavit in

this case as "broad, speculative and

conclusory," United States v. Macklin,

902 F.2d 1320, 1326 (8th Cir. 1990).

(emphasis added).

Op. at pp. 45a - 47a.

. The District Court remanded the case,

to the reviewing magistrate, for a good

faith hearing. The Chief-Magistrate found

that the government had failed to show good

faith. Indeed the Chief-Magistrate found

that the manner in which the agents

presented the facts surrounding a test

conducted at one residence, “certainly

comes awfully close to recklessness in

presenting the facts.” The District Court

reviewed and adopted the findings of the

magistrate and ordered the suppression of

the items seized during the searches.

Thus both the Chief~-Magistrate for the

District and the District Court determined

that the affidavits in question did not

corroborate "future actions of third

parties ordinarily not easily predicted"

and that the wealth of otherwise innocent

detail that was corroborated could not

overcome this fatal deficiency.

C. The Sixth Circuit Opinion.

In a per curiam, unpublished opinion,

a panel of the Sixth Circuit reversed the

findings of the Chief-Magistrate and the

District Court. Impressed with the amount

of innocent detail contained in the two

13

anonymous letters the panel reluctantly

acknowledged that "even the detailed

knowledge displayed in the letters would

not have been enough, standing alone, to

"8 However

justify issuance of a warrant...

the panel was convinced that the issuance

of the warrants was justified because "much

of the information amenable to

corroboration was corroborated by the

police."®

The panel was undeterred by the

absence of corroboration of predicted

future actions of third parties, on which

the opinions of the Chief-Magistrate and

®The panel dealt with the lack of detail

about one residence by drawing a "natural

inference" from the greater detail at the

other residence. The panel failed to cite

any authority for this novel "natural

inference" which would seem to violate the

two separate privacy interests at stake.

See 70a - 72a.

%Sixth Circuit Opinion, dated August

31, 1993, at 7la.

14

the District Court had turned. The panel

rejected the need for such information and

stated that "corroboration of apparently

innocent items is sufficient to support the

issuance of a warrant when there are enough

items and they are particular."?°

Applying this expanded reading of

Illinois v. Gates,”

the Sixth Circuit then

reversed the Magistrate and the District

Judge, and reinstated the search warrants.

a at 7la.

11462 U.S. 213 (1983).

15

REASON FOR GRANTING THE WRIT

THIS COURT SHOULD NOT ALLOW THE SIXTH

CIRCUIT TO WEAKEN THE RULE OF ILLINOIS v.

GATES TO ALLOW CORROBORATION OF AN

ANONYMOUS LETTER BY PUBLIC, INNOCENT

DETAILS RATHER THAN BY CORROBORATION OF

"FUTURE ACTIONS OF THIRD PARTIES,

ORDINARILY NOT EASILY PREDICTED."

I. Introduction --

Anonymous Informants

and Corroboration

Probable cause in this case turns on

the efforts of the officers to corroborate

the facts contained within two anonymous

letters. There is no dispute that the two

anonymous letters, standing alone, failed

to establish the requisite probable cause

for a search of these homes.

16

The district court and the reviewing

magistrate attempted to faithfully apply

the precedents of this Court to the facts

of this case. They recognized that

anonymous tips have always been treated

with great caution because "the veracity of

persons supplying anonymous tips is by

hypothesis largely unknown, and

unknowable.” Illinois v. Gates, 462 U.S.

213, 237 (1983). The subsequent opinion of

the Sixth Circuit repudiates the wisdom of

this Court in this important area.

a. Illinois v. Gates -- Anonymous

Informants.

In Gates, the police had received an

anonymous letter asserting that a named

couple residing in a Chicago suburb were

involved in drug trafficking. The

anonymous letter went on to say that the

couple frequently travelled to Florida to

17

get drugs. It stated that the wife would

drive their car to Florida and would then

fly back to Illinois. The husband would

then fly to Florida and return the loaded

car back to Illinois. The anonymous letter

informed the police that the couple was

getting ready to make a trip to Florida to

get drugs.

Police surveillance established that

the husband flew to Florida. He then went

to a motel room which was registered in his

wife's name. The next morning he departed

with a woman and headed north on an

interstate leading to Chicago.

The Gates Court noted that the

anonymous letter contained a range of

details relating not only to easily

obtained facts and conditions which existed

at the time the tip was given, but also

relating "to future actions of third

18

parties ordinarily not easily predicted."

462 U.S. at 245. The Court observed that:

the letter writer's accurate

information as to the travel plans of

each of the Gateses was of a character

likely obtained oniy from the Gateses

themselves, or from someone familiar

with their not entirely ordinary

travel plans. If the informant has

access to accurate information of this

type a magistrate could properly

conclude that it was not unlikely that

he also had access to reliable

information of the Gateses alleged

illegal activities ....

[P]robable cause does not demand the

certainty we associate with formal

trials. It is enough that there was a

fair probability that the writer of

the anonymous letter had obtained his

entire story from either the Gateses

or someone they trusted. And

corroboration of major portions of the

letter's predictions provides just

this probability.

462 U.S. at 245-246 (footnotes omitted--

emphasis added).

The importance of the anonymous tip

being corroborated by means of police

observation of activity predicted in the

tip was central to the holding in Gates.

See Gates, 462 U.S. at 226.

19

In Gates, this Court rejected the

strict view that only corroboration of

incriminating allegations is relevant. The

Court noted that activity which might

otherwise seem innocent could become

suspicious in light of the anonymous

information provided. 462 U.S. at 243

n. 13. But, the seemingly innocent

activity to which the Court was referring

was activity the anonymous informant had

predicted and which the police had

observed.

"Even after Gates, corroboration of a

very few nonsuspicious and easily predicted

events should not suffice." W. LaFave,

Search and Seizure, § 3.3(f), at 687 (2d

ed. 1987). As the Chief-Magistrate

observed:

Even if an affidavit contains a whole

range of details, it may not be

sufficient to corroborate an anonymous

tip or tips. Such detail will have a

bearing on judging the basis of the

informant's knowledge, but is

20

irrelevant to his or her truthfulness.

An informant who is an accomplished

liar could undoubtedly spin an

elaborate lie, chocked full of easily

obtained details. See United States

v. Martin, 615 F.2d 318, 329 n.9 (5th

Cir. 1980).

R & R, at pp. 6a - 7a.

The two anonymous letters in the

present case simply were not corroborated

to the extent required by Gates. As the

Magistrate and District Court correctly

noted, the corroboration of five

allegations, and the partial corroboration

of four other, pales in comparison to the

corroboration in Gates in which police

observed in a detailed fashion exactly the

kind of trip to Florida the anonymous

informant had predicted.

b. Draper v. United States --

Confidential Informants.

Gates of course involved an anonymous

informant of unknown reliability. Even in

21

cases where this Court has reviewed

information from known informants of known

reliability, it has never adopted the

remarkable approach suggested by the Sixth

Circuit in this case. In Gates, this Court

cited Draper v. United States, 358 U.S. 307

(1959), for the proposition that otherwise

innocent activity might become relevant

based on the corroborative efforts of the

police.

The Gates Court described Draper as

"the classic case on the value of

corroborative efforts of police officers.”

462 U.S. at 242. In Draper, a paid

informant told police that the suspect had

gone to Chicago the day before by train;

that he would return to Denver one or two

days later; that he would be carrying three

ounces of heroin; that he would return

during the morning hours on the train; that

the suspect had a certain physical

22

description; that he would be wearing

certain described clothing; that he would

be carrying a tan zipper bag; and that the

suspect always walked real fast. 358 U.S.

at 309.

The police surveilled the train

station and, on the second day after

receiving the tip, observed a suspect

alight from the Chicago train at Denver's

Union Station. He met the exact physical

description given by the informant, he was

wearing the precise clothing described by

the informant, he was walking fast and he

was carrying a tan zipper bag. 358 U.S. at

309.

The informant in Draper had given this

detailed description of a suspect and had

predicted these future activities of the

suspect. This Court held that since the

police had verified all of the informant's

predictions of future activities, except

23

the possession of heroin, there were now

reasonable grounds to believe that the

suspect would be carrying heroin. Draper,

358 U.S. at 313.

As the Chief-Magistrate in the present

case rightly observed:

That which was verified by police in

Draper were seemingly innocent

details. The details were, however,

actions of a third party not easily

predicted unless one knows what one is

talking about. They were not details

relating to easily obtained facts and

conditions which existed at the time

of the tip. Cf. Gates, 462 U.S. at

245; 103 S.Ct. at 2335-2336.

R & R, at p. 12a.

24

II. The Sixth Circuit

Departure

a. The expansion of Gates.

In the decision below, the Sixth

Circuit has expanded the holding of Gates

in a dramatic way. The court below does

not contend that the police had

corroborated any "future actions of third

parties ordinarily not easily predicted."

