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UNITED STATES v. CASANOVA

November 1, 1993

UNITED STATES OF AMERICA
v.
STEPHEN F. CASANOVA, Defendant.



The opinion of the court was delivered by: HOWARD G. MUNSON

 MEMORANDUM-DECISION AND ORDER

 INTRODUCTION

 Defendant Stephen Casanova was arrested on April 21, 1993, following the execution of a search warrant at his residence at 6280 Hawkins Corners Road, Lee Center, New York. An indictment handed down on May 20, 1993 charges defendant with manufacturing and possessing with intent to manufacture marijuana, in violation of Title 21, United States Code, section 841(a)(1), and also charges forfeiture of property used to commit and facilitate the commission of federal drug crimes, pursuant to Title 21, United States Code, section 853. Defendant now moves to suppress all evidence seized during the April 21, 1993 raid, and also seeks to suppress statements made by defendant at the time of the arrest which were allegedly obtained in violation of his rights guaranteed by the Fifth and Sixth Amendments to the United States Constitution. On September 17, 1993, the court heard oral argument on defendant's motion to suppress. Following argument the court denied, in a decision delivered from the bench, defendant's motion to suppress in so far as it was based upon the Sixth Amendment. The court granted a suppression hearing on specific factual issues regarding defendant's Fourth and Fifth Amendment claims. The suppression hearing was held on October 5, 1993. This Memorandum-Decision and Order constitutes the court's disposition of the motions.

 BACKGROUND

 On April 20, 1993, Magistrate Judge Gustave J. DiBianco issued a search warrant for the residence of Stephen Casanova located at 6280 Hawkins Corner Road, Lee Center, New York. Magistrate Judge DiBianco's determination that probable cause existed to justify the search was based upon the affidavits of three law enforcement officers: Central New York Drug Enforcement Task Force Investigator Denis J. Cimbal; New York State Police Investigator Matthew A. Tynan; and New York Army National Guard Captain John R. Pursell. Although the validity of the search warrant is at issue in this case, the underlying chronology of events is not disputed. *fn1"

 The investigation of defendant began following an anonymous phone call on March 9, 1993 to the Narcotics Unit of the New York State Police office located in Oneida, New York. The caller, who refused to identify himself, informed an investigator that he knew defendant. The informant identified defendant's address, described defendant's home, described defendant physically, and advised that defendant was growing one thousand marijuana plants in his basement. The caller further named three people, including Frank Ermenio, who were involved in the alleged marijuana growing operation.

 On the same day, Investigator Tynan travelled to defendant's residence and verified the informant's description of the area. Tynan observed two cars in defendant's driveway. One of those cars was registered to Frank Ermenio. A criminal history check revealed that in 1985 defendant was convicted in the United States District Court for the Northern District of New York for conspiracy to distribute marijuana and cocaine. Ermenio was found to have been arrested in 1975 on a charge of criminal possession of a controlled substance, and in 1986 on a charge of operating a motor vehicle under the influence of drugs. The former charge against Ermenio was dismissed; the latter resulted in an unconditional discharge.

 On April 12, 1993 Investigator Tynan interviewed a confidential source ("CS") regarding defendant. CS had been cooperating with state police since a February 1993 arrest for criminal possession of a controlled substance and driving while intoxicated. According to Tynan, CS had proven to be a reliable informant, and had made a controlled purchase of cocaine for the state police. CS professed to have known defendant for four years, having lived with him for a one year period. CS stated that defendant always had marijuana in his house, typically five to ten pounds. CS also stated that defendant was the sole supplier of marijuana to Rick Bruno, from Rome, New York. CS provided Tynan with details of Bruno's arrest in 1990 for possession of 21 pounds of marijuana, and stated that the drugs were purchased with money invested by defendant. CS stated that Bruno continued to sell marijuana, and that Bruno had recently contacted CS for the purpose of selling him high grade marijuana.

 On April 1 and April 19, 1993 Tynan and Captain Pursell surveilled defendant's residence with an infrared tracking device ("ITD"). The ITD used in this instance was an AN/TAS-5. The AN/TAS-5 was developed for the United States Army to use during times of war. Its primary purpose is to locate enemy vehicles by sensing differences in thermal emissions. In recent years, however, the AN/TAS-5 has been used domestically in drug investigations; when allegations are raised that a suspect is growing marijuana indoors, the instrument is used to measure differences in thermal emissions coming from the structure to determine whether they are consistent with a marijuana growing operation. *fn2"

 More specifically, the An/TAS-5 "detects relative differences in temperature." Testimony of Albert VanLanduyt, Doc. 29, at 7. By converting a relative amount of energy radiating from an object into a like amount of relative energy in a light emitting diode which is viewed through its eyepiece, the AN/TAS-5 allows its operator to perceive the relative "emissivity" of objects within the field of view. Id. at 7-8. In other words, the operator of the AN/TAS-5 is able to discern whether one part of an object is "hotter" than another part. Objects radiating at a higher degree of emission look lighter and those that are radiating less will look darker. Id. at 8.

 As a result of their use of the AN/TAS-5 to evaluate the "heat pattern" of defendant's residence on April 1 and April 19, 1993, Investigator Tynan and Captain Pursell concluded that the pattern was consistent with that of a residence in which marijuana was being cultivated in its basement. While other residences evaluated with the AN/TAS-5 showed more heat radiating from the upper portion of the structure than from the lower portion, defendant's home was observed to be emitting more heat from the basement than from the top of the house.

 Investigator Tynan also obtained information regarding defendant's use of gas and electricity at his residence. Tynan displayed that information in graphs submitted to Magistrate DiBianco along with his affidavit in support of the search warrant. See Graphs, Exh. A attached to Gov't Exh. 7. The graphs depict a dramatic increase in electric power consumption from 1990 to 1991. Tynan related in his affidavit that in his experience it is common for persons engaged in the growing of marijuana to use electric power for lighting, irrigation, and drying systems, thereby causing excessive electric power usage. Investigator Tynan concluded that "the power usage at 6280 Hawkins Corners Road . . . is consistent with an indoor marijuana growing operation." Gov't Exh. 7, at P 19.

 Investigator Tynan and Captain Pursell reported the results of their investigation in their affidavits submitted to Magistrate DiBianco. See Gov't Exhs. 4, 7. On April 20, 1993 Magistrate DiBianco signed a search warrant based on the submitted affidavits. See Doc. 4.

 Upon execution of the warrant, law enforcement officials found and seized marijuana growing equipment and about 389 marijuana plants in various stages of development. During the search of his home, defendant stated that all the marijuana was for his own use, opined that marijuana has no adverse effect on ...


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