Kyllo v. United States: Technology Versus Individual Privacy.

Few issues evoke as much passionate debate as police use of new technologies to combat crime. As noted in a previous article regarding thermal imaging, (1) the introduction of any advanced crime-fighting device into law enforcement's arsenal of weapons raises public concern about the erosion of constitutional rights. The specter of "Big Brother" looms large in the public mind. The debate is an honest one, raising basic issues regarding the proper balance between the personal privacy of individuals and the government's obligation to enforce the law and ensure public safety. Recently, the U.S. Supreme Court decided another skirmish in this ongoing philosophical battle in the case of Kyllo v. United States, (2) involving police use of thermal imaging.

This article discusses the Court's holding in the Kyllo case and its restrictions on police use of thermal-imaging devices. (3) The article also explores major themes developed by federal courts when assessing the impact of new police technologies on traditional Fourth Amendment search law.

FOURTH AMENDMENT SEARCH

The Fourth Amendment to the Constitution of the United States prohibits unreasonable searches. (4) The drafters of the Constitution never defined the concepts of "unreasonable" and "search" as used in the Fourth Amendment. The Supreme Court struggled with these constitutional definitions for many years. Finally, in 1967 in the famous case of Katz v. United States, (5) the Supreme Court formulated the modem definition of a search for purposes of the Constitution. The Court said that a Fourth Amendment search occurs whenever the government intrudes into an individual's reasonable expectation of privacy. (6) Supreme Court Justice Harlan, in a concurring opinion, established a useful two prong test to determine if a reasonable expectation of privacy exists: 1) Do individuals have an actual (subjective) expectation that their activities will remain private? and 2) Is their subjective expectation of privacy one that society is willing to accept as reasonable (objectively reasonable)? (7) If the answer to both ques tions is yes, then a reasonable expectation of privacy exists, and any governmental invasion of that expectation is a search for Fourth Amendment purposes.

However, the Fourth Amendment does not prohibit all government searches, only unreasonable ones. Assuming the government does conduct a search as defined in Katz, is it reasonable or unreasonable? Unlike the question of whether a search has occurred, which can be difficult, the question of the reasonableness of the search is straightforward. If the search is conducted under the authority of a search warrant, or one of the recognized exceptions to the warrant requirement, the search is reasonable for Fourth Amendment purposes. (8)

THERMAL-IMAGING TECHNOLOGY

Thermal imaging is not a new technology. It has been used by both the military and law enforcement for years. The public is accustomed to seeing thermal images of battlefields on the nightly news and thermal images of the streets on popular police reality television programs.

All objects with a temperature above absolute zero emit infrared radiation, which is invisible to the naked eye. The warmer an object is, the more infrared radiation it emits. The thermal imager detects this infrared radiation and converts it into a black-and-white picture. The hotter areas (i.e., those areas emitting more infrared radiation) appear lighter in the picture; the cooler areas appear darker. The device does not measure the actual temperature of objects, only the relative temperatures of the surfaces of objects scanned. It emits no rays or beams that penetrate the object viewed. Law enforcement has found several uses for the device, including locating bodies, tracking fleeing persons, and detecting possible indoor marijuana-growing operations. Using the thermal imager in the battle against indoor marijuana growing operations brought Danny Kyllo and the thermal imager to the attention of the U.S. Supreme Court.

THE KYLLO CASE

The facts of the Kyllo case are typical of these types of investigations. An agent of the U.S. Bureau of Land Management developed information that Kyllo might be growing marijuana inside his home. Among the information he gathered were the facts that Kyllo's ex-wife, with whom he still was apparently living, was arrested the previous month for delivery and possession of a controlled substance; that Kyllo told a police informant that he could supply marijuana; and that other individuals suspected of drug trafficking lived in the same triplex occupied by Kyllo and his ex-wife. The agent subpoenaed Kyllo's utility records and concluded that his utility use was abnormally high. Finally, at the request of the investigator, a member of the Oregon National Guard scanned Kyllo's home using a thermal imager. The scan was made at approximately three o'clock in the morning from the streets in front of and behind the Kyllo residence. No search warrant authorizing the scan was sought. The scan revealed what investigators believed to be abnormally high amounts of heat coming from Kyllo's home. Investigators concluded that the facts of the case gave them probable cause to believe Kyllo was growing marijuana in his house. Investigators applied for and obtained a warrant to search Kyllo's home, using the results of the thermal scan as part of their probable cause. The search revealed marijuana plants, weapons, and drug paraphernalia.