Instead the Court simply finds this

requirement of Gates to be unnecessary and

substitutes its own test that

“corroboration of apparently innocent items

is sufficient to support the issuance of a

25

warrant when there are enough items and

they are particular."!?

The new Sixth Circuit standard

repudiates the law of Gates and Draper. It

eviscerates the importance of corroborating

predictions of future activity as a means

of determining whether anonymous informants

really know what they are talking about.

Moreover it is a dangerously

unworkable standard. When will there be

"enough items" and what makes them

"particular" enough? If a search may be

justified exclusively by "enough" innocent

information as long as it is "particular"

do we not as a society return to the

The panel added that "Cojther

information in the letters was inculpating

and non-public, such as the knowledge that

there were approximately 100 plants seized

in the earlier arrest." As stated earlier,

the difficulty with this assertion is that

nowhere in the record does anyone even

suggest that this information was “non-

public". The fact of the seizure and arrest

was of course matters of public record.

26

a

General Warrants and Writs of Assistance

that the Fourth Amendment was intended to

prevent?

The ramifications of the Sixth Circuit

standard are not insignificant. In the

Sixth Circuit at least, every home is now

subject to a search if an anonymous person

contacts the local police with a tip that

contains "enough items and they are

particular. "?}*

3The fact that this new standard is set

forth in an unpublished per curiam opinion

heightens the importance of Supreme Court

review without which the Sixth and other

Circuits would be free to establish their

own de facto standards which do not bear the

imprimatur of this Court's authority.

27

III. Conclusion

As the District Court in the Eastern

District of Tennessee correctly found

"[sJuspicion, speculation and innuendo are

piled on each other...."'* "The

government's argument merely laminates even

more speculation on top of the affiant's

Own conclusory allegations and

speculations."

The Sixth Circuit has now added one

additional layer of speculation and

innuendo.

The difficulty of this aaa mee

been eloquently described elsewhere. "Each

of these inferences standing alone may be

reasonable. But with each passing

inference, the last reached is less and

less likely to be true. Virtual certainty

Mop. at 46a.

Op. at 47a - 48a.

28

becomes probability, which merges into

possibility, which fades into chance."’®

This Court has previously determined

that in evaluating the statements of

anonymous informants it is important to

corroborate "future actions of third

parties ordinarily not easily predicted."

The Sixth Circuit has now repudiated this

holding, substituting instead a new

standard in which corroboration of innocent

activity is sufficient without regard to

future activity as long as there are

"enough items and they are particular."

No other circuit court of appeals has

taken this radical approach to search

warrants based on information from

anonymous sources. The petitioners

respectfully request that this Court grant

their petition for certiorari to determine

United States v. Weber, 923 F.2d 1338,

1345 (9th Cir. 1990).

29

i

Bot

——T ye eee eS

for itself whether Gates and Draper are to

be expanded in this fundamental and

important respect.

30

Respectfully submitted,

CHARLES W. B. FELS

Counsel of Record

KENNETH F. IRVINE, JR.

RITCHIE, FELS & DILLARD P.C.

606 W. Main Avenue

Post Office Box 1126

Knoxville, TN 37901-1126

(615) 637-0661

Counsel for Kevin K. Thomas

DOUGLAS A. TRANT

JUDITH O. WOODS

900 S. Gay St., Suite 1502

Knoxville, TN 37902

(615) 525-7980

Counsel for Barry D. Thomas

31

FOURTH AMENDMENT TO THE

UNITED STATES CONSTITUTION

AMENDMENT 4

Unreasonable searches and

seizures.-- The right of the people to be

secure in their persons, houses, papers,

and effects, against unreasonable searches

and seizures, shall not be violated, and no

warrants shall issue, but upon probable

cause, supported by oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be |

seized.

IN THE UNITED STATES COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

KEVIN KEITH THOMAS,

Defendant.

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

BARRY D. THOMAS,

Defendant.

NO.CR.3-92-001

ee ee ee ee

NO.CR.3-92-002

ee

REPORT AND RECOMMENDATION

These cases came before the

undersigned on March 5, 1992

with the motions to suppress

pending in both cases [Docs.

accordance with an agreement

counsel, oral arguments were

, in connection

which are

10]. In

reached by

entertained on

the question of whether or not there is

probable cause to support the issuance of

the search warrants in question. It was

agreed that should the Court find that

there is no probable cause to support the

issuance of the search warrants, then the

question of whether or not the search would

nonetheless be valid pursuant to United

States v. Leon, 468 U.S. 897, 104 S.Ct.

3405 (1984), would be addressed. In the

event it is determined that the

requirements of Leon have been met, then it

is agreed that the Court will take up the

issue raised in the supplemental motions to

suppress dealing with Franks v. Delaware,

438 U.S. 154, 98 S.Ct. 2674 (1978)

(statements in an affidavit that are

intentionally false or made with reckless

disregard for the truth must be stricken

and then whether the warrant issued on

probable cause must be determined by the

i -

affidavit with those statements excluded).

Thus, the question considered herein is the

purely legal question of whether or not

within the four corners of the affidavit

submitted in support of each of these

search warrants there is sufficient

probable cause to justify the issuance of

the warrants.

Defendants in these cases seek to

suppress evidence derived from the searches

of their respective residences located at

700 Adella Avenue, Sevierville, Tennessee,

and 1018 Beverly Hills Drive, Sevierville,

Tennessee. The affidavit in support of the

search warrant has attached to it as

Exhibit 2 and Exhibit 3 two anonymous

letters. The first letter was received on

October 30, 1989, by the Drug Enforcement

Administration (DEA) in Knoxville,

Tennessee. The letter was undated. On

January 23, 1990, the Knoxville DEA office

received a second anonymous letter. That

letter was also undated. The style of the

letter suggested that it might be from the

same person or persons who sent the first

letter but that has not been conclusively

proved. Based upon these letters, other

exhibits to the affidavit, and the

application and affidavit sworn to by

Gregory C. Monroe, a Special Agent with the

Tennessee Bureau of Investigation, a United

States Magistrate Judge of this District

issued search warrants for the premises

located at 1018 Beverly Hills Drive and at

700 Adella Avenue.

There is no dispute that the two

anonymous letters, standing alone, fail to

establish the requisite probable cause for

a search of the premises. "(T)he veracity

of persons supplying anonymous tips is by

hypothesis largely unknown, and

unknowable." Illinois v. Gates, 462 U.S.

213, 237 103 S.Ct. 2317, 2332 (1983). The

question before this Court at present is

whether or not the portions of the

affidavit which describe the results of the

police investigation triggered by the

letters, considered in conjunction with the

two letters, constitute probable cause for

the searches. See Id. at 237-238; 2332.

Therefore, my primary focus will

be on what, if anything, the results of the

police investigation added to the

information provided in the two anonymous

letters. "Even after Gates, corroboration

of a very few nonsuspicious and easily

predictable events should not suffice."

W.LaFave, Search and Seizure, § 3.3(f), at

687 (2d ed. 1987). Even if an affidavit

contains a whole range of details, it may

not be sufficient to corroborate an

anonymous tip or tips. Such detail will

have a bearing on judging the basis of the

informant's knowledge, but is irrelevant to

his or her truthfulness. An informant who

is an accomplished liar could undoubtedly

spin an elaborate lie, chocked full of

easily obtained details. See United States

v. Martin, 615 F.2d 318, 325 n.9 (5th Cir. {

1980).

In Gates, the anonymous letter

contained a range of details relating not

only to easily obtained facts and

conditions which existed at the time the

tip was given, but also relating "to future

actions of third parties ordinarily not

easily predicted." 462 U.S. at 245; 103

S.Ct. at 2335-2336.

The letter writer's

accurate information as

to the travel plans of

each of the Gateses was

of a character likely

obtained only from the

Gateses themselves, or

from someone familiar

with their not entirely

ordinary travel plans.

If the informant had

access to accurate

7 a

information of this

type, a magistrate

could properly conclude

that it was not

unlikely that he also

had access to reliable

information of the

Gateses alleged illegal

activities. ...

[P]robable cause does

not demand the

certainty we associate

with formal trials. It

is enough that there

was a fair probability

that the writer of the

anonymous letter had

obtained his entire

story from either the

Gateses or someone they

trusted. And

corroboration of major

portions of this

letter's predictions

provides just this

probability.

462 U.S. at 245-246, 103 S.Ct. at 2336

(footnote omitted--emphasis added). This

idea of the anonymous tip being

corroborated by means of police observation

of activity predicted in the tip is central

to the holding in Gates. Id.; 462 U.S. at

226, 103 S.Ct. at 2326.

As indicated above, the

truthfulness of the person or persons who

authored the two anonymous letters in the

instant case is “largely unknown and

unknowable". Gates, 462 U.S. at 237, 103

S.Ct. at 2332. Therefore, one must try and

decide if the anonymous information

provided was corroborated to the degree

that the probable cause standard was

satisfied.

