Full opinion text
MEMORANDUM OPINION FOR ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO SUPPRESS DONALD, District Judge. Before the court are the motions of the defendants, James Elkins and Carol El-kins, to suppress evidence gained from searches of their various properties, which were conducted both without and pursuant to warrants. The United States opposes the motions. Evidentiary hearings were conducted August 30-31, September 1-3, October 25-26, and 28, 1999, pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See also United States v. Atkin, 107 F.3d 1213 (6th Cir.1997). The parties filed contemporaneous post-hearing briefs on or about January 3, 2000. The defendants also filed supplemental authority. Thus, the matter is ripe for decision. FACTS During 1996, certain officers of the Memphis Police Department Organized Crime Unit and the Federal DEA Drug Task Force received information about a marijuana grow at 155 Scott Street and the building behind Scott Street. An anonymous caller, believed to be the original tipster, also told the officers that marijuana was being grown at the Elkins home at 1270 Tutwiler (testimony of Dion Cici-nelli). The tip regarding the marijuana grow was received from an individual allegedly stopped for speeding in exchange for potential “help” with the speeding citation. The individual relayed information about the marijuana grow but did not provide a basis for his knowledge. There is a conflict in the testimony over who actually received the information. Officer Duane Gary (“Gary”) testified that he received the information from Lieutenant David Martello (Martello) and Martello stated that he received the information from another officer, Dion Cicinelli (Cicinelli). The officers admitted that they had no knowledge of the reliability of the citizen informant or whether this person had ever previously given information to the police. Indeed, some of the officers admitted that the informant was not reliable. However, he was later paid for his information concerning 155 Scott Street. The primary police officers involved in the investigation were Gary, Joe Hoing (Hoing), Frank Bell (Bell), Cicinelli, and Martello. During July and August of 1996, various police officers intermittently watched the addresses of ls?i5s Scott Street and conducted some preliminary investigation. The officers watched the addresses from five to ten times during the two month period. During the periods the address was watched, generally late at night, the investigating officers testified that they observed “a lot of traffic in the area.” The officers recalled seeing two vehicles on one occasion, and on another occasion they observed two Hispanic males in a pick-up truck which went to 146 Neil Street and an African-American male a short distance down the street from 146 Neil Street, but apparently were unable to question them. They also observed James and Carol ElMns arrive and leave several times during the course of the surveillance and also observed a number of off-duty police officers in the area of 155 Scott Street. At one time, the officers spoke with James Elkins and he complained about the burglaries in the area. Elkins advised that he was employing off-duty police officers to provide security at his businesses at the Scott and Neil addresses. Elkins did not mention 2896 Walnut Grove. Elkins asked the officers to watch the area. During the course of the investigation, Hoing checked with Memphis Gas Light and Water (“MGL & W”) and discovered that at certain times of the year the utility bills of the addresses under surveillance were high. The officers did not indicate how high nor at what periods the bills were high. There was no testimony regarding utility checks made on the building at 2896 Walnut Grove prior to the August 22, 1996, search and seizure, although the affidavit for the warrant for 1270 Tutwiler issued on August 22, 1996, states otherwise. There were no references to the high utility bills in the affidavits applying for the warrants. At some time prior to the application for and execution of the search warrants, a criminal records check performed on James Elkins revealed that he was a convicted felon. Apparently, the officers did not check any public records to determine if any business licenses were issued to Elkins for the addresses in question. However, the officers did observe large quantities of sheep manure (ie., fertilizer) near the building at 146 Neil Street. On or about August 19, 1996, during the surveillance of 155 Scott Street, Hoing testified that he met an Officer Tim Shields of the Memphis Police Department who was doing security work for Elkins. At that time, Hoing was accompanied by Bell and drug-detection dogs. Hoing testified that he had brought the dogs with him not to try and detect drugs but as a ploy in the event the police were spotted. The investigation become more intense when Martello received a call from Internal Affairs on August 19, 1996, inquiring if there was a drug investigation occurring on Scott Street, as there were several off-duty officers working security there. As a result of this call, Martello decided to bring the investigation to the next level. Cicinelli testified that sometime during the month of July, he received an anonymous call at the Organized Crime Unit, informing him that Elkins had a marijuana grow at 155 Scott Street, at the building behind Scott Street, and at his residence at 1270 Tutwiler Street. However, the record is devoid of any other information concerning this anonymous caller. The timing and specificity of this anonymous caller and the coincidence of the call being forwarded directly to the appropriate investigating officer in a department the size of the Memphis Police Department raises significant credibility questions. Several officers were watching the El-kins residence at 1270 Tutwiler through the night prior to August 21, 1996, in anticipation of speaking with James Elkins when he left for work in the morning. At the same time, several other officers, including Martello, Bell, Hoing, and Captain Terry Livingston (“Livingston”) of the Tennessee National Guard, were surveil-ling 139/Í55 Scott Street. During the surveillance, the officers observed one of the off-duty police officers, Smith, working security at the Scott addresses. This occurred after midnight on August 21, 1996. Mar-tello testified that he informed Smith of their suspicions concerning drug activity in the area. Smith informed the officers that he was also guarding another Elkins property, 2896 Walnut Grove, and offered to admit them to that address. Smith led the officers to the Walnut Grove address, but Martello declined to enter. Smith reported no suspicious activity at Walnut Grove nor any other Elkins properties. The officers testified that this was the first time that 2896 Walnut Grove came to their attention in relation to their investigation of Elkins. At two points during the investigation, members of the Tennessee National Guard assisted the officers with the loan of a thermal imager and personnel. On August 6, 1999, Livingston and other personnel used the thermal imager at 139/155 Scott Street and 146 Neil Street. Livingston testified that it was possible that he obtained a heat indication but that they had to cease operations because they were apparently spotted by someone. On the evening of August 20, 