Newsletter.gif (2157 bytes)
A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 21              Covering Cases Published in the Advance Sheets through May 21, 2001

Highlights of this Issue:

Supreme Court Decisions:

Government Agents and the Defense of Immunity:

Trading Drugs for Guns:  Does it Violate 18 U.S.C. 924(c)?:

Apprendi Watch:

Dont forget to visit the Apprendi  Watch section of our Web site each week - the most current and comprehensive site on the entire Internet for all the latest developments involving that watershed decision. That section now contains summaries of more than 225 Apprendi decisions, links to numerous Apprendi articles and more than 100 Apprendi briefs and motions, and a listing of the 49 cases that the Supreme Court has vacated to date based on Apprendi.

Kyllo v. United States, No. 99-8508 (U.S. Sup. Ct. 06/11/2001) (Justice Scalia)

In this case, a sharply divided Supreme Court ruled that the use by police of a thermal imaging device to detect heat patterns coming from a private home is a "search" within the meaning of the Fourth Amendment; and therefore is presumptively unreasonable without a warrant.

Here, after receiving tips that the petitioner, Danny Lee Kyllo, was growing marijuana plants indoors under high-intensity lamps, two Federal agents trained a heat sensing device on Kyllos home. Using that device, they determined that parts of the house were warmer than the rest of the building and the neighboring houses. Based on that information, they then obtained a warrant to search the house; and they discovered more than 100 marijuana plants growing under halide lights. Kyllo was indicted on one count of manufacturing marijuana, in violation of 21 U.S.C. 841(a)(1). After he unsuccessfully moved to suppress the evidence seized from his home, he entered a conditional guilty plea.

In his first appeal, a panel from the Ninth Circuit held, in U.S. v. Kyllo, 140 F.3d 1249 (9th Cir. 1998) (P&J, 6/15/98), that the warrantless use of the thermal imager violated the Fourth Amendment. The Government requested a rehearing, which was granted; and, in U.S. v. Kyllo, 190 F.3d 1041 (9th Cir. 1999) (P&J, 8/30/99), a different panel reversed the earlier decision and held (over the dissent of Judge Noonan) that the warrantless use of the thermal imager was not a violation of the Fourth Amendment.

In a decision that shattered the normal allegiances and alliances of the Supreme Court Justices, the Court, by a vote of 5-to-4, reversed the second Ninth Circuit decision and held that the agents should have obtained a warrant before using the thermal heat scanner on Kyllos home. In this ruling, Justices Scalia and Thomas (two of the Courts most conservative judges) joined with the predominately liberal group of Justices Breyer, Ginsburg and Souter to create the majority. Perhaps the biggest surprise was that Justice Stevens, normally the Courts most liberal judge, joined with Justices Rehnquist, OConnor and Kennedy, to champion the law and order position espoused by the police.

The theme of the majoritys position was that the Fourth Amendment draws "a firm line at the entrance of the house." That line "must not only be firm but also bright" - especially in view of the "power of technology to shrink the realm of guaranteed privacy." From that perspective, the Fourth Amendment requires the Government to obtain a warrant when using "a device that is not in general public use, to explore the details of the home that would previously have been unknowable without physical intrusion." To take any other approach, the majority said, "would leave the homeowner at the mercy of advancing technology - including imaging technology that could discern all human activity in the home."

Writing for the dissenters, Justice Stevens concluded that all the infrared camera did in this case was passively measure heat emitted from the exterior surfaces of petitioners home. "[T]he notion that heat emissions from the outside of a dwelling is a private matter implicating the protections of the Fourth Amendment . . . is not only unprecedented but also quite difficult to take seriously. Heat waves, like aromas that are generated in a kitchen, or in a laboratory or opium den, enter the public domain if and when they leave a building."