In Gates, the Court rejected the

strict view that only corroboration of an

incriminating allegation should be

relevant. The Court noted that activity

which might otherwise seem innocent could

become suspicious in light of the anonymous

information provided. 462 U.S. at 243

Nn. be, 103 $.Ct. et 2535 nm. i3. But, the

seemingly innocent activity to which the

court was referring was activity the

anonymous informant had predicted and which

the police had observed. I say this

because the Court cites Draper v. United

States, 358 U.S. 307, 79 S.Ct. 329 (1959),

for this proposition and noted that “the

corroborating detail established in Draper,

was of entirely innocent activity. ...”

Gates, 462 U.S. at 243, n.13; 103 S.Ct. at

2335 n.13. The Court described Draper as

"the classic case on the value od

corroborative efforts of police officials.”

462 U.S. at 242; 103 S.Ct. at 2334. In

Draper, a paid informant told police that

the suspect had gone to Chicago the day

before by train; that he would return to

Denver one or two days later; that he would

be carrying three ounces of heroin; that he

would return during the morning hours on

the train; that the suspect had a certain

physical description; that he would be

wearing certain described clothing; that he

would be carrying a tan zipper bag; and

10a

that the suspect ‘iecisini "walked real fast."

358 U.S. at 309, 79 S.Ct. at 331.

The police surveilled the train

station and on the second day after

receiving the tip, the police observed a

suspect alight from the Chicago train at

Denver's Union Station. He met the exact

physical description given police by the

informant, he was wearing the precise

clothing described by the informant, he was

walking "fast" and he was carrying a tan

zipper bag. Id. The Court held that since

the police had verified every bit of the

informant's information, except that the

suspect would be carrying heroin, they had

reasonable grounds to believe that the

other detail--he would be carrying heroin--

would be true. 358 U.S. at 313; 79 S.Ct.

at 333. Thus, the Court held, the

arresting officers had probable cause to

arrest the suspect and the subsequent

lla

aie nenieeaeaesiae inane

search and seizure were lawful. 358 U.S.

at 314; 79 S.Ct. at 333.

That which was verified by police

in Draper were Seemingly innocent details.

The details were, however, actions of a

third party not easily predicted unless one

knows that one is talking about. They were

not details relating to easily obtained

facts and conditions which existed at the

time of the tip. Cf. Gates, 462 U.S. at

245; 103 S.Ct. 2335-2336.

The anonymous letters, read ina

non-technical and common sense manner,

allege the following materials items:

Letter No. 1

Kevin Thomas, 700 Adella

Drive [sic: Avenue],

Sevierville, Tennessee, has

or had on his premises:

three 1000 watt halide

lights with many HUGE

marijuana plants underneath

and several flourescents

[sic] over literally

HUNDREDS of small cuttings

ready to sell and

transplant!

12a

Kevin Thomas' brother,

Barry, and Barry's wife were

arrested “last spring” with

100 plants growing in a

bedroom.

Barry helped Kevin cultivate

and harvest a BUMPER outdoor

crop "this fall" from the

islands of Douglas Lake.

Barry and Kevin are "holding

now."

Barry is sure to "hang lamps

against as soon as he is

released from probation.

Kevin is about to harvest

his "Basement Bud" and laugh

all the way to the bank

AGAIN.

Letter No. 2

Barry and Angie are at it

again, this time in the

workshed at their residence

on Beverly Hills Drive, in

Sevierville.

This house is owned by Kevin

Thomas, Barry's brother, and

Kevin's address is 400

Adella Ave. Sevierville,

Tennessee.

Kevin is conspiring with his

brother and sister-in-law to

again cultivate marijuana.

13 a

10.

11.

12.

13.

14.

15.

16.

This cultivation began just

after Barry and Angie were

released from unsupervised

probation for a November

1988 simple possession

conviction resulting from a

May 1988 arrest for

cultivation (newspaper

clipping attached).

Barry and Angie received

record expungement after

successful completion of

their probation period.

During their probationary

period of 11 months 29 days

in the summer of 1989 Barry

and Angie cultivated

marijuana along with Kevin

Thomas on the islands of

Douglas Lake.

Kevin also grows pot in his

basement.

Barry and Angie obtained the

cuttings from the marijuana

growing in Kevin's basement

to maintain their continuing

criminal enterprise.

The workshed at the Beverly

Hills address is not

attached to Barry and

Angie's home and is outside

the curtilage.

If someone approached the

workshed they might well

smell marijuana or hear the

14a

17.

18.

19.

20.

21.

22.

23.

hum of high intensity

lights.

Barry and Angie plan to

install an air conditioner

and you will see that it

runs even when the weather

is freezing.

An air turbine on the roof

of the workshed turns at

high speeds even in the

calmest of winds and

freezing temperatures.

Black plastic covers the

windows of the workshed to

prevent bright lights form

leaking through.

The electricity consumption

at the Beverly Hills address

is much higher than normal

for the area.

The electricity consumption

at the Beverly Hills address

is much higher than last

year and this is

attributable to grow lights

being used.

Kevin shut his marijuana

growing operation down last

year when Barry and Angie

were arrested.

Aerial surveillance using

head detectors would reveal

high levels of heat loss

from the workshed.

15a

these

29

24.

25.

26.

yy

28.

29.

What

items

Barry and Angie dispose of

the waste from their

marijuana operation at

landfills or commercial

dumpsters and are too smart

to put it in their own

trash.

Barry and Angie use a

certain hydroponic medium,

Pro-Mix BY soilless mix,

purchased at Knox Seed

Supply, packaged in 80 lb

bales and if you watch, you

will see them carry them

from their car to the

workshed.

Ground surveillance would

show Kevin entering the

workshed ("greenhouse") at

the Beverly Hills address.

Barry and Angie own great

danes.

Barry and Angie's first

harvest of marijuana is

expected no sooner than the

middle of February and no

later that late March.

Barry and Angie expect to

harvest every three months

after that.

was corroborated regarding

of information?

l6a

Item 2 was partially

corroborated. On May 15, 1988, Barry D.

Thomas and Angela Thomas were arrested for

cultivating and growing marijuana according

to Knoxville Police Department records.

About 100 marijuana plants were seized

according to police records. The fact of

the arrests was in the newspaper. The fact

that about 100 marijuana plants were seized

was not. The “last spring" reference in

the first letter is unexplained.

Records from the Sevier Electric

Company corroborated items 1, 7, and 8,

partially, i.e., the utility service at 700

Adella Drive (sic: Avenue) and Beverly

Hills, Lot 22 was in the name of Kevin

Thomas and Angie Thomas, respectively.

Cars seen by police on the Beverly Hills

Drive property were registered to Barry and

Angela Thomas.

17 a

"3

“

. a

Item 8 is corroborated because

property records show that Kevin Thomas and

his wife own the property at Lot 22, .

Beverly Hills Subdivision, at 1018 Beverly

Hills Drive.

Items 1 and 8 are-partially

corroborated in that property records show

that Kevin Thomas and his wife own the

property at 700 Adella Avenue. Sevier

County Electric System records show that-

Kevin Thomas is the name on the account at

700 Adella Avenue. A car registered to him

was seen on the property during police

surveillance.

Item 10 is corroborated to the

extent that police records showed that

Barry and Angie were arrested in May 1988

for cultivating and growing marijuana.

But, that information was public knowledge

because of the press coverage.

18a

Item 15 is partially

corroborated. Exhibit 1C to the affidavit

shows a picture of a two story outbuilding

"located on the curtilage” of the residence

at 1018 Beverly Hills Drive.

Item 18 is partially

corroborated. The affiant saw an air

turbine on the outbuilding at 1018 Beverly

Hills Drive. Affiant stated that he saw

the turbine spinning rapidly on February 3,

1990 “regardless of wind conditions." He

says there was very little to no wind that

day. Nothing is said, however, about the

temperature.

Item 27 is corroborated. The

affiant saw to Great Danes on the property

at 1018 Beverly Hills Drive.

On March 5, 1990, a named law

enforcement officer (not the affiant) used

a hand-held thermal imaging device to

surveil [sic] the property at 1018 Beverly

19 a

Hills Drive. The affiant stated: "The

outbuilding located on the curtilage of the

residence at 1018 Beverly Hills Drive had a

slightly brighter white image than the

residence located at 1018 Beverly Hills

Drive. Two other shed-type outbuildings

located in that neighborhood were dark and

produced no white image whatsoever in the

screen of the thermal imaging device."

This tends to corroborate items 7 and 23.

There is no corroboration

ai, 46, @4, 25, 26, 28, ené 29.