1996, the thermal imager was used by Hoing, Bell, and Livingston at fc Scott Street and 146 Neil Street. A positive heat indication was received for 146 Neil Street. After Smith took Bell and Livingston to 2896 Walnut Grove, the thermal imager was used there, also. A police helicopter, also equipped with a thermal imager, flew over 2896 Walnut Grove and reported a positive heat signature. The building at 2896 Walnut Grove had razor-wire around part of the top of it and had a number of shiny aluminum vents or ducts on top of it. The officers testified that they observed light originating from inside the building reflecting from the ducts or vents. There was a light on top of the exterior of the building over the location of a PVC pipe on the east wall. There were “No Trespassing” signs on the building. On the east side of the building was a worn path apparently used to gain access to an apartment building behind the Elkins property. Bell observed a PVC pipe protruding from the east side of the building, about two-three feet up from the ground, with bright light emitting from a gap, approximately an inch wide, around the pipe. Bell testified that prior to bending down and looking through the gap around the PVC pipe, he did not smell any marijuana. Bell testified that through the gap he could see marijuana plants, and he could hear ballasts. Livingston also saw the light from the gap around the pipe and testified that he could smell a strong odor near the pipe, which he could not identify, and that he could see green leaves through the gap. Hoing testified that he came over to 2896 Walnut Grove on Bell’s request and made the same observations as Bell. Bell and Livingston walked the exterior of the building using the thermal imager to gain a heat signature. Across the street from 2896 Walnut Grove was an MLG & W power sub-station which-was emitting electrical noise. There were also power lines next to 2896 Walnut Grove. Bell admitted that he heard ballasts from the power station but was able to distinguish that sound from the sound of the ballasts emitting from inside the building. Bell believed that the ballasts in the building were evidence of an indoor growing operation. Bell acknowledged, however, that ballasts do have commercial applications besides powering high wattage lights used to grow marijuana. In the early morning on August 21, 1996, around 8:00 or 9:00 a.m., Officers Gary, Hoing, and Cicinelli approached the Elkins’ residence at 1270 Tutwiler to question the Elkins about the possible marijuana grow at 155 Scott Street. Carol Elkins invited the officers inside and gave them a tour. The officers obtained permission from Carol Elkins to search 1270 Tutwiler and 155 Scott Street. The officers testified they smelled the strong odor of marijuana in the Elkins home. James Elkins gave the officers permission to search the Scott Street properties and then led them to Scott Street. The officers left Carol Elkins at 1270 Tutwiler and did not leave an officer at the house to secure it or watch Carol Elkins. En-route to 155 Scott Street, James Elkins took a circuitous route. On arrival, the police officers searched 155 Scott Street and found nothing. There were several people inside, including a former Memphis police officer, Mike Williams. After searching 155 Scott Street, the officers asked James Elkins if they could search 139 Scott Street. El-kins’ affidavit indicates that he initially resisted the request although the officers testified that he verbally agreed to the search of 189 Scott Street. The officers and James Elkins then exited 155 Scott Street and proceeded to 139 Scott Street. Elkins testified that Hoing had hold of him by the arm and was guiding him. Upon exiting 155 Scott, the officers observed a Cadillac next to James Elkins vehicle. The Cadillac was identified as the one belonging to Carol Elkins seen at 1270 Tutwiler that morning. The officers testified that they asked James Elkins to unlock the door to 139 Scott Street. Elkins indicates that the officers were becoming loud and excited. He tried several keys, none of which fit the lock. Elkins told the police that his wife had the key. He then knocked on the door at 139 Scott Street and called to hi& wife to open the door. Elkins and the officers then went to the side door of 139 Scott Street and Carol Elkins opened the door. The officers and James Elkins went inside. The officers stated that they could then smell the odor of marijuana inside 139 Scott Street. They also observed and found laundry detergent, chemicals, fertilizer, scales, piping, large plastic bags, and ledger sheets. Some of the plastic bags contained the remains of marijuana plants. A search of the cabinets inside 139 Scott Street yielded several metal trays which contained marijuana. One of the officers testified that the amount of marijuana was approximately two pounds. The officers searched the attic space of 139 Scott Street and found a number of lights which could be used in the growing of marijuana. At some point during the search, the officers determined that there was a void between 139 Scott Street and 155 Scott Street, indicating the presence of a secret room. Elkins confirmed the existence of a secret room to which there was no entry. He advised that a hole would have to be knocked in the wall to gain entry. The officers then started to knock a hole in the wall but Elkins directed them to another spot in order to preserve the integrity of the space. Inside the secret room the officers discovered an elaborate system of lights, pots, vats, tubing, fans, and other paraphernalia typically used in a marijuana grow. Marijuana leaves were strewn about the room. After the search of 139/155 Scott Street, the officers asked for permission to search 146 Neil Street. Elkins declined and asked to speak with his attorney. Elkins then attempted to contact his attorney without success. Elkins then advised the officers to “do what [they] had to do.” Hoing testified that at the point marijuana was found at Scott Street, the Elkins were under arrest, although there is uncertainty as to exactly when they were placed in handcuffs and into a cruiser. The officers testified that James Elkins then offered them the key to 146 Neil Street and 2896 Walnut Grove, asking that they not damage the property. James Elkins, however, testified that the keys were taken from him after he was handcuffed and placed in the cruiser. Apparently, he also told the police about a garage door opener to 146 Neal Street over the visor of his car. The Elkins were then transported to the station about 11:00 a.m. and the officers began to prepare the warrants for the 146 Neil Street, 1270 Tutwiler, and 2896 Walnut Grove locations. The officers finished typing the warrants about 3:00 p.m. and obtained a judge’s signature at approximately 4:00 p.m. During this time period, Bell and Captain Livingston were surveilling 2896 Walnut Grove, while waiting for a warrant. At approximately noon, they observed two Hispanic males drive up to 2896 Walnut Grove. The officers then drove up to the budding to detain the two men, when one of the Hispanics exited the car and entered the building. The officers claimed that the detention was to prevent the possible destruction of evidence. As they took custody of the one still outside, the man who went inside exited the building, saw the detention, went back