After his indictment for manufacturing marijuana, (9) Kyllo moved to suppress the evidence gathered in his home on several grounds, including the use of the thermal imager without a search warrant. Kyllo argued that targeting his home with a thermal imager was an unreasonable Fourth Amendment search because there was no warrant authorizing it and the government could not justify the lack of a search warrant under one of the warrant exceptions. The trial court denied his motion and Kyllo was convicted. The case was appealed to the U.S. Court of Appeals for the Ninth Circuit.

The Circuit Court's View

The U.S. Court of Appeals for the Ninth Circuit heard the Kyllo case three times before it reached a final conclusion. The Ninth Circuit's struggle to decide this case is a reflection of the divergence of opinion that had developed in the courts regarding the warrantless thermal scanning of a home. It also is an interesting study of the difficulty that courts have in dealing with the impact of advancing technology on Fourth Amendment privacy issues.

The first time the Ninth Circuit considered Kyllo's appeal, it made no decision regarding the constitutionality of a warrantless scan of a home with a thermal imager. Instead, it sent the case back to the trial court for additional hearings on the capabilities of the thermal imager. (10) The trial court found that the imager used by police in this case recorded no intimate details of life inside Kyllo's home; did not invade any personal privacy inside the home; could not penetrate walls or windows to reveal human activities or conversations; and recorded only heat escaping from the house. 11 On that basis, the trial court decided that the thermal scan did not invade a reasonable expectation of privacy and, therefore, was not a search within the meaning of the Fourth Amendment. It again refused to suppress the evidence. The case went back to the Ninth Circuit for a second time.

This time, a three-judge panel of the Ninth Circuit decided that the warrantless thermal scan of Kyllo's home was an unconstitutional search. (12) The court adopted the view that using a thermal imager to target a private home is a Fourth Amendment search, requiring probable cause and authorization of a search warrant or one of the exceptions to the warrant requirement. (13) Its decision was clearly a minority view among federal circuit courts at the time. (14) However, the Ninth Circuit's debate over the issue was not finished. In July 1999, the court withdrew this opinion (15) and decided to reconsider the issue.

On its third and final consideration of this case, the Ninth Circuit reversed itself and held that a thermal scan of a residence is not a search under the Fourth Amendment. (16) It joined the majority of other federal circuit courts (17) in deciding that Kyllo had no actual (subjective) expectation of privacy in the "waste heat" (18) radiating from the surface of his home because he made no effort to conceal the emissions. Even if he could demonstrate an actual expectation of privacy in the escaping heat, the court reasoned that privacy expectation was not objectively reasonable. The court said that the crucial question to be answered in judging the impact of new technologies on privacy issues is whether the technology used to enhance the senses of the police officer is "so revealing of intimate details as to raise constitutional concerns." (19) This court decided thermal imaging was not so revealing. To resolve the conflicting views among federal circuit courts regarding the constitutionality of residential thermal scans, the U.S. Supreme Court agreed to hear the case. (20)

The Supreme Court's View

The Supreme Court disagreed with the majority of the federal circuit courts. In a 5 to 4 decision, it ruled that targeting a home with a thermal imager by police officers is a search under the Fourth Amendment (21) and, therefore, requires probable cause and a search warrant unless the government can forego the warrant under one of the Court's recognized exceptions to the warrant requirement. (22)

The majority and dissenting opinions in this case reflect the difficulty courts in general have resolving the tension between individual privacy and governmental use of technology to combat crime. Several themes emerged in the opinion that echoed arguments made in previous rulings involving police use of emerging technologies.

The first theme involves the area that actually was searched. The majority opinion argued that the surveillance in this case was of the interior of a private home. The Court made it clear that the interior of a home indeed is still a castle. It said "'[a]t the very core' of the Fourth Amendment 'stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."' (23) While the Court often has held that naked-eye surveillance of the exterior of a home and its curtilage by the police is not objectionable as long as police have a lawful vantage point from which to see the home, (24) this case involved more. Using the thermal imager, the majority felt, police were able to explore details of the interior of Kyllo's house that they could not have gotten otherwise without going inside. (25)

The dissent disagreed. It distinguished between technology permitting "through-the-wall surveillance," a search it admitted is presumptively unconstitutional, (26) and "off-the-wall surveillance," a search it assumed to be constitutional. (27) The thermal imager in this case, according to the dissent, passively measured heat emissions from the exterior surfaces of Kyllo's home. There was no penetration into the interior of the residence by the police or by rays or beams emitted by the imager. The dissent argued that police simply gathered information exposed to the public from the outside of Kyllo's home.