The corroborated items are: (1)

Barry and Angie Thomas had been arrested in

Knoxville for cultivating marijuana, (2)

about 100 marijuana plants were seized from

their residence at that time, (3) Barry and

Angie Thomas reside at 1018 Beverly Hills

Drive and probably have done so since

20 a

November, 1989 based on utility records,

(4) Kevin Thomas and his wife own the

property at 1018 Beverly Hills Drive and

have done so since 1987, (5) Kevin Thomas

and his wife own the property at 700 Adella

Ave., (6) there is a two-story outbuilding

on the property at 1018 Beverly Hills

Drive, (7) the air turbine on the roof of

the outbuilding at 1018 Beverly Hills Drive

sometimes spins even in light wind

conditions, (8) Mr. and Mrs. Barry Thomas

own two Great Danes, (9) Kevin Thomas has

been a utility customer at 700 Adella

Avenue since 1987; (10) there is some kind

of familial, social and/or landlord/tenant

connection between Kevin Thomas and Barry

and Angie Thomas.

All of these corroborating items

fall into the category of easily obtainable

facts which were available at the time the

letters were apparently written. The only

2la

ee ee

exception might be the assertion by the

informant that 100 plants were found in the

Barry Thomas' residence when Barry and

Angie were arrested. But, even that

information has nothing to do with the

future actions of anyone. None of the

corroborated information does. As

indicated above, the corroboration of

actions which have been predicted by an

informant were key elements in the probable

cause findings in Draper and Gates.

The writer of the second

anonymous letter in the instant case

invited the police to corroborate predicted

activities of Kevin, Barry, and Angie

Thomas. See Items 16, 17, a3. 26, 2ox 22;

28, 29. The affidavit makes no mention of

any of this predicted behavior having been

observed by the police. Thus, the

affidavit is devoid of corroboration of

"future actions of third parties ordinarily

22a

not easily predicted" which the informant

really invited the police to corroborate.

See Gates, 462 U.S. at 245, 103 S.Ct. at

2335-2336. I find this to be a crucial

omission. Visual surveillance of both

premises failed to reveal suspicious

activity.

Finally, one_must 100k at which

the police were able to find out

independently of the tip and in addition to

the rather innocuous details from the

letters which they were able to

corroborate. After all, the question of

probable cause is to be judged under the

totality of the circumstances.

The task of the issuing

magistrate is simply to

make a practical,

commonsense decision

whether, given all the

circumstances set forth

in the affidavit before

him, including the

"veracity" and "basis

of knowledge" of

persons supplying

hearsay information,

23 a

there is a fair

probability that

contraband or evidence

of a crime will be

found in a particular

place. And the duty of

a reviewing court is

simply to ensure that

the magistrate had a

"substantial basis for

- « « conclud[ing] that

probable cause existed.

Gates. 462 U.S. at 238-239, 103 S.Ct. at

2332 (citation omitted). And so, now I

turn to the circumstances set forth in the

affidavit which I have not previously

discussed.

Perhaps the strongest piece of

evidence is the March 5, 1990,

surreptitious monitoring by a police

officer of the workshed at the Beverly

Hills Drive premises. This was done with a

hand-held thermal imaging device. The

affidavit states, in relevant part, as

follows:

On March 5, 1990, at

approximately 11:30

24a

p.m., Special Agent

Poag conducted

surveillance of the

residence located at

1018 Beverly Hills

Drive and the

outbuilding contained

on the curtilage of

that residence. Again,

Special Agent Poag

utilized the hand-held

thermal imaging device.

The outbuilding located

on the curtilage of the

residence at 1018

Beverly Hills Drive had

a Slightly brighter

white image than the

residence located at

1018 Beverly Hills

Drive and surrounding

residences. Two other

shed-type outbuildings

located in that

neighborhood were dark

and produced no white

image whatsoever in the

screen of the thermal

imaging device.

Exhibit 1C to the search warrant

is a photograph of the outbuilding. There

are no power lines going into that

building.

The magistrate may have assumed

the lines were underground. There is an

25a

electrical weather head on the residence

evidencing above ground power to the

residence. How likely is it that above

ground power would be put into the

residence but below ground power put into a

shed? In any event, electrical power would

have been necessary to power the grow

lights mentioned by the informant.

In the paragraph just preceding

the one set out above, the affiant states

that the thermal imaging device showed a

"brighter white image" when directed to the

detached garage at 700 Adella Avenue than

when directed at the-residence there and

other nearby residences. This reading was

taken about 15 minutes before the reading

on the outbuilding at 1018 Beverly Hills

Drive. The reading taken on the detached

garage at 700 Adella Avenue contradicts the

informant's assertion that "Kevin also

"

grows pot in his basement.

26a

Also, the informant advised in

the second letter that "electricity

consumption is much higher than normal for

the area, and much higher than last year at

the same location . . . attributable only

to the use of grow lights.’ From the

context of the letter, the writer is

speaking of the Beverly Hills Drive

premises. The affiant never tried to

establish what a “normal” consumption of

electricity for the area would be.

Attached to the affidavit were utility

records based on readings taken at the 700

Adella Avenue premises and the Beverly

Hills Drive premises on January 2, 1990,

and March 1, 1990. Exhibit 4 to the

Affidavit.

If "at the same location" means

1018 Beverly Hills Drive, and if we assume

the second anonymous letter was written in

January, 1990 (affiant states that it was

27 a

received by law enforcement officers on

January 23, 1990) and if we assume "last

year” means January 1989, the exhibit

contradicts the informant. Meter usage in

January 1989 was 3130 and it was 2560 in

January 1990. Figures for 1988 were not

supplied to the magistrate.

The affiant indicates that the

electricity use for the months of August

through November for each house was higher

than for the January 1990 reading covering

the month of December 1989. Affiant states

in relevant part:

The bill for January,

1990, covered a period

of thirty-three days,

which would have been

the month of December,

1989 was an extremely

cold month with record

breaking low

temperatures set in

several areas in the

Southeast including

East Tennessee. As

demonstrated on the

printouts attached as

Exhibit 4, the electric

utilities for August,

28 a

September, October and

November 1989 for both

residences were higher

than for the January

1990 reading covering

the month of December

1989. This is

consistent with the

growing of marijuana

indoors using

electricity during the

months of July, August,

September, October and

November.

The final sentence is conclusory

and is a “bare bones” assertion condemned

by Gates. 462 U.S. at 239, 103 S.Ct. at

2333. According to the affiant,

electricity usage is determined by looking

at the next month's reading (". . . for the

January 1990 reading covering the month of

December 1989.") Using this approach,

electrical consumption at the two

residences for August 1989 through February

1990 was as follows:

700 Adella Av. 1018 Beverly Hills

Aug 2103 KWH 3520 KWH

29 a

Sep 4077 KWH 4010 KWH

Oct 2698 KWH 3080 KWH

Nov 1572 KWH 100 KWH

Dec 1429 KWh 2560 KWH

Jan 1792 KWH 2240 KWH

Feb 3340 KWH 1820 KWH

If it is assumed that December

was an extremely cold month with record

breaking temperatures, the December 1989

usage at 700 Adella Avenue was about like

November's. At 1018 Beverly Hills,

December's usage shot up 2460 KWH over

November's. Fluctuations in electricity

usage may be caused by several things,

e.g., variable East Tennessee weather,

residents on vacation for all or part of

the month, utilization of oil heat in

winter and electric air conditioner in

summer, use of natural gas or propane or

kerosene heaters during winter and electric

30a

air conditioners in the summer. The

affiant's conclusion drawn from Exhibit 4

that the electrical consumption at each

residence was consistent with growing

marijuana does not follow reasonably or

logically from the facts asserted. A more

helpful comparison would have been to

electricity consumption at residence near

to and comparabie to the ones in question,

I also mote that the affiant stated

incorrectly the "last reading date on both

residences was January 2, 1990." The

"reading date” on two of the three

documents in Exhibit 4 is March l1, 1990.

The affidavit also states that Exhibit 4

consists of copies of printouts from Sevier

Electric Company for the two residences

between January 1989 and January 1990.

That is incorrect. The readings span

January 1989 to March 1990.

3la

The affiant states that two

packages weighing forty pounds each were

sent from Superior Growers Supply, Inc., to

"Richard Spence" on June 21, 1989, at 1018

Beverly Hills, Sevierville, Tennessee.

Superior-Growers Supply, Inc., advertises

in High Times magazine for the sale of

halide lamps and other devices used to grow

indoor plants. See Exhibit 7. All of the

information in the affidavit and exhibits

thereto reflect that Barry and Angie Thomas

moved to 1018 Beverly Hills Drive in

November 1989. Therefore, the shipment of

the two packages to "Richard Spence" in

June 1989 is stale information having

little to do, if anything, with any alleged

criminal activity on the part of Kevin,

Barry, and/or Angie Thomas. Kevin Thomas

owned the property but that does not

indicate that he had any connection with

the shipment. There must be probable cause

32a

| eae

to believe that property constituting

evidence of criminal activity, contraband,

the fruits of a crime, things otherwise

criminally possessed or property which is

designed or used in committing an offense

is presently on the premises to be

searched. See Rule 41(b), Fed.R.Cr.P.; see

generally, W. LaFave, Search and Seizure §

3.7(a) (2d ed. 1987). “Richard Spence" may

have rented the premises from Mr. and Mrs.