inside, and locked the door. The officers on the scene, fearing the destruction of evidence, called for back-up and contacted an experienced state prosecutor to ascertain whether they could enter the building and detain the other person. They were advised that they should enter the building to detain the man but then exit and wait for the warrant. They were also advised that they could not use anything they saw in the building in the warrant application. Bell testified that he made no observations, visual or auditory, that indicated evidence was being destroyed. The officers subsequently forced the door and seized not only the original man they viewed, but three other men. After detaining the individuals, the officers exited the building. While inside, they observed a large quantity of marijuana and two shotguns. The officers then learned that there may still have been two other men in the building. They went back in but could not locate them, so they called for a dog. The dog arrived and the officers went back into the building. They found and detained two other men who had apparently been hiding in the ceiling. At that point, they exited the building to wait for the warrant. Once the warrant arrived, a search was conducted of the building. A large quantity of marijuana (approximately 1300 marijuana plants) and growing equipment, including 158 high intensity bulbs, was seized. Gary took a team of officers to 146 Neil Street to execute the warrant for that address. After knocking on the door and receiving no answer, the officers entered and discovered a marijuana grow consisting of 320 live marijuana plants and 700 .hanging plants. A short time later, an Hispanic man was observed looking through a hole in the wall. The officers went through the hole, arrested two men in a living area, and also found a shotgun and a crossbow. Cicinelli went to 1270 Tutwiler with some other officers to execute the warrant for that address on August 21, 1996. In the course of the search, the officers found a dormant grow in the attic, four pounds of marijuana inside a wall in a plastic bag, $24,000 cash in a box in the master bedroom, and about 253 grams of cocaine in a bucket on the stairway to the attic. This search was videotaped by the police. On August 22, 1996, Officers Tate and Davidson of the Memphis Police Department were dispatched to 1270 Tutwiler to obtain numbers from off the house and to arrange for the towing of the cars that were located there. Tate testified that when they arrived he observed a pipe pro-trading from a cement retaining wall onto the sidewalk. The pipe appeared to lead to 1270 Tutwiler. Both Tate and Davidson testified that they, upon sniffing the pipe, smelled the odor of marijuana emitting from the pipe. As a result of Tate’s observations another affidavit in application for a warrant to search 1270 Tutwiler was completed by Tate and Lieutenant Oliver of the Memphis Police Department. Oliver admitted that he relied on Tate’s credibility in preparing the affidavit. The second search warrant for 1270 Tut-wiler was based on the alleged smell of marijuana from the pipe in the retaining wall. The police thought that there might be another hidden compartment containing a marijuana grow at the house. The police utilized the proprietor of a company specializing in hidden safes to determine if a hidden compartment existed. The search yielded no such additional secret room. ISSUES The Elkins present five issues to the court: 1) whether the use of a thermal imager constitutes a search within the scope of the Fourth Amendment; 2) whether the police established that James Elkins voluntarily gave his consent for the search at 139 Scott Street; 3) whether exigent circumstances existed for the police to enter 2896 Walnut Grove without a warrant; 4) whether the police violated the knock and announce rule prior to executing the search warrant at 146 Neil Street; and 5) whether the affidavits supporting the issuance of the warrants are valid. ANALYSIS During the course of the hearing, the court accepted expert testimony from Charles Stowall and Dr. Mark Driver, who testified for the United States and the Elkins, respectively, on, inter alia, the thermal imager and the HVAC system used at 2896 Walnut Grove. The court has examined the objections to the expert testimony raised by both Elkins and the United States and declines to reconsider its previous holdings on the matter. The court will now address the issues, seria-tim. Issue 1—Thermal Imagery and the Fourth Amendment The court will first address the issue of whether the use of a thermal imager constitutes a search within the scope of the Fourth Amendment. The Fourth Amendment protects a person’s reasonable expectation of privacy against government intrusion under the test enunciated in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), which was subsequently formally adopted in Smith v. Maryland, 442 U.S. 735, 739-41, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). See also California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); United States v. Padin, 787 F.2d 1071, 1075 (6th Cir.1986). The test is based upon a reasonable expectation of privacy and consists of the following two prongs: 1) the defendant must exhibit a subjective expectation of privacy and 2) the expectation must be objectively reasonable. If a person’s reasonable expectation of privacy has been infringed by the action of the government, then a search, for purposes of the Fourth Amendment, has occurred. Unless some recognized exception exists, a warrant must be obtained prior to conducting a search. In the instant case, the government used a thermal imager to monitor several of the defendant’s properties. A thermal imager has the capability of measuring heat gradients or, in other words, the difference in surface temperatures between objects or different parts of the same object (ie., a wall). Essentially, it is a sophisticated heat sensor. The testimonial evidence presented at the hearing indicated that the thermal imager used in this case did not have the capability to “penetrate” the walls of buildings and reveal, with any degree of accuracy, specific activities occurring inside. Most of the circuits ruling on this-issue to date have held that use of a thermal imager does not constitute a search within the meaning of the Fourth Amendment. See United States v. Kyllo, 190 F.3d 1041 (9th Cir.1999); United States v. Robinson, 62 F.3d 1325 (11th Cir.1995), cert. denied, 517 U.S. 1220, 116 S.Ct. 1848, 134 L.Ed.2d 949 (1996); United States v. Ishmael, 48 F.3d 850 (5th Cir.1995), cert. denied, 516 U.S. 818, 116 S.Ct. 74, 133 L.Ed.2d 34 (1995) (though the defendants had a subjective expectation of privacy, the use of a thermal imager was not unreasonable because it did not disclose intimate details or intrude in to the privacy of their premises); United States v. Myers, 46 F.3d 668 (7th Cir.1995), cert. denied, 516 U.S. 879, 116 S.Ct. 213, 133 L.Ed.2d 144 (1995) (defendant had no reasonable expectation of privacy in heat emitted from his residence); United States v. Pinson, 24 F.3d 1056 (8th Cir.1994), cert. denied, 513 U.S. 1057, 115 S.Ct. 664, 130 L.Ed.2d 598 (1994). The basis of the Myers case was the Indiana State Police’s use of a thermal imager on the defendant’s residence. Based upon the positive heat readings detected by the thermal imager, in