A second theme discussed by the Court is the public availability of the technology used. This issue was raised in 1986 in the Dow Chemical Company (28) case. In that case, the Supreme Court noted in passing that "[i]t may well be,...that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public...might be constitutionally proscribed absent a warrant." (29) It was significant to the majority in the Kyllo case that thermal-imaging technology is not widely available to the general public. (30)

While the dissent did not specifically disagree, (31) it criticized the majority for not providing guidance regarding how much use constitutes general public use. It is difficult to discern from the opinion why public availability is important or how important it actually is. It may be a recognition on the part of the Court that as technology makes its way into everyday life, it becomes more difficult for individuals to claim a reasonable expectation to be shielded from its impact.

A third theme that emerges in this case is the debate over the nature and quality of the information supplied to the police by the thermal imager. The Court framed its discussion of this issue in terms of whether or not the technology enabled police to gather information regarding "intimate details" (32) of human activities in the home. This debate also arose in the Dow Chemical Company case. The issue there was the government's use of an aerial mapping camera to photograph a Dow Chemical plant to look for environmental violations. In its opinion, the Court said "[b]ut the photographs here are not so revealing of intimate details as to raise constitutional concerns." (33) The obvious corollary of that statement is that technology in the hands of the government that reveals intimate details of in-home activities does raise constitutional concerns.

The Kyllo majority rejected the government's contention that because the imager used in this case did not provide exacting detail regarding activities inside Kyllo's home, it should not be of constitutional concern. As the majority opinion put it, "In the home, our cases show all details are intimate details because the entire area is held safe from prying government eyes." (34) The majority reasoned, for example, that the imager used in this case might reveal when a person inside the home regularly took a bath each night. Several previous Supreme Court cases were cited to support this view. In United States v. Karo, (35) where government agents simply detected the presence of a can of ether in a private residence by monitoring a beeper placed in the can, the Court found that the agents had conducted an unconstitutional search. In Arizona v. Hicks, (36) an officer lawfully inside a home moved a record player to see its serial number. The Court said that was an unlawful search because it went beyond what the o fficer could see in plain view. In both cases, the information gathered by the police was relatively insignificant, but because it was information about the inside of a home, the majority felt it was intimate enough to warrant protection from the government.

The dissent argued that the thermal scan here provided scant detail regarding the exterior of Kyllo's home and certainly no information concerning its interior. In the dissent's view, the only information gathered by police was an indication that some areas of Kyllo's roof and outside walls were hotter than others. That kind of information, the dissent argued, is unworthy of Fourth Amendment protection because anyone can tell the warmth of a home's walls and roof by looking at evaporation or snowmelt patterns on the roof, and because most people do not care if the amount of heat escaping from their homes is made public. (37)

These major themes are important for law enforcement for two reasons. The first reason is practical--the Kyllo case will have an immediate impact on the use of thermal imaging in criminal investigations. The second reason is less immediate but more far-reaching. The Supreme Court has given law enforcement important clues regarding the government's future use of technology to gather criminal evidence. (38)

Limitations on the Use of the Thermal Imager

The most immediate impact of the Kyllo case is the elimination of the thermal imager as an investigative tool in residential indoor marijuana-growing cases. The majority opinion makes it clear that using a thermal imager to surveil a home is a search under the Fourth Amendment, requiring a search warrant supported by probable cause or justified by one of the search warrant exceptions. If officers have probable cause to believe marijuana is being grown inside a house (or any premises where there is a reasonable expectation of privacy), they will get the warrant and search, not get a warrant and conduct a thermal scan. Consequently, thermal imagers have been rendered superfluous in indoor residential marijuana-growing investigations.