Kevin Thomas, but that hardly sheds light

on what was happening on the premises when

the search warrants issued.

An air turbine that tends to spin

rapidly at times regardless of wind

conditions and from which the police

thought they may have seen light emanating

at 7:00 or 8:00 P.M. on a winter evening

proves little. When it was seen spinning

at about mid-day on February 3, 1990, in

light wind conditions, the reason could

33 a

have been solar heating of the interior of

the shed and consequent spinning of the

turbine as the warmer air escaped to the

outdoors. It is no more probable that some

other heat source was casing the spinning.

The absence of power lines to the shed

raises some doubt about whether not the

"light" emanating from the turbine might

have been a reflection. Exhibit 1C to the

warrant for 1018 Beverly Hills Drive seems

to indicate that it is a metallic turbine

ventilator.

The fact that the writer states

in the first letter that he is a

“disgruntled customer who has seen it all

first hand" is entitled to consideration

regarding the basis of the affiant's

knowledge. "Basis of knowledge" and

veracity of the informant remain "highly

relevant" considerations. Gates, 462 U.S.

at 230, 103 S.Ct. at 2328. But, the

34a

statement says nothing about the

informant's veracity. It certainly is not

against his penal interest since the letter

was not signed.

Without reading the affidavit in

a hypertechnical way, and giving

substantial deference to the conclusion

reached by the issuing magistrate judge,

the undersigned concludes that the

affidavit in support of these two search

warrants does not demonstrate that there

was a fair probability that contraband or

evidence of a crime would be found at 700

Adella Avenue or 1018 Beverly Hills Drive

on March 8, 1990, when these two search

warrants issued.

Accordingly, this matter should

be set for further hearing before the

undersigned regarding whether or not United

States v. Leon, 468 U.S. 897, 104 S.Ct.

3405 (1984) would allow the fruits of the

35a

searches to be introduced into evidence

despite the lack of probable cause to

support the search warrants.’

It is therefore RECOMMENDED that

the defendants' motion to suppress be

sustained to the extent that the probable

cause did not exist to support the issuance

of the search warrants in question, and it

is RECOMMENDED that the matter be re-

referred to the undersigned for further

proceedings consistent with this report and

recommendation.”

+ The Supplemental Motions to

Suppress raise Franks v. Delaware, 438 U.S.

174 98 S.Ct. 2674 (1978), issues and need

only be reached if the searches should be

sustained pursuant to United States v.

Leon.

* Any objections to this Report and

Recommendation must be served and filed

within ten (10) days after service of a

copy of this recommended disposition on the

objecting party. Failure to file

objections within the time specified waives

the right to appeal the District Court's

order. Thomas v. Arn, 474 U.S. 1 40, 106

S.Ct. 466 (1985).

36a

Respectfully submitted,

Robert P. Murrian

UNITED STATES

MAGISTRATE JUDGE

37 a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

UNITED STATES OF AMERICA,

Plaintiff,

Vv. NO.CR-3-92-01

KEVIN KEITH THOMAS,

ee

Defendant.

and

UNITED STATES OF AMERICA,

Plaintiff,

NO.CR-3-92-02

BARRY D. THOMAS,

ee ee ee ee ee ee”

Defendant.

MEMORANDUM OPINION

These are two separate criminal

actions that have been consolidated for

certain pretrial purposes. The defendants

are brothers charged with manufacturing a

38 a

controlled substance in violation of 21

U.S.C. § 841(a)(1). [Doc. 1 in both

cases.] Motions to suppress certain

evidence obtained as a result of searches

conducted on their residences have ben

filed by the defendants [docs. 10, 10A in

both cases] and on March 16, 1992,

Magistrate Judge Robert P. Murrian entered

a report and recommendation [doc. 30 in CR-

3-92-01 and doc. 29 in CR-3-92-02] in which

he concluded that affidavit in support of

the warrants issued in these cases failed

to establish probable cause and thus

ecommended that the evidence obtained as

a result of the searches conducted pursuant

to these warrants be suppressed. On

March 26, 1992, the United States filed

appeals from Magistrate Judge Murrian's

report and recommendation [doc. 31 in CR-3-

92-01 and doc. 30 in CR-3-92-02] and

subsequently filed a memorandum in support

39 a

of its appeals [doc. 32 in CR-3-92-01 and

doc. 31 in CR-3-92-02]. The Court will not

extensively recite the facts regarding the

warrants in these cases in light of the

thorough summary of the facts provided by

Magistrate Judge Murrian's excellent report

and recommendation in these cases.

At the time of the searches,

these defendants maintained separate

residences in Sevierville, Tennessee.

Kevin Thomas lived at 700 Adella Avenue and

his brother, Barry, lived at 1018 Beverly

Hills Drive. The investigation into their

activities was initiated as a result of two

undated anonymous letters sent to the Drug

Enforcement Administration (DEA). One was

received by the DEA on October 30, 1989,

and the other was received on January 23,

1990. One of the letters states that it

was "a tip from a disgruntled customer."

The letters described the alleged

40a

activities of the defendants in growing

marijuana in the basement of Kevin Thomas’

house and in a shed on the property of

Barry Thomas. Whether the letters were

written by one person or by two different

people is pure speculation.

Gregory C. Monroe, a Special

Agent of the Tennessee Bureau of

Investigation, and other law enforcement

officers undertook an investigation of the

Thomas brothers in an attempt to

corroborate the information in the letters

and otherwise to attempt to obtain

sufficient evidence to apply for a search

warrant. As a part of this effort, as

stated in Mr. Monroe's affidavit in support

of the warrant application, on March 5,

1990, he and another officer "conducted

surveillance from a public area of the

4la

residence located at 70 Adella Drive, "?

using a hand-held thermal imaging device,

and found that a detached garage at this

location appeared to produce a brighter

image than the residence at 700 Adella

Drive or the other residences located

nearby. The same device was used to

ictammine that the shed on the property at

1018 Beverly Hills Drive also produced a

brighter image than the residence at that

address or other residences nearby.

’ The Court is not sure what this

phrase means; however, the Court notes that

law enforcement officials are not privileged

to trespass upon private property and no

part of a person's property is "“public."

See Sneed v. State, 423 S.wW.2a 857, 860

(Tenn. 1967); Hughes v. State, 141 S.W.2d

477, 480 (Tenn. 1940); Chadwick v. State,

429 S.W.2d 135, 139 (Tenn.Crim.App. 1968).

If these officers trespassed upon the

defendant's property, the evidence obtained

as a result would be excludable. See

Silverman v. United States, 81 S.Ct. 679 682

(1961). The open fields doctrine would have

no application in this case.

42a

In the course of surveillance of

the defendant's residences, the agents

observed a number of innocent activities,

including light emanating from a ventilator

on top of the shed at the Beverly Hills

address, while the bottom story was dark,

“which suggests that the top floor and

bottom floor are completely separate, and

the top floor has lights inside," vehicles

belonging to the defendants, the defendants

or their wives visiting each other, the

movement of a charcoal grill from the

Beverly Hills Drive shed to the house and

back within a fifteen minute period, about

which "({i)t was Agent Persinger's opinion

that the female did not have time to use

the grill to cook any food on it,” the

rapid spinning of a ventilator fan on the

roof of the shed at the Beverly Hills Drive

address on a day when little wind was

blowing, and a person carrying garbage bags

43a

"containing an unknown material" from the

to

house to the shed at the Beverly Hills

address. Mr. Monroe also stated in his

affidavit that from his experience in law

enforcement and his reading of books and

magazine articles, such as those in High

Times, a magazine dedicated to articles

about marijuana Cultivation, he was

familiar with the techniques used by in-

door marijuana growers. In addition,

exhibits were attached to the warrant

application. These exhibits included

electric bills for the two addresses, deeds

showing the ownership of the property, and

The government makes two basis

contentions in this appeal: it argues that

Magistrate Judge Murrian used an

inappropriate standard of review and that

he applied an inappropriate analysis in

assessing the factual allegations contained

44a

in the affidavit filed in support of the

warrant application. More specifically,

the government contends that Magistrate

Judge Murrian failed to assess the

"4 of the evidence in

"laminated whole

support of the warrant in considering

whether a substantial basis existed for the

issuing magistrate's determination of the

existence of probable cause and failed to

give sufficient deference to the issuing

magistrate's decision. It also argues that

Magistrate Detain thankies analyzed the

warrant in a hyper-technical manner rather

than a common sense fashion.