While Justice Stevens acknowledged that a homeowner has a reasonable expectation of privacy concerning what takes place within the home, he also strongly objected to the sweeping nature of the majoritys "newly minted" rule. He stated: "Instead of trying to answer the question whether the use of the thermal imager in this case was even arguably unreasonable, the Court has fashioned a rule that is intended to provide essential guidance for the day when more sophisticated systems gain the ability to "see" through walls and other opaque barriers. . . . The newly minted rule encompasses obtaining [1] by sense-enhancing technology [2] any information regarding the interior of the home [3] that could not otherwise have been obtained without physical intrusion into a constitutionally protected area & [4] at least where (as here) the technology in question is not in general public use." In his mind, the creation of a "bright-line" rule in response to concerns about "future technological developments is unnecessary, unwise and inconsistent with the Fourth Amendment."

Justice Stevens also argued that "[f]or the first time in its history, the Court assumes that an inference can amount to a Fourth Amendment violation" - a reference to the fact that the officers in this case only inferred (correctly) from their thermal-image scan that Kyllo was growing marijuana in his house.

Finally, Justice Stevens criticized the majoritys adoption of a new rule that is hinged on its unexplained reference to the devices "general public use." He complained that such a standard was unpredictable - and "somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available."

Idaho v. Horiuchi, No. 98-30149 (9th Cir. 6/05/2001) (En banc) (Judge Kozinski)

On August 22, 1992, at a remote spot in northern Idaho known as Ruby Ridge, a weeklong standoff between white supremacist Randy Weaver and federal agents ended in a shootout during which an FBI sniper, Lon T. Horiuchi, shot and killed Weaver's unarmed wife, Vicki, while she was cradling an infant in her arms. Although the Department of Justice later determined that Horiuchi and his team of snipers were acting under unconstitutional "Rules of Engagement," it refused to prosecute him. It concluded that a case of "willfulness, or knowing, intentional use of unreasonable force" could not be made against Horiuchi.

The State of Idaho then charged Horiuchi with involuntary manslaughter. Its complaint alleged that Horiuchi "unlawfully, but without malice," killed Vicki Weaver. Horiuchi immediately moved to have the case transferred to the Federal district court, pursuant to 28 U.S.C. 1442 (a statute that permits Federal officers who have been sued or prosecuted in state courts to have their cases removed to the Federal courts).

As soon as the case was transferred, Horiuchi moved to dismiss the indictment on grounds of Supremacy Clause immunity. (As explained by the Court, the Supremacy Clause, "at its textual core, provides that states are bound by federal law, and nullifies any inconsistent state laws.") The district court (Judge Lodge) granted Horiuchi's motion (without an evidentiary hearing) and Idaho appealed. In an earlier decision, reported at 215 F.3d 986 (9th Cir. 2000) (Horiuchi I), a panel from the Ninth Circuit affirmed the dismissal of the state manslaughter charges.

Shortly after the panel released its decision in Horiuchi I, a majority of the active judges on the Ninth Circuit voted to rehear the case en banc to consider "the outer bounds of Supremacy Clause immunity in the context of Idaho's attempt to prosecute FBI Special Agent Lon T. Horiuchi for killing Vicki Weaver during the infamous Ruby Ridge incident."

A sharply divided en banc court (split by a vote of 6-to-5) reversed Horiuchi I and reinstated the indictment. Writing for the majority, Judge Kozinski concluded that "[a]fter carefully reviewing the record, we cannot agree with the district court that Agent Horiuchi's use of deadly force . . . was objectively reasonable as a matter of law. Accordingly, Agent Horiuchi is not entitled to dismissal on the ground of Supremacy Clause immunity at this stage in the proceeding."

That controversial ruling is certain to open a lot of wounds and set off a long-term debate about how much protection should be given to Federal agents who engage in manifestly unlawful conduct. The Courts lengthy decision is also bound to have a ripple effect in a number of other areas. For example, much of the Courts detailed description of what really happened at Ruby Ridge is extraordinarily revealing - sometimes to the point of being shocking. The majority relied heavily on evidence culled from the reports of a Senate subcommittee that investigated the matter; and much of that evidence runs counter to the "official" versions of what happened at Ruby Ridge as recounted by the FBI and the Department of Justice (DOJ).