However, the thermal imager still is a valuable tool for use where there is no expectation of privacy or when police are excused from the warrant requirement. For example, using the device to search for fleeing fugitives in an open field, where there is no expectation of privacy, is permissible. In addition, using the thermal imager to target even a private residence still is arguably permissible in emergency situations where the search warrant requirement is excused. (39) For example, if faced with a dangerous barricaded subject or a hostage situation and officers decide an entry is necessary, no warrant would be necessary to thermally scan a premises as long as officers have reasonable suspicion to believe a threat to life exists. (40) Of course, if time permits, officers always should seek a warrant before entering a private area.

LARGER IMPLICATIONS OF KYLLO

Law enforcement officers have sworn to uphold the Constitution of the United States and of their respective states. The oath includes the obligation to assess their actions in light of ever-changing interpretations of the law by the courts. That assessment must include the increasing use of sophisticated technology to ferret out crime.

In Kyllo, the Supreme Court provided some guidance to law enforcement regarding when its use of technology unreasonably Infringes personal privacy. In light of Kyllo, law enforcement officers should ask themselves certain questions before using sophisticated devices in their investigations.

What Is Being Targeted?

Kyllo confirms the familiar proposition that anytime police invade a reasonable expectation of privacy, it is a Fourth Amendment search requiring a warrant or an exception to the warrant requirement. That is true whether the invasion is physical or technological as in the Kyllo case. If the target of the technological surveillance is the interior of a home, the Supreme Court has made it clear that there is an expectation of privacy, and it is reasonable. (41) The same conclusion must be reached where the target of the surveillance is the interior of a commercial building inaccessible to the public. Where the target is the exterior of a premises, there likely is no expectation of privacy as long as police have a lawful vantage point from which to conduct their technological surveillance, and the results of the surveillance reveal nothing regarding the interior of the premises.

Similarly, if the thermal imager is used to search a person (as opposed to search for a person in an area where there is no expectation of privacy), a reasonable expectation of privacy must be assumed. For example, using a thermal imager, it is theoretically possible to detect the presence of objects concealed under a person's clothing. Such a use of the thermal imager is a Fourth Amendment search and must comply with the constitutional requirements.

What Information Is Gathered?

It is clear from the Kyllo decision that the Supreme Court is concerned about the collection by the police of what it calls "intimate details" or "private activities occurring in private areas." (42) The Court did not define what details are intimate and private and what details are not and wants to avoid deciding the issue on a case-by-case basis. Instead, the Court opted for a rule that within the confines of a home, "all details are intimate details" (43) and protected by the Fourth Amendment. Consequently, if officers are considering using a device that will enable them to gather any information regarding the interior of a home (or any area in which there is a reasonable expectation of privacy) from outside, they must comply with the provisions of the Fourth Amendment.

Is the Device Generally Available to the Public?

As noted above, the Supreme Court often limits its reservations regarding police use of technological devices to those devices not generally available to the public. It did so in its opinion in the Dow Chemical Company (44) case and in Kyllo. (45) It is unclear how important this consideration is to the Court. The implication seems to be that individuals cannot claim a reasonable expectation of privacy against technological intrusions that are widely known to occur and happen on a regular basis. The Court in Kyllo acknowledged that. It said "[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. For example...the technology enabling human flight has exposed to public view (and, hence, we have said, to official observation), uncovered portions of the house and its curtilage that once were private." (46)

Does that mean if thermal imagers become commonplace the Court will permit police to routinely scan the interior of homes without warrants? Probably not, for two reasons. The Court has long distinguished between police surveillance of the exterior of homes and the interior of homes: "We have said that the Fourth Amendment draws a firm line at the entrance to the house, (citation omitted). That line, we think, must be not only firm but also bright.... "(47) Given the strong language in the Kyllo opinion, it is unreasonable for police to assume that governmental intrusions into private areas are permissible simply because everyone is doing it. In addition, private (non-governmental) and commercial use of new technologies does not raise constitutional concerns. The Constitution was written to limit the authority of the government, not private citizens. (48) Consequently, the Supreme Court will not question the use of a thermal imager by an insulation company to demonstrate homeowners' need to insulate their homes, but put the same thermal imager into the hands of the police investigating a crime, and a multitude of weighty legal issues will arise. When assessing the Fourth Amendment implications of using technological devises to gather information about the interior of premises, officers should not rely on the fact that the device is widely available.

Why Is the Device Being Used?