The Court has read the

application for the warrants, together with

all the exhibits, and has considered them

* The Court does not understand the

rather poetic phrase "laminated whole" and

prefers the standard established by the

Supreme Court, the totality of the

circumstances.

45a

as a whole and taking them together, the

Court is of the opinion that probable cause

simply does not exist. No substantial

evidence supports the issuing magistrate's

finding of probable cause. The Court is

disturbed that warrants were ever issued on

the basis of the evidence submitted to the

issuing magistrate. Courts do not sit to

rubber stamp the actions of law enforcement

officers.

Suspicion, speculation, and

innuendo are piled on each other in the

affidavit but the totality of the

circumstances contained in it would not

lead a person of reasonable prudence to

believe at the time of the warrant

applications that evidence of a crime would

be present in the residences of these

defendants. The Court characterizes the

affidavit in this case as "broad,

speculative and conclusory," United States

46a

v. Macklin, 902 F.2d 1320, 1326 (8th Cir.

1990). The Court does not find that

Magistrate Judge Murrian engaged in a

piecemeal or hypertechnical analysis of the

affidavit and rather his method of analysis

is not substantially different from that of

the Sixth Circuit in United States v.

$67,220.00 in United States Currency, No.

91-5645 (6th Cir., February 28, 1992).

Simply put, too much speculation,

particularly about the defendants’

activities, much of which that was observed

by the affiant or other agents was entirely

innocent, is required to support the

finding of probable cause. Magistrate

Judge Murrian correctly noted the

speculative and conclusory nature of this

affidavit. The affidavit contains a number

of loose ends, such as inadequate and

l inconclusive comparisons of electricity

usage at these houses. The government's

‘jones

47a

argument merely laminates even more

speculation on top of the affiant's own

conclusory allegations and speculations.

Moreover, one of the anonymous letters is

from an allegedly "disgruntled" customer,

which reveals a bias, grudge, or prejudice

that could have motivated the tip.

Warrants are not issued upon mere

suspicion, which is the best that can be

said of the totality of the circumstances

found in the affidavit and Supporting

exhibits.

"Although the Court

readily concedes that

probable cause is not a

game of certainties, it

resists any effective

characterization as a

game of speculation.

Only upon such

speculation, however,

can the warrant in

question ... be said to

create a fair =

probability that

[evidence] could be

found on the

defendant['s] property.

The affidavit consists

-- Of uncorroborated

48a

accounts of events ...

and of an incomplete

trail of evidence that

can only speculatively

be said to support a

finding of probable

COUGO «ee ec”

United States v. One Parcel of Property at

18 Perkins Road, 774 F.Supp. 699, 704 (D.

Conn. 1991). The Court does not think that

this is even a close case. No probability

of criminal activity is sufficiently

demonstrated.

Examining the affidavit with

""factual and practical considerations of

everyday life on which reasonable and

prudent men, not legal technicians, act,'"

Massachusetts v. Upton, 104 S.Ct. 1085,

2085 (1984), without divorcing the facts

alleged in the affidavit from each other,

the Court can only conclude that probable

cause does not exist and no warrant should

have been issued. While a preference

49a

exists for searches conducted upon the

authority of a warrant, the Fourth

Amendment does not permit searches in these

circumstances, with or without warrants, on

less than probable cause.°®

° As Justice Grafton Green of the

Tennessee Supreme Court observed in Cravens

v. State, 256 S.W. 431, 432 (Tenn. 1923),

"(t]he history of our

ancestors for 300 years

has demonstrated that

police officers cannot

be permitted to ransack

at will the properties

of the people.

Intolerable conditions

have always followed

such practices. A

revolution in England

and the revolution of

the American colonies

are said by high

authorities to have

been largely influenced

by promiscuous seizures

and searches of the

houses and effects of

the people -- efforts

by the constituted

authorities to procure

evidence of the

violation of

regulations deemed wise

by those in power, but

unpopular with many,

(continued... )

50a

Accordingly, the Court OVERRULES

the objections of the United States [doc.

31 in CR-3-92-01 and doc. 30 in CR-3-92-02]

to the report and recommendation of

Magistrate Judge Robert P. Murrian [doc. 30

in CR-3-92-02 and doc. 29 in CR-3-92-02]

and ADOPTS this report and recommendation

as a part of this Court's opinion. This

case is REMANDED to Magistrate Judge

Murrian for further proceedings consistent

with his report and recommendation.

ENTER:

LEON JORDAN

United States District Judge

; °(...continued)

and constantly

transgressed.”

5la

j

:

#

4

3

Nos. 92-6207/6208

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellant, JON APPEAL

)FROM THE

Vv. JUNITED STATES

)DISTRICT

)COURT FOR THE

KEVIN KEITH THOMAS (92-6207), )EASTERN

)DISTRICT OF

) TENNESSEE

BARRY D. THOMAS (92-6208), )

)

Defendants-Appellees. )

BEFORE: RYAN and BOGGS, Circuit Judges;

and ROSEN, District Judge.°®

PER CURIAM: The government, in an

interlocutory appeal, seeks to have

evidence seized during the execution of two

search warrants for the residences of Kevin

®° The Honorable Gerald E. Rosen, United

States District Judge for the Eastern

District of Michigan, sitting by

designation.

52a

Keith Thomas and Barry D. Thomas admitted

in the criminal proceedings against them.

The district court held both that there was

insufficient probable cause in the search

warrant affidavit and that the- government

could not avail itself of the good faith

exception to the exclusionary rule. For

the reasons given below, we reverse.

I

On March 8, 1990, two search

warrants were issued, one for 700 Adella

Drive’ and one for 1018 Beverly Hills

Drive. The warrants were executed that day

and returned on March 9.

On January 6, 1992, Kevin Thomas

was charged in federal court in a three-

count information: count I was for

manufacturing marijuana in March 1990, in

”? Defense counsel points out that the

Kevin Thomas residence was at 700 Adella

Avenue.

53 a

7

4

4

¢

violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B). Count II charged that any

and all interest Kevin Thomas had in real

property at 700 Adella Drive was forfeited

to the government by virtue of the

marijuana manufacturing alleged in Count I.

Count III charged that Kevin Thomas's

interest in the real property at 1018

Beverly Hills Drive was also forfeited to

the government by virtue of the marijuana

manufacturing alleged in Count I. Also on

January 6, Barry Thomas was charged in a

one-count information with manufacturing

marijuana in March 1990, in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(B).

On February 10, 1992, both

Thomases filed motions to suppress the

evidence seized from the residences. After

a hearing on the motion to suppress, a

United States magistrate judge recommended

that the evidence be suppressed because

54a

there was insufficient probable cause to

support the issuance of the warrants.

Overruling government objections to the

report, the district judge adopted the

magistrate judge's report and

recommendation. He then referred the

matter back to the magistrate judge to

determine whether the evidence was

admissible under the good faith exception

to the exclusionary rule, United States v.

Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984).

The magistrate concluded that the

government had failed to show objective

good faith. Thus, he recommended that the

evidence be suppressed. Once again the

government objected, and once again the

district judge adopted the recommendation.

The government appealed.

II

The search warrant was based on

the following information. On October 30,

55a

1989, an anonymous letter was sent to the

Knoxville, Tennessee office of the Drug

Enforcement Agency (DEA).® The text of the

letter stated:

ABC News just featured

a 46-state bust of

indoor marijuana

growers (mentioning a

check of utility

bills); "48 Hours”

recently featured the

use of aerial infra-red

Surveillance in

arresting an indoor

grower.

Here's a tip from a

disgruntled customer

who has seen it all

first-hand” three 1000

watt halide lights with

- many HUGE marijuana

plants underneath and

several flourescents

(sic] over literally

HUNDREDS of small

cuttings ready to sell

and transplant! Anyone

care to see for

-yourself?

Kevin Thomas

700 Adella Av.

Sevierville, [sic] TN

® The letter was also copied by "cc” to

other law enforcement agencies.

56a

His brother Barry, who

with his wife was

arrested in Knoxville

last spring with 100

plants growing in a

bedroom, helped Kevin

cultivate and harvest a

BUMPER outdoor crop

this fall from the

islands of Douglas

Lake; they are both

holding now, and Barry

is sure to hang lamps

again as soon as he's

released from

probation.

Kevin is about to

harvest his "Basement

Bud" and laugh all the

way to the bank AGAIN.

He thinks he lives in

Mayberry RFD: "What

are they gonna

do...send Barney out

here with a bullet?"