conjunction with a high utility bill, the lack of trash left in front of the defendant’s residence, and a suspicious purchase by the defendant, the State Police obtained a warrant to search his residence, which resulted in the discovery of a marijuana grow. Myers, 46 F.3d at 668-69. The defendant moved to suppress the evidence. The Myers court held that the defendant had no reasonable expectation of privacy as the defendant had failed to try to conceal the heat and the heat constituted “waste,” analogous to garbage left at the curbside or smoke rising from a chimney or odors emanating from luggage. Id. at 670. Further, the Myers court held that the use of the thermal imager did not intrude in any way into the sanctity of the home, nor did it affect the intimacy, personal autonomy, and home privacy interests of the defendant. Id. The underlying facts of Pinson were similar in that an aerial thermal imager was used on a residence and its use challenged by the defendant. The holding of Pinson was almost identical to Myers, except for the wording of the decision. Pin-son, 24 F.3d at 1058-59. Indeed, the Myers court cited to Pinson and used the same reasons in justifying its decision. The facts in Robinson were also similar in that an aerial imager was used on a residence to establish probable cause for a search warrant for marijuana. The defendant’s motion to suppress the evidence was denied. The Eleventh Circuit, upholding the use of a thermal imager as constitutional, also relied on the waste heat posture, noting that the defendant had failed to take any steps to reduce the heat emitted from his house. Robinson, 62 F.3d at 1328-29. Further, the Robinson court analogized the use of a thermal imager, for Fourth Amendment purposes, to the use of drug-detection dogs. The circumstances in Ishmael were somewhat different. A thermal imager was used to support an application for a search warrant for marijuana. It was not used on the defendant’s residence but on an adjacent building. Its use was challenged by the defendant. The Fifth Circuit held that the use of the thermal imager did not violate the Fourth Amendment because intimate details of activities within the home were not revealed. Ishmael, 48 F.3d at 855-56. The Kyllo court, upholding a search warrant of a residence based upon thermal imaging, employed similar reasoning that the use of a thermal imager was permissible because its use did not reveal detailed images of private activity within the home. Kyllo, 190 F.3d at 1047. However, it should be noted that both the Ishmael and Kyllo courts discussed the use of advanced technology potentially violating the Fourth Amendment. See also Dow Chemical Company v. United States, 476 U.S. 227, 238-39, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986). The concern of the Fifth and Ninth Circuits on the issue of technological capability in the context of the Fourth Amendment was thoroughly addressed in a decision of the Tenth Circuit, which was overruled on other grounds. United States v. Cusumano, 67 F.3d 1497 (10th Cir.1995), vacated on other grounds, 83 F.3d 1247 (10th Cir.1996) (en banc). Cusumano addresses whether the war-rantless use of a thermal imager to detect heat emanations from a defendant’s residence is a search under the Fourth Amendment. The Cusumano court opined that the thermal imager did not detect “waste heat.” Rather, the device measures heat differentials and creates a heat signature. Id. In Cusumano, the court stated that other circuits upholding the use of a thermal imager had misframed the question. The inquiry should be focused on the object of the government’s inquiry and not on the tools that the government employs to obtain information. Thus, the pertinent inquiry should not be whether the defendants have an expectation of privacy into the waste heat radiated from their homes, but whether they have an expectation of privacy in activities within their homes, which may very well be revealed by heat signatures. Id. at 1502. The court presented an extensive analysis of the dangers of technological advances to the Fourth Amendment and privacy. The court opined that although thermal imaging, in its current state of advancement as employed in this case (and the instant matter), arguably cannot reveal specific details of particular activity within a home, the interpretation of the data that is obtained through the use of the thermal imager can reveal activities for which defendants would have a reasonable expectation of privacy. Id. at 1504 n. 11 and 1505 n. 14. Thus, the focus of the analysis should not be on how intrusive the means of gathering the information (i.e., the search) but on the object of the search (i.e., the activity within the home). Technology, the court noted, no matter how passive or non-intrusive, can still constitute a violation of a reasonable expectation of privacy. Id. at 1503. The government may not use technological innovations to encroach upon the reasonable expectation of privacy within the home. Id. at 1505. In contrast, the decisions of the other circuits seem to focus on what activity is being protected (ie., intimacy). Cusumano, however, focuses on the fact that the activity is occurring within the home, which is one of the touchstones of the Fourth Amendment. Thus, focusing on the requirement of a reasonable expectation of privacy, it would seem to follow that, depending upon the circumstances, the use of a thermal imager may or may not be permissible under the Fourth Amendment. It is instructive to acknowledge that the Cusumano court warned against allowing the rights protected by the Fourth Amendment to fall victim to a technological race between the government and the people, as this is a race the people shall most certainly lose. Id. at 1504. Indeed, with the advancements in technology today, the court noted that to rule otherwise would require every individual, to maintain his privacy and protect against government incursions, to employ a plethora of advanced technological protections. Id. at 1503. Such a ruling would be unreasonable for all but the most wealthy and would be anathema to the Fourth Amendment. Indeed, as Justice O’Connor has stated, the people should not be required to take more than customary precautions to maintain their privacy. Florida v. Riley, 488 U.S. 445, 454, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989) (O’Connor, J., concurring). The first prong of the reasonable expectation of privacy test is whether the defendant had a subjective expectation of privacy. Katz, 389 U.S. at 361, 88 S.Ct. 507; Smith, 442 U.S. at 740, 99 S.Ct. 2577. See also United States v. Padin, 787 F.2d 1071, 1075 (6th Cir.1986). In this matter, it is apparent that the Elkins had a subjective expectation of privacy in the activity occurring inside the buildings. The marijuana grows were inside the buildings, beyond the scope of prying eyes. The locations were secured and posted with “No Trespassing” signs. Indeed, Elkins took the additional security precaution of hiring off-duty police officers. Thus, it would seem that the first prong of the test has been met. However, whether Elkins had a subjective expectation of privacy in the heat signature created by heat emanating from the building must also be examined. Other circuits have held that the first prong of the test is not met with regard to the “waste” heat detected by the thermal