Using technology to gather evidence of criminal activity obviously raises Fourth Amendment concerns. However, criminal investigation is not always the goal. Often, technology is employed by the government for the broader purpose of public safety. The most obvious example is the use of X-ray and magnetic screening devices at airports and government office buildings. Courts have long recognized that such warrantless searches are permissible because they are administrative in nature, not criminal, and are not very intrusive. They serve the valid governmental purpose of securing public safety, rather than gathering evidence of criminal activity. (49) So long as the technological search is narrowly limited to serve only that public safety purpose, it will pass constitutional muster.

Where and When Is the Device Being Used?

Another factor courts consider when assessing police use of technology is where and when the device is used. If the device is used in public areas, such as airports and public buildings, where people are aware of its presence, courts generally have fewer constitutional reservations regarding its use. Under those conditions, people can make a choice to enter the screening area or not. If they choose to enter, some courts have reasoned that they have consented to be searched by the device in use. (50) If the device is used in the dead of night, as happened in the Kyllo case, consent obviously is impossible.

CONCLUSION

Historically, modern technology in the hands of the police has raised well-founded fears in the public mind concerning the erosion of privacy rights. The police, however, have an obligation to protect the public safety through whatever constitutional means are available to them. Criminal elements are quick to adopt the latest technological gadgets in order to stay one step ahead of the police. Police quickly must respond in kind. The tension between these two legitimate interests has created some of the most difficult issues faced by U.S. courts.

In Kyllo v. United States, the U.S. Supreme Court drew a bright line around the home and announced a rule that warrantless police use of technology stops at the front door. Simply put, the Court stated that if police use technology from outside the home to gather information they could not otherwise obtain without going inside, they have conducted a search within the meaning of the Constitution, which must be supported by a warrant or a recognized exception to the warrant requirement.

While the Kyllo case dealt specifically with thermal-imaging technology, it has much larger implications. Law enforcement officers have an obligation to assess all technological devices in their arsenal in light of the lessons delivered in this case.

Special Agent Colbridge is a legal instructor at the FBI Academy.

Endnotes

(1.) Thomas D. Colbridge, "Thermal Imaging: Much Heat but Little Light," The FBI Law Enforcement Bulletin, December 1997, 18-24.

(2.) 121 S. Ct. 2038 (2001).

(3.) While the Kyllo case dealt with a thermal imaging device, the legal principles discussed in this article apply equally to the Forward Looking Infrared Radar (FLIR) device, an adaptation of the thermal imager for use on aircraft.

(4.) U.S. Const. Amend IV: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated...."

(5.) 389 U.S. 347 (1967)

(6.) Id.

(7.) Supra note 5 at 361 (J. Harlan, concurring).

(8.) Supra note 5 at 357. The exceptions to the search warrant requirement recognized by the Supreme Court are the consent search (Schneckloth v. Bustamonte, 412 U.S. 218 [1973]); the search incident to arrest (U.S. v. Robinson, 414 U.S. 218 [1973]); the emergency search or exigent circumstances search (Warden v. Hayden, 387 U.S. 394 [1967]); the motor vehicle search (Carroll v. U.S., 267 U.S. 132 [1925]); the inventory search (South Dakota v. Opperman, 428 U.S. 364 [1976]); certain administrative searches of regulated businesses (New York v. Berger, 482 U.S. 691 [1987]); and "special needs" searches (Veronia School District 47 J v. Acton, 515 U.S. 646 [1995]).

(9.) 21 U.S.C. 841(a)(1).

(10.) United States v. Kyllo, 37 F.3d 526 (9th Cir. 1994).

(11.) United States v. Kyllo, No. CR 92-051-FR (D.Or. March 15, 1996).

(12.) United States v. Kyllo, 140 F.3d 1249 (9th Cir. 1998).

(13.) Id. at 1255.

(14.) The U.S. Court of Appeals for the Tenth Circuit held in 1995 that a thermal scan of a home was a search: United States v. Cusumano. 67 F.3d 1497 (10th Cir. 1995), vacated on other grounds, 83 F.3d 1247 (10th Cir. 1996). Two states also had adopted this minority view: State v. Young, 867 P.2d 593 (Wash. 1994) and State v. Siegel, 934 P.2d 176 (Mont. 1997).

(15.) United States v. Kyllo, 184 F.3d 1059 (9th Cir. July 29, 1999).

(16.) United States v. Kyllo, 190 F.3d 1041 (9th Cir. 1999).