On January 23, 1990, a second

undated anonymous letter was received in

the DEA office. That letter stated:

Barry and Angie are at

it again, this time in

the workshed at their

residence on Beverly

Hills Dr. in

Sevierville; this house a

57 a

is owned by Barry's

brother

Kevin Thomas

400 Adella Av.

Sevierville, TN’

Kevin is conspiring

with his brother and

sister-in-law to again

cultivate marijuana,

just after Barry and

Angie were released

from unsupervised

probation for a

November 1988 simple

possession conviction

resulting from a May

1988 arrest for

cultivation (see

enclosed newspaper

clippings )---the pair

even received record

expungement after the

successful completion

of their probation

period (11 months 29

days), during which

time (the summer of

1989) they boldly

cultivated marijuana on

the islands of Douglas

Lake with kevin Thomas!

Kevin also grows pot in the

basement, from which

Barry and Angie

obtained the cuttings

” 700 Adella Av., the address in the

first letter, was correct.

58 a

to maintain their

continuing criminal

enterprise. Since

Kevin owns the property

and they succeeded in

bringing in a record

harvest last summer---

despite the fact they

were caught red-handed

in Knoxville--~-Barry

and Angie feel they can

break the law with

impunity.

These criminals’

bravado will suffice to

do them in should this

tip prompt you

gentlemen to initiate

an investigation, since

their deluded egomania

ignores such facts as:

the workshed is

unattached to their

home, placing it

outside the curtiledge

of the residence--

permission from their

neighbor to approach

the same might well

result in the detection

of the pungent of

flowering (an officer

with experience and/or

a trained canine), or

hear the hum of high

intensity discharge

lamp ballasts in

operation (tax

assessors need no

59a

permission to

tresspass) [sic];

they have plans to

install an air

conditioner, which

would be in operation

during freezing outside

temperatures;

there is an air turbine

installed upon the

workshed roof to

evacuate heat and

moisture, turning at

high speeds even in the

calmest of winds and in

freezing temperatures;

black plastic Clearly

covers the window to

prevent the bright

lights from leaking

through;

the electricity

consumption is much

higher than normal for

the area, and much

higher than last year

at the same location

(Kevin shut down this

operation site

immediately upon Barry

and Angie being

arrested), attributable

only to the use of grow

lights;

infra-red heat

detection aerial

Surveillance will show

60a

ee

high levels of heat

loss from a supposedly

unoccupied building,

which can only result

from hot grow lights

and transpiration of

growing plants;

after transplanting and

harvesting, they must

dispose of waste

materials «unmarketable

stems and root

systems)--while they

are wise enough not to

put these materials out

for garbage pickup,

they don't think they

are "hot" enough to be

followed while

transporting the same

and depositing it in a

landfill or, more

likely, in a commercial

dumpster;

their hydroponic medium

of choice is Pro-Mix BX

soilless [sic] mix,

purchased at Knox Seed

Supply in Knoxville,

packaged in black 80

lb. bales---these are

large containers which

must be carried in

plain sight from their

auto, across their

yard, and into their

workshed for use;

ground surveillance

would show Kevin also

entering the

61 a

"greenhouse," which

should not only result

in another conviction

but also in another

warrant to search his

primary residence ar; 1

charge his wife for

their basement garden

forfieture (sic) of

both homes necessari ly

foll Ows.

Surely you have

additional methods to

collect evidence to

show probable cause for

a search warrant, and

Just as surely you know

how best to compi le the

Same to make it stand

up in court so that

these criminals ciyvi

liberties are not

, ’ { + -

nfringed upon in the

]

i

Their first harvest

5LLTiICe Barry, Angie A }

tneir Great Danes moved

im 18 expected no

sooner than the middle

Of February and no

. rr ~ ra SF mm + bh -

every nree INTNS

~ £ + _ +h ~ +

artver ~-4ial

ee

2a ANTING

The

following information was

either corroborated by the police or

deve loped

independently.

1 )

The Adella property had been

transferred to Kevin and Amy

Thomas on September 23,

1987. Electric company

records showed the service

for the Adella home was in

the name of Kevin Thomas.

The telephone directory

listed Kevin Thomas at 700

Adella.

The Beverly Hills property

wis transferred in 1983 to

Kevin Kei*t® ihomas and Amy

Sue Thomas. The electric

c+

company showed service a

that address in the. name of

Angie Thomas as of November

27 1989. Prior to that

,

63 a

“~

date, Kevin

electric

address.

The lact

obtained

affidavit

Ser

ric

and

the Ai: rust,

October

were r irre

“Nv > ]

Jali AaLly i

. } }

covered th

Ler emr or

ennaccasa

ic Ee re hk

~ £ Treran +

=5=

-_ ~ aT ee

Anan + VYnr

latiman ;

~*2# Qi lied :

-

4

—

92a

2

=) 8 4

[afk

rec

cS

wer |

AQa

3

aet-'

LO

™ S-

Thomas had

Vic

bi

at

The

Sep

2)

]

‘

Y

‘

at that

lS were

ached to the

Showed that

emoer

~~ ~~ - ~ *

agi so Al i ]

‘- }. A€

AA 4-4

7 - +} - >

Ad i ) -}

Ac +r

> 2

aw + rl

J Al

Xj IW

e 4

=, —~ ££ +

ra) + 2

= ee oe ae |

-~+ 4 = ~

>

i a = 2 eee .

that such a pattern was

consistent with an indoor

growing operation. The

electrical usage did not

show reasonable seasonal

variations. Furthermore,

usage was abnormally high.

For example, for several

months at the Beverly Hills

property the usage was

consistently over 3,000

kilowatt hours per month.

4) Surveillance of the Beverly

Hills property revealed a

two-story beige outbuilding

with a brown roof. On top

of the roof was a rotating

ventilator shaft that

appeared to let warm air

escape from the building.

The officer said that it was

65a

rotating even in still air,

and his inference was that

the building was used to

grow marijuana. There was

also a dog pen with two

Great Danes on the property.

Two vehicles, one registered

to Barry D. Thomas and one

registered to Angela Thomas,

were parked in front of the

house. Officers also

noticed a white female drive

the vehicle registered to

Angela thomas, and later

noticed the same vehicle

parked at the Adella

property.

Surveillance of the Adella

Property revealed a vehicle

registered to Kevin K.

Thomas.

66a

6 )

Using a hand-held thermal

imaging device, a DEA agent

determined that the detached

garage at the Adella

property had a brighter

white image than either the

residence on that property

or than other residences

located nearby. The agent

also determined that the

outbuilding at the Beverly

Hills address also produced

a brighter white image than

either the residence on the

property or than other

residences located nearby.

Higher levels of heat

produce brighter white

images on the device than do

lower levels of heat.

67a

7)

8 )

Barry and Angie Thomas had

been arrested on May 15,

1988 and charged with

cultivating and growing

marijuana. Arrest reports

indicated that 100 marijuana

plants had been found

growing in their residence

in Knoxville. Public

information in newspaper

articles had not mentioned

the number of plants

recovered, although the

October 30 anonymous letter

Said they had been caught

with 100 plants in the

bedroom.

Two packages of unidentified

Supplies were sent from

Superior Growers Supply to

the Beverly Hills address.

68a

a er

The shipping name used was

0

Pence,’

though there was no

one by that name listed in

the Sevierville telephone

directly as of January 30,

1990.

Ii]

We review the district court's

legal conclusion de novo. Because no oral

or other supplemental information was

provided to the magistrate, the probable

cause analysis is limited to the four

corners of the affidavit. Whitley v.

Warden, 401 U.S. 560, 565 n.8 (1971);

Aguilar v. Texas, 378 U.S. 108, 109 n.1, 84

$.Ct. 1509, 1511 n.i (1966).

‘0 The warrant affidavits show the name

of Richard Spence, but the actual shipping

record showed the material going to Pence.

Agent Monroe testified that he had made an

error in checking the records and preparing

the affidavits.

69a

When a magistrate reviews a

warrant request, he must determine whether,

under the totality of the circumstances,

there is probable cause to issue the

warrant. Illinois v. Gates, 462 U.S. 213,

103 S.Ct. 2317 (1983). When the

government uses an anonymous letter as part

of the basis for the probable cause, it

must corroborate the reliability of that

letter. Great deference should be accorded

the magistrate who issues the warrant.

Massachusetts v. Upton, 466 U.S. 727, 733,

104 S.Ct. 2085, 2088 (1984).

In this case, thee were very

specific allegations made in the two

letters. It was not clear whether the

letter-writers in both cases were the same

person, but both letters were extremely

specific. The letters implied a

Substantial familiarity with the operations

at both Thomases' residences. Though even

70a

the detailed knowledge displayed in the

letters would not have been enough,

standing alone, to justify issuance of a

warrant, much of the information amenable

to corroboration was corroborated by the

pol ice.

A number of corroborated items

were seemingly innocent. But corroboration

of apparently innocent items is sufficient

to support issuance of a warrant when there

are enough items and they are particular.