imager. See, e.g., United States v. Robinson, 62 F.3d 1325 (11th Cir.1995), cert. denied, 517 U.S. 1220, 116 S.Ct. 1848, 134 L.Ed.2d 949 (1996). However, in accordance with the Cusumano decision, the court will focus its reasonable expectation of privacy analysis not on the method used by the government to obtain the evidence, the thermal imager, but on the object of the government’s search, the activity within the buildings. The rationale for this perspective is that the Fourth Amendment is intended to protect people, their effects, and their activities for which they have a reasonable expectation of privacy. As the heat signature on the outside of the buildings revealed basic information as to the activity occurring inside the building, albeit not a complete picture of the activity, it follows that the Elkins had a reasonable expectation of privacy in the heat signature concerning that activity. Thus, the first prong of the test has been met. The second prong of the test is whether society would objectively recognize the defendant’s subjective expectation of privacy as reasonable. Katz, 389 U.S. at 361, 88 S.Ct. 507; Smith, 442 U.S. at 740, 99 S.Ct. 2577. See also United States v. Padin, 787 F.2d 1071, 1075 (6th Cir.1986). Examining this situation with the focus on the object of the government’s search, the Elkins’ subjective expectation of privacy was objectively reasonable because the activity in question was within an elaborately secured building. As the buildings were not the Elkins’ home, but were his places of business, it could be argued that he had a lesser expectation of privacy. Nonetheless, the Fourth Amendment protections apply to the reasonable expectation of privacy therein, as explained, infra. The Supreme Court has traditionally granted great deference to the home as a place of refuge and sanctuary and has liberally applied the protections of the Fourth Amendment to it. See, e.g., United States v. Karo, 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984); Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). These Fourth Amendment protections have been traditionally extended to the “curtilage” which is the immediate area surrounding the actual home. United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987); Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L.Ed. 898 (1924). With regard to commercial facilities and the Fourth Amendment, curtilage is more problematic. The Supreme Court has recognized that there is a societally recognized reasonable expectation of privacy within the interior of commercial buildings, although there are exceptions which would normally not be applicable to residences, such as administrative warrants. Dow Chemical Company v. United States, 476 U.S. 227, 236, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986); See See v. City of Seattle, 387 U.S. 541, 545-46, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). Thus, concerning the Elkins’ buildings where the marijuana grows were located, it would appear that they had an objectively reasonable expectation of privacy as the grows were inside secured commercial buildings. Therefore, the Elkins have met the second prong of the test for determining whether their expectation of privacy is objectively reasonable. Katz, 389 U.S. at 361, 88 S.Ct. 507; Smith, 442 U.S. at 740, 99 S.Ct. 2577. See also Unit ed States v. Padin, 787 F.2d 1071, 1075 (6th Cir.1986). Applying the reasonable expectation of privacy for the activity within the Elkins’ buildings to the use of the thermal imager, the court must conclude that it was a search within the scope of the Fourth Amendment. The use of the thermal imager revealed information about the activity inside the buildings which the Elkins had reasonably attempted to conceal from prying eyes. As the police did not have a warrant nor exigent circumstances, the use of the thermal imager must be held to be an improper search. It may be argued that the use of the thermal imager only legitimately enhances the natural abilities of the police to observe what normally exists {%.&., heat radiations) and is, therefore, permissible. The court does not dispute that certain enhancements of natural abilities are proper in the scope of law enforcement. See, e.g., Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion) (holding that the use of binoculars to enhance vision is constitutional). See also United States v. Booker, 461 F.2d 990, 992, (6th Cir.1972). However, heat radiations which are detected by a thermal im-ager are not normally viewable by the unaided naked eye. At least one recognized commentator argues that current law concerning the artificial extension of human senses by technical means indicates that such an extension is a search within the meaning of the Fourth Amendment. See 1 Wayne R. Lafave, Search and Seizure § 2.2(d) (West 1996 & Supp.1999) (citing, in support, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Epperson, 454 F.2d 769 (4th Cir.1972) (holding that the use of a magnetometer in certain circumstances is a search within the meaning of the Fourth Amendment); and State v. Young, 123 Wash.2d 173, 867 P.2d 593 (1994) (holding that the use of a thermal imager is a search under the Fourth Amendment because it gathers information about the home that could not be gathered with the naked eye)). This principle is reinforced by a decision of the United States Supreme Court which held that merely tracking the location of an electronic beeper within the confines of a residence violated the reasonable expectation of privacy guaranteed by the Fourth Amendment. United States v. Karo, 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). The information which can be gathered by a thermal imager is at least as qualitatively intrusive as that relayed by the location of an electronic beeper. If technological artificial extensions of the human senses are permissible, then the door would be opened to allow technological advancements which permit a person to listen to a conversation in a closed room without violating the Fourth Amendment. This danger is demonstrated by the fundamental inconsistencies between holding that the gathering of excess sound emanations (ie., by wiretaps, etc.) is unconstitutional while the gathering of excess heat radiations (ie., by thermal imagers) is not. Other decisions, decided years ago when thermal imagery technology was not nearly as advanced as it is today, recognized that the data gathered by thermal imaging does not focus on just illegal activity or contraband but reveals a host of mundane and otherwise legal activities. See, e.g., United States v. Cusumano, 67 F.3d 1497 (10th Cir.1995), vacated on other grounds, 83 F.3d 1247 (10th Cir.1996) (en banc); United States v. Field, 855 F.Supp. 1518 (W.D.Wis.1994). History has proven, time and again, that law enforcement will employ intrusive technology until a definitive guideline has been established. See, e.g., Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), overruled by, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Technological advancements cannot be allowed to defeat the protections of the Bill of Rights. It may be argued that this holding will prevent law enforcement from ever using a thermal imager when it is needed. This argument must be balanced against traditional constitutional protections of the Fourth Amendment. Where the government