(17.) See United States v. Ishmael, 48 F.3d 850 (5th Cir. 1995); United States v. Myers, 46 F.3d 668 (7th Cir. 1995); United States v. Pinson, 24 F.3d 1056 (8th Cir. 1994); United States v. Robinson, 62 F.3d 1325 (11th Cir. 1995).

(18.) Supra note 16 at 1046.

(19.) Supra note 16 at 1047 (quoting Dow Chemical Co. v. United States, 476 US 227 (1986) at 238).

(20.) Kyllo v. United States, 530 U.S. 1305 (2000).

(21.) Kyllo v. United States, 121 S. Ct. 2038 at 2043.

(22.) Supra note 8 lists the exceptions to the search warrant requirement.

(23.) Kyllo, 121 S. Ct. at 2043 quoting Silverman v. United States, 365 U.S. 505 (1961) at 511.

(24.) California v. Ciraolo, 476 U.S. 207 (1986); Florida v. Riley, 488 U.S. 445 (1989).

(25.) Kyllo, 121 S. Ct. at 2043.

(26.) Kyllo, 121 S. Ct. at 2048 (J. Stevens, dissenting), citing Payton v. New York, 445 U.S. 573 (1980).

(27.) Kyllo, 121 S. Ct. at 2048, (J. Stevens, dissenting), citing California v. Ciraolo, supra note 24; Florida v. Riley, supra note 24; California v. Greenwood, 486 U.S. 35 (1988); Dow Chemical Co. v. United States, supra note 19; and Air Pollution Variance Board of Colorado v. Western Alfalfa Corporation, 416 U.S. 861 (1974).

(28.) Supra note 19.

(29.) Dow Chemical Company, 476 U.S. at 238 (1986).

(30.) Kyllo, 121 S. Ct. at 2043.

(31.) The dissent did point out in a footnote that thousands of thermal imagers had been manufactured and are available for rental by anyone. See Kyllo, 121 S. Ct. at 2050, note 5. (J. Stevens, dissenting).

(32.) Kyllo, 121 S. Ct. at 2045.

(33.) Dow Chemical Company, 476 U.S. at 238 (1986).

(34.) Kyllo, 121 S. Ct. at 2045 (emphasis in original).

(35.) 468 U.S. 705 (1984).

(36.) 480 U.S. 321 (1987).

(37.) Kyllo, 121 S. Ct. at 2048 (J. Stevens, dissenting).

(38.) Regarding certain technology in development, the Court offered more than clues. In a footnote, the majority specifically named surveillance devices under development and implied they would raise Fourth Amendment concerns. Those technologies are the Radar-Based Through-the-Wall Surveillance System, Handheld Through-the-Wall Surveillance, and a Radar Flashlight enabling officers to detect people through interior building walls. See Kyllo, 121 S.Ct. at 2044, footnote 3.

(39.) See United States v. Johnson, 9 F.3d 506 (6th Cir. 1993).

(40.) See Terry v. Ohio, 392 U.S. 1 (1968); United States v. Menard, 95 F.3d 9 (8th Cir. 1996).

(41.) Kyllo, 121 S. Ct. at 2043. Of course, even inside the home, there is no expectation of privacy regarding matters that individuals choose to expose to the public: Katz v. United States, 389 U.S. 347 at 351 (1967), and cases cited at supra note 27.

(42.) Kyllo, 121 S. Ct. at 2045.

(43.) Kyllo, 121 S. Ct. at 2045.

(44.) Supra note 29.

(45.) Supra note 30.

(46.) Kyllo, 121 S. Ct. at 2043.

(47.) Kyllo, 121 S. Ct. at 2046, citing Payton v. New York, 445 U.S. 573 (1980).

(48.) United States v. Jacobson, 466 U.S. 109 (1984); United States v. Knoll, 16 F.3rd 1313 (2nd Cir.), cert. denied 115 S. Ct. 574 (1994).

(49.) United States v. Bulalan, 156 F. 3rd 963 (9th Cir. 1998); United States v. John Doe, aka Geronimo Pizzaro-Calderon, 61 F.3d 107 (1st Cir. 1995); United States v. $124,570 U.S. Currency, 873 U.S. 1240 (9th Cir. 1989).

(50.) United States v. DeAngelo, 584 F.2d 46 (4th Cir. 1978), cert. denied 440 U.S. 935 (1979); United States v. Miner, 484 F.2d 1075 (9th Cir. 1973).