Other information in the letters was

inculpating and non-public, such as the

Knowledge that there were approximately 100

plants seized in the earlier arrest.

The evidence for searching the

residence on Beverly Hills Drive was less

specific and substantial than that for the

Adella residence. However, the government

rightly argues that the volume and

specificity of the information on the

Jla

Adella residence makes the requirement for

the information on the Beverly Hills less

stringent. This can be compared with the

use of information from a confidential]

informant (CI) with a good track record.

With a proven, reliable CI, warrants can

properly issue on very little additional]

information. The warrant issues in large

measure on the basis of the informant's

track record. In iis case, the

information for the Adella residence was

good, specific, and cor roborated, creating

a natural inference that the information on

the Beverly Hills residence was equally

reliable.

Defendants claim that there were

several statements in the anonymous letters

that either were refuted by the officers’

observations or that were amenable to

corroboration but were not in fact

corroborated. But the officer

Y)

D

verify each and every statement in the

letters for a magistrate to find probable

cause. Nor does every single statement

need to be accurate, so long as the general

reliability of the tipster is confirmed,

and the officers made no material

misrepresentations or omissions before the

magistrate that affected the judgment on

probable cause. In this case, looking at

the totality of the circumstances, and

particularly when giving deference to the

issuing magistrate, there was more than

enough probable cause to support the

issuance of the warrant.

Finally, the defendants claim the

information was stale and that therefore

the warrant should not have issued.

Different offenses have different periods

of time in which the government can act on

information before it is considered stale.

A marijuana growing operation, in which the

73a

marijuana must grow to maturity and then be

harvested, has a longer lifetime of

relevant data than a cocaine distribution

operation in which all sales may be

consummated within hours of delivery. See

United States v. Greany, 929 F.2d 523, 525

(9th Cir. 1991)(nearly two-year old

information on marijuana growing operation

upheld, staleness evaluated in light of

particular facts of case and nature of

criminal activity and property sought);

United States v. Dozier, 844 F.2d 701, 707

(9th Cir. 1988)(marijuana cultivation is

long-term crime; even "substantial" time

lapse not controlling on staleness).

In this case, the magistrate

judge at the suppression hearing and the

district judge actually evaluated the

affidavit de novo, and independently

concluded there was insufficient probable

cause. We hold that, looking at the

74a

aaa

totality

probable «

warrant

appropr

magistrate.

of the

ause to suppor

particularly wh

iate deference to

The pattern

was unusual not b

c3 { ead

sonal variatio

were very spe i f

the latte

supporting

In addition,

onsistent w

operation, inclu

growing supplies

Calm air.

IV

Because we fin

probable caus

issuance

the

the iss

address

75 a

evidence,

there was ample

> he of

issuance

en granting

the ssuing

of

a | ere

e+

y, showing

n. The anonymous

and much of the

Ts was

their over:

there was evidence

ith a mari

ding the purchase

and the ventilator

d that there was

e in the affidavit

of the warrant, we

ue raised by the

government of reliance on the good faith

exception to the exr lusionary rule.

Therefore, we REVERSE the district court

and REMAND for further proceedings in

conformity with this opinion.

UN

UNITED S'

Pla

Defe

BEFORE:

No. 92-6207/08

VITED STATES COURT OF AP

PEALS

FOR THE SIXTH CIRCUIT

TATES OF AMERICA, )

intiff-Appellant, )

ITH THOMAS,

ndant-Appellee.

RYAN and BOGGS Circuit

,

and ROSEN,” District Judge.

petition

The court having recei

for rehearing en banc,

having been circulated

the original panel members but a

other active judges of this cour

—

Sl

lly

District

Michigan,

this court having reque:

iggestion for rehearing

ion. Gerald E. Rosen, Un

Judge for the Eastern

sitting by designation

J7a

ved a

and the

t

,

ited

Distrz

c

A. 4

the petition for rehearing has been

referred to the original hearing panel.

The panel has further reviewed

the petition for rehearing and concludes

that the issues raised in the petition were

fully considered upon the original

Submission and decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF

THE COURT

Leonard Green, Clerk

78 a

ANONYMOUS LETTER NO. 1

Dear Sirs:

ABC News just featured a 46-state bust of

indoor marijuana growers (mentioning a

check of utility bills); "48 Hours"

recently featured the use of aerial infra-

red surveillance in arresting an indoor

grower.

Here's a tip from a disgruntled customer

who has seen it all fist hand: three 1000

watt halide lights with may HUGE marijuana

plants underneath and several flourescents

[sic] over literally HUNDREDS of small

cuttings ready to sell and transplant!

Anyone care to see for yourself?

Kevin Thomas

700 Adella Av

Sevierville, TN

His brother Barry, who with his wife was

arrested in Knoxville last spring with 100

plants growing in a bedroom, helped Kevin

cultivate and harvest a BUMPER outdoor crop

this fall from the islands of Douglas Lake;

they are both holding now, and Barry is

sure to hang lamps again as soon as he's

released from probation.

Kevin is about to harvest his "Basement

Bud" and laugh all the way to the bank

AGAIN. He thinks he lives in Mayberry RFD:

"What are they gonna do...send Barney out

here with a bullet?

79 a

st assuredly

,

cc: sevier County Sheriff

Tennessee Highway Patrol

Tennessee Bureau of Invest igatic

Federal Bureau of Investi

United States Marshals

Drug Enforcement Agency

UDO

*

a

ANONYMOUS LETTER NO. 2

Barry and Angie are at it again,

this time in the workshed at their

residence on Beverly Hills Dr. in

Sevierville; this house is owned by Barry's

brother

Kevin Thomas

400 Adella Av.

Sevierville, TN

Kevin is conspiring with his

brother and sister-in-law to again

cultivate marijuana, just after Barry and

Angie were released from unsupervised

probation for a November 1988 simple

issession conviction resulting from a May

eo ere! \ v

we

988 arrest for cultivation (see enclose

newspaper clippings)---the pair even

received record expungement after the

Successful completion of their probation

period (11 months 29 days), during which

time (the summer of 1989) they boldly

cultivated marijuana on the islands of

Louglas Lake with Kevin Thomas!

Kevin also grows pot in the

basement, from which Barry and Angie

obtained the cuttings to maintain their

continuing criminal enterprise. Since

Kevin owns the property and they succeeded

in bringing in a record harvest last

Summer---despite the fact they were caught

red-handed in Knoxvi lie---Barry and Angie

feel they can break the law with impunity.

These criminals' bravado will

Suffice to do them in should this tip

prompt you gentlemen to initiate an

investigation, since their deluded egomania

ignores such facts as:

the workshed is

unattached to their

home, placing it

outside the curtiledge

82a

[sic] of the residence-

-permission from their

neighbor to approach

the same might well

result in the detection

of the pungent of

flowering (an officer

with experience and/or

a trained canine), or

hear the hum of high

assessors need no

permission to

conditioner, which

would be in operation

83a

during freezing outs

temperatures;

there is an air turbine

installed upon the

workshed roof to

evacuate heat and

moisture, turning at

high speeds even in

Calmest of winds and

freezing temperature:

Dlack plastic clear]

covers the window to

prevent the bright

lights from leaking

through;

the electricity

consumption is muct

ide

the

Y

higher than normal f<

the area, and much

higher than last yea

at the same location

84a

r

> *

EEE

(Kevin shut down this

operation site

immediately upon Barry

and Angie being

arrested), attributable

only to the use of grow

lights;

infra-red heat

detection aerial

Surveillance will show

high levels of heat

loss from a supposedly

unoccupied building,

which can only result

from hot grow lights

and transpiration of

growing plants;

after transplanting and

harvesting, they must

dispose of waste

materials (unmarketable

85a

stems and root

Systems )--while they

are wise enough not to

put these materials out

for garbage pickup,

they don't think t hey

are "hot" enough to be

followed while

transporting the same

and depositing it in a

landfill or, more

likely, in a commercial]

dumpster;

their nydroponic medium

Of choice is Pro-Mix BX

Soilless [sic] mix,

purchased at Knox Seed

Supply in Knoxville,

packaged in black 80

lb. bales---these are

large containers which

86a

nust be carried in

plain sight from their

auto, across their

yard, and into theirz

workshed for use;

ground surveillance

would show Kevin also

entering the

“greenhouse,” which

Should not only result

in another conviction

but also in another

warrant to search his

primary residence and

charge his wife for

their basement garden--

forfieture (sic) of

both homes necessarily

follows.

87 a

Surely you have additional

methods to collect evidence to show

probable cause for a search warrant, and

just as surely you know how best to compile

the same to make it stand up in court so

that these criminals' civil liberties are

not infringed upon in the process.

Their first harvest since Barry,

Angie, and their Great Danes moved in is

expected no sooner than the middle of

February and no later than late March:

they expect to harvest every three months

after that.

Good hunting!

88a