In addition, much of the Courts decision is deeply disturbing. Even the casual reader cannot ignore the Governments calculated efforts to exonerate itself from any wrongdoing, principally by demonizing the victims, covering-up the results of its own internal investigations, and presenting implausible - if not impossible - rationalizations as if they were concrete facts.

According to Judge Kozinski, the Ruby Ridge incident led to "one of the most intensive internal reviews of an FBI investigation" ever undertaken. One of those investigations was conducted by a task force of the DOJs own Office of Professional Responsibility (OPR) - a unit that has been castigated, since its inception in 1976, for its "see-no-evil track record." The task force concluded in a 1994 Report that the FBI's Hostage Rescue Team "overreacted to the threat of violence and instituted a shoot-on-sight policy that violated bureau guidelines and Fourth Amendment restrictions on police power."

A short time later, the DOJ withdrew the Report - apparently (at least according to Judge Kozinski) because the DOJ "did not endorse the views of the OPR Task Force." (Unfortunately for the DOJ, although the Report was withdrawn, it could not be eradicated from existence: it has been preserved for posterity on the Internet at - and it makes interesting reading).

Another noteworthy feature of this decision is its discussion of the now-fabled Rules of Engagement that were employed at Ruby Ridge. As explained by Judge Kozinski, the "Rules initially authorized agents to fire at any armed adult if the shot could be taken without endangering the children in the cabin. . . . The Rules present another mystery. Everyone now seems to agree that they were clearly unconstitutional. . . . But on the day of the shooting no one voiced any objection. And, no one now admits to having approved the Rules."

Apart from his references to some of the many "mysteries" that Ruby Ridge spawned, Judge Kozinskis opinion was surprisingly strong. For example: "The dissent suggests that denying immunity where the officer acted in the scope of his official duties and without deliberate malice would be unprecedented. What's unprecedented about this case is that the taking of human life was pre-planned." (Emphasis added).

In response to the Federal Governments contention that subjecting federal agents to the criminal laws of the various states could chill their ability to carry out vital duties, such as guarding the President, Judge Kozinski responded that an officer must be denied immunity "unless he demonstrates that he believed both reasonably and honestly that his conduct was lawful." Here, the evidence suggested that Horiuchi killed Vicki not because he thought that she and her companions posed a danger to the FBI, but because he was following the unconstitutional Rules of Engagement. "Assuming the facts alleged by the state, this is not a case where a law enforcement agent fired his weapon under a mistaken belief that his fellow agents or members of the public were in immediate danger. Rather, a group of FBI agents formulated rules of engagement that permitted their colleagues to hide in the bushes and gun down men who posed no immediate threat."

"Having used deadly force without a warning, Horiuchi is only entitled to immunity if he could have reasonably believed that giving a warning in this case would be futile or dangerous. To prevail on the motion to dismiss, he has to show that there is no material dispute on this point." The majority then proceeded to analyze the six key factual elements that were the cornerstones of Horiuchis defense - and found them to be replete with inconsistencies or dependent upon strained or even illogical assumptions.

Conversely, the approach of the dissenting judges was to dispute the majoritys interpretation of the facts and the law and to focus on the parade of horribles that they believe will certainly flow from the majoritys ruling. Their argument is perhaps best summarized by a single sentence: "Despite the majoritys protestations, there are no disputed issues of material fact in this case, and the majoritys insistence on sending this case back for still more proceedings frustrates the clear intent of the law that Horiuchi and other federal officers be free from the harassing threat of state criminal prosecution for honest mistakes of judgment they might make when carrying out their federal duties." While we assume that this case is far from a final resolution, at least the majoritys decision puts to rest many of the myths and fables that we originally heard about Ruby Ridge and the grave threat that the band of renegades who were encamped there posed to our national security.

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:


This Week

Year to Date

Since 1996

Courts of Appeal




District Courts




Copyright 2001 Punch and Jurists, Ltd.