seeks to capture a heat signature for law enforcement purposes in the face of a reasonable expectation of privacy (e.g., a home), the police will simply have to obtain a warrant. This is far from an onerous requirement. Such a requirement will inhibit the indiscriminate use of thermal im-agers and lend substance to the Fourth Amendment. In the instant matter, it is evident that Elkins had a reasonable expectation of privacy in the buildings in question and in the heat signature created by heat emanating from the building. Having found that the use of a thermal imager constitutes a search, the warrant requirement applies. It is undisputed that the police did not obtain a warrant for the use of the thermal imager. Accordingly, any evidence obtained exclusively by the use of the thermal imager will be suppressed. Moreover, any testimony regarding thermal imaging is excluded from the trial as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Issue 2—Voluntary Consent of Elkins to Search 139 Scott Street The second issue raised by Elkins is whether his consent to the search at 139 Scott Street was voluntary. It is well established law that a search may be conducted without a warrant if a person with a privacy interest in the area to be searched voluntarily consents. Schneckloth v. Bustamante, 412 U.S. 218, 219-22, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Riascos-Suarez, 73 F.3d 616, 625 (6th Cir.1996). To be voluntary, consent must be unequivocal, specific, and intelligently given, and must be free from duress or coercion. Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041; United States v. Scott, 578 F.2d 1186, 1188-89 (6th Cir.1978), cert. denied, 439 U.S. 870, 99 S.Ct. 201, 58 L.Ed.2d 182 (1978). In the instant matter, the court finds that Elkins had a privacy interest in 139 Scott Street and has standing to contest the search. The issue for the court is whether from the totality of the circumstances Elkins voluntarily consented to the search of 139 Scott Street. Whether consent is voluntary is measured by considering the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); United States v. Guimond, 116 F.3d 166, 170 (6th Cir.1997). Thus, determination of voluntariness depends upon the facts in each situation. See United States v. Scott, 578 F.2d 1186, 1188-89 (6th Cir.1978), cert. denied, 439 U.S. 870, 99 S.Ct. 201, 58 L.Ed.2d 182 (1978). However, the burden of demonstrating voluntariness is upon the government. The United States argues that, under the totality of the circumstances, El-kins should be deemed to have consented to the search of 139 Scott Street. The government presented unrebutted proof that on August 21, 1996, police officers went to the Elkins’ home and advised James Elkins that they were investigating a complaint about an indoor marijuana grow at his Scott Street properties. The officers asked Elkins for permission to search and he advised them that “they could look anywhere they wanted to.” El-kins then drove them to the Scott Street property and admitted them. The government argues that Elkins’ initial general agreement to a search, Elkins’ active cooperation in the search after arrival at the premises, Elkins’ knowledge of his right to refuse consent to search, and the absence of coercion, evince that Elkins voluntarily consented. Concerning the first factor, the initial general agreement to search, the court must weigh this factor in favor of Elkins. The United States cites several examples of testimony by the police officers which relate how they spoke with Elkins at his residence at 1270 Tutwiler prior to going to 139 and 155 Scott Street to obtain his permission to conduct the searches. However, an examination of the cited testimony shows that the police officers were less than certain as to which addresses were discussed in the conversation with Elkins. Indeed, the testimony indicates that specific permission was only given to search 155 Scott Street at that time. However, the officers testified that after they searched 155 Scott Street, they told Elkins they wanted to search 139 Scott Street. Elkins then attempted to admit them and, ultimately, instructed his wife to open the door and admit the officers. Three of the officers testified that Elkins verbally gave his permission to search 139 Scott Street. Elkins does not directly contest this point, but does argue that there were factors, including the excitement and the demands of the police resulting in fear for his wife’s safety, which invalidate his consent. However, he did not press these arguments. Thus, as a prima facie matter, it appears that Elkins initially agreed to the search of 139 Scott Street. Concerning the second factor, Elkins’ active cooperation during the search, the testimony of the police officers indicates that he actively cooperated in the search of 139 Scott Street. Elkins apparently attempted to unlock the door with his keys and he called to his wife inside 139 Scott Street to open the door. She eventually opened the side door to 139 Scott Street and let Elkins and the officers inside. Further, the testimony of the police indicates that Elkins then admitted to the police officers that there was a secret room inside 139 Scott Street and, in order to preserve the integrity of the front portion of the room, showed them where to knock a hole in the wall to gain entry. Elkins did not contest these points in his testimony at the hearing. These facts further support the argument of the United States that Elkins voluntarily gave his consent to search 139 Scott Street. However, it appears that Elkins only admitted to the existence of the secret room and showed the officers where to knock a hole in order to minimize damage to the structure. El-kins’ actions occurred after it was apparent that they were going to break through the wall with or without his cooperation. Thus, Elkins’ alleged cooperation is not as complete as the United States suggests. The court acknowledges the affidavit of James Elkins submitted with his Franks motion which indicates that his consent was not freely given. The affidavit indicates that Hoing took him by the arm and led him to 139 Scott Street and that the officers were becoming loud and agitated and demanded entry to 139 Scott Street because Carol Elkins’ car was now in front of it. Thus, there is some indication of coercion. James Elkins’ claimed that he feared for his wife’s safety because of the officers’ change in attitude. However, this alleged fear for his wife’s safety is not reasonable as it is not supported by any evidence in the record. The record is devoid of any evidence that Elkins was not aware of his right to refuse consent. Indeed, Elkins’ subsequent refusal to consent to a search of 146 Neil Street demonstrates his awareness of his rights. The totality of the circumstances test is just what it says. The court considers a wide range of factors, not just factors which favor the police or which favor El-kins. In this matter, the credibility of Hoing, as demonstrated by the obvious inconsistencies in his testimony throughout this situation, undermines the position of the government. Notwithstanding this problem, the indisputable facts that Elkins told the officers where to penetrate the wall in order to gain access to the hidden room, and that Elkins gave an initial consent which was never revoked, cause this court to find that Elkins’ consent to the search was voluntary. The fact that El-kins’ alleged consent was not taped (even though at least parts of the search of 139 Scott Street were taped and • photographed) and the fact that no written “Consent to Search” forms were used do not negate the consent. Considering all the factors, the court concludes that James Elkins had standing to consent and did voluntarily give his consent to search 139 Scott Street. Accordingly, the evidence seized at 139 Scott Street was properly seized pursuant to the consent exception to the warrant requirement and therefore is admissible at trial. The defendants’ motions to suppress, therefore, are denied as to the 139 Scott Street search. Issue 8—Exigent Circumstances at 2896 Walnut Grove The third issue raised by the Elkins is whether exigent circumstances existed for the police to enter 2896 Walnut Grove without a warrant. A warrantless search based upon probable cause is permitted when there is some exigency or a compelling urgency for the protection of the police or the public, or to prevent the destruction of contraband or evidence. The Supreme Court has said that warrant-less entries and searches are permitted when: 1) the officers reasonably believe that someone is in immediate need of assistance, 2) to protect life or to preserve life, or 3) to avoid serious injury. Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). However, the Supreme Court has characterized exigent circumstances for the preservation of evidence of a crime as a “now or never” situation. Roaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). There is a two prong test to determine if a warrantless entry is justified to prevent the destruction of evidence: 1) the police must have a reasonable belief that third parties are inside the building and 2) the police must have a reasonable belief that loss or destruction of evidence is imminent. United States v. Bates, 84 F.3d 790, 796 (6th Cir.1996); United States v. Radka, 904 F.2d 357, 362 (6th Cir.1990). See also United States v. Gaitan-Acevedo, 148 F.3d 577, 585 (6th Cir.1998). The mere possibility of the loss or destruction of evidence is not sufficient to justify war-rantless entry based upon exigency. Further, the fear of destruction of evidence must include the fear that it would be destroyed before a warrant could be obtained. United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988). The police bear the burden of demonstrating probable cause that the destruction of evidence was imminent. Gaitan-Acevedo, 148 F.3d at 585 n. 4 (citing United States v. Straughter, 950 F.2d 1223, 1230 (6th Cir.1991) and United States v. Padro, 52 F.3d 120, 122-23 (6th Cir.1995)). The standard is objective and the unreasonable beliefs of the police will not be considered justification for warrantless entry. Sangineto-Miranda, 859 F.2d at 1512. Some evidence of the likely imminent destruction of evidence must be presented. Bates, 84 F.3d at 796-97; United States v. Morgan, 743 F.2d 1158, 1163 (6th Cir.1984). As an initial matter, there is no doubt that the police suspected that criminal activity was occurring inside the building, based upon their earlier observations of marijuana plants through the hole around the PYC pipe and the odor of marijuana emitting from it. However, in this decision, infra, the court holds that the police did not have probable cause- to initially search the property at 2896 Walnut Grove for evidence of criminal activity. Thus, under the fruit of the poisonous tree doctrine, the police did not have probable cause to believe that evidence was present, let alone that the destruction of evidence was imminent. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Thus, the Elkins’ challenge to the warrantless entry at 2896 Walnut Grove has merit, albeit on a different ground than he presented. However, additionally and in the alternative, assuming, arguendo, that the police presence was proper, the court also holds that the police lacked exigent circumstances for their initial entry into 2896 Walnut Grove. This is the argument that Elkins presented in his brief. The police officers on the scene at 2896 Walnut Grove were waiting for other officers to obtain a warrant to search the premises. While waiting, they observed two Hispanic men drive up to the building. One of them went inside and the officers detained the one still outside. The one who had gone inside returned outside, observed the detention, and went back inside and closed and locked the door. The United States claims that at that time, exigent circumstances existed for the officers to enter and detain the man still inside in order to prevent the possible destruction of evidence. The essential question is whether the police had probable cause to believe that the loss or destruction of evidence was imminent. ' There is no dispute that they have met the first element of the test, that third parties were in the building. However, the second prong of the test, the reasonable belief of the imminent destruction of evidence, is another matter. United States v. Bates, 84 F.3d 790, 796 (6th Cir.1996); United States v. Radka, 904 F.2d 357, 362 (6th Cir.1990); United States v. Gaitan-Acevedo, 148 F.3d 577, 585 (6th Cir.1998). Bell admitted in testimony that he had no evidence of any imminent destruction of evidence occurring inside 2896 Walnut Grove after the first man returned inside and locked the door. Some evidence of the imminent destruction of evidence is an essential element to meeting the second prong of the test to establish that the officers had a reasonable belief (ie., probable cause) to enter the building. See United States v. Gaitan-Acevedo, 148 F.3d 577, 585 n. 4 (6th Cir.1998) (holding that the government has the burden of demonstrating probable cause that the destruction of evidence is imminent) (citing United States v. Straughter, 950 F.2d 1223, 1230 (6th Cir.1991) and United States v. Padro, 52 F.3d 120, 122-23 (6th Cir.1995)). The time when the police first believed that probable cause as to the destruction of evidence existed is crucial to resolving this issue. The reasonableness of an officer’s actions must be judged at the time of the decision and not in hindsight. United States v. Korman, 614 F.2d 541, 544 (6th Cir.1980), cert. denied, 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 808 (1980). Bell testified that he initially detained the first man outside the building because he feared that evidence would be destroyed. Thus, it is to this point in time that the analysis of probable cause must be applied. Bell admitted that he had no evidence that the destruction of evidence was imminent. Further, there was no evidence which showed that the two men were initially aware of the police nor any evidence that they were aware of the searches of the other buildings, the arrests of the El-kins, or that the police were even aware of any criminal activity inside the building. At that moment, there was no reasonable cause to fear the imminent loss or destruction of evidence in the building and, thus, there was no reason to detain the first man. It might be argued that at the moment the second man exited the building and saw the detention of the first man, exigent circumstances then existed to conduct the warrantless entry into the building and detain the man who had just gone back inside. However, as previously noted, the initial detention of the first man was not warranted. Thus the police essentially improperly created any possible exigent circumstances caused by the second man’s viewing of the seizure of the first man. It is well-established law that the police cannot create exigent circumstances. United States v. Morgan, 743 F.2d 1158, 1163 (6th Cir.1984). Even if the man still inside the building had identified the police, there was still no evidence, by the police officer’s own admission, indicating that evidence was being destroyed. The police argue that they feared that the man in the building would burn it. However, this is sheer speculation. There is no evidence to support this fear and, in the context of the Fourth Amendment, the police are not allowed to act on speculation. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Indeed, this claim merely detracts from the credibility of the testifying police officers. The known presence of the police outside, combined with the presence of third parties inside with possible contraband, does not result in the conclusion that the destruction of evidence was imminent. The police have failed to show the requisite “now or never” nature of the situation required to justify warrantless entry to prevent the imminent destruction of evidence. Roaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). See also United States v. Morgan, 743 F.2d 1158, 1163 (6th Cir.1984) (recognizing that there must be a need for immediate police action (emphasis added)) (citing Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)). Thus, the initial warrantless entry of the police into the building to prevent the imminent destruction of evidence was not supported by probable cause and was not reasonable. For this reason and because probable cause as to the imminent destruction of evidence at the time of the initial stop of the first man outside 2896 Walnut Grove did not exist, the court must hold that the warrantless entry of the police into 2896 Walnut Grove was improper and all evidence gained by it must be suppressed. Issue I—Violation of the Knock and Announce Rule at 1J/.6 Neil Street The fourth issue raised by the Elkins is whether the police violated the knock and announce rule prior to executing the search warrant at 146 Neil Street. The general rule is that the failure of the police to knock and announce their presence prior to executing a search warrant will render any evidence gained during the ensuing execution of that warrant inadmissible. Wilson v. Arkansas, 514 U.S. 927, 931-32, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995); United States v. Bates, 84 F.3d 790, 794-95 (6th Cir.1996). There are a number of exceptions to this rule. One of these exceptions applies when the building being searched is a commercial establishment. United States v. Francis, 646 F.2d 251, 258-59 (6th Cir.1981). An issue to be considered in the context of the knock and announce rule and commercial establishments is whether the owner was inside the building at the time of search. If he is not present, he will not have standing to dispute a violation of the rule. Id. In this matter, it is undisputed that the Elkins were not present inside 146 Neil Street at the time the search warrant was executed. Further, it is undisputed that 146 Neil Street was not the Elkins’ residence and that it is more accurately characterized as a commercial building. Thus, he does not have standing to raise the issue of whether the police complied with the knock and announce rule for the search at 146 Neil Street. Therefore, this claim of the Elkins must be denied. Issue 5—Validity of the Affidavits Supporting the Warrants Finally, based on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Elkins attack the validity of the affidavits by the police officers which supported the issuance of the warrants for the searches. In Franks, the Supreme Court held that a defendant may seek suppression of evidence on the basis that the affidavit for a warrant included deliberate falsehoods, or included misinformation or omitted material information with a reckless disregard for the truth. Id. There is a two prong test concerning the suppression of evidence based upon false statements in a supporting affidavit: 1) whether the defendant has proven that the affidavit contains deliberately or recklessly false statements and 2) whether the affidavit, without the false statements, still provides the requisite probable cause to uphold the warrant. United States v. Charles, 138 F.3d 257, 263 (6th Cir.1998) (citing Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). In a Franks hearing, the defendant must demonstrate by a preponderance of the evidence that the challenged statements in the affidavit were either intentionally false or made with reckless disregard for the truth. See United States v. Cummins, 912 F.2d 98, 101 (6th Cir.1990). Further, the misrepresentations must be shown to be material. Id. Finally, the remaining statements in the affidavit should be evaluated under the standard of the totality of the circumstances test. United States v. Atkin, 107 F.3d 1213, 1216 (6th Cir.1997) (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The Franks inquiry should turn on what was in the government’s affidavits, not on what the defendant asserts with hindsight and that the government should have known. United States v. Ozar, 50 F.3d 1440, 1445-46 (8th Cir.1995). When facts critical to the existence of probable cause have been omitted from a warrant application, a Franks hearing may be required. Mays v. City of Dayton, 134 F.3d 809, 815-16 (6th Cir.1998). However, omissions are not granted the same degree of consideration that material affirmative misrepresentations are given in consideration of a motion to suppress, and usually require some showing of an intent to mislead. Id.See also United States v. Martin, 920 F.2d 393, 398 (6th Cir.1990). A. Warrant for 2896 Walnut Grove Elkins raises numerous points to contest the warrant issued for 2896 Walnut Grove. Each point will be addressed in turn. Elkins’ first point is that the affidavit in question states that on August 20, 1996, the police obtained information that Elkins had a possible indoor marijuana grow at 2896 Walnut Grove. Elkins notes that it appears that the first time 2896 Walnut Grove came to the attention of the police as a possible location involved with Elkins was the night of August 20, 1996, when Martello spoke with Smith, an off-duty police officer, outside Scott Street. However, Bell admitted in testimony at the hearing that he had no information of indoor marijuana grow prior to arriving at 2896 Walnut Grove, when he was brought there by Smith. The evidence shows that Hoing arrived at 2896 Walnut Street after midnight on August 21, 1996, and it was Hoing who signed the affidavit. Thus, Hoing, the signatory of the affidavit, did not have knowledge of the possible grow at 2896 Walnut Grove until August 21, 1996, and not on August 20, 1996, as stated in the affidavit. The government contends this was a minor error of negligence. Standing alone, the error may very well have been minor. However, combined with the questions of credibility raised in this matter and the other problems with the supporting affidavit, the court disagrees with the government’s contention. Elkins’ second point is based on the fact that the affidavit uses the term “affiants” and