211 F.3d 166 (1st Cir. 2000), 99-1263, Bilida v McCleod

Docket Nº:99-1263
Citation:211 F.3d 166
Party Name:CLAIRE BILIDA, PLAINTIFF, APPELLANT, v. ANDREW MCCLEOD, IN HIS CAPACITY AS DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, OFFICER JEFFREY S. BELMONTE, OFFICER SHEILA DISARRO, DEPUTY CHIEF THOMAS GREENE, AND STATE OF RHODE ISLAND, DEFENDANTS, APPELLEES.
Case Date:May 05, 2000
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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211 F.3d 166 (1st Cir. 2000)

CLAIRE BILIDA, PLAINTIFF, APPELLANT,

v.

ANDREW MCCLEOD, IN HIS CAPACITY AS DIRECTOR OF THE DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, OFFICER JEFFREY S. BELMONTE, OFFICER SHEILA DISARRO, DEPUTY CHIEF THOMAS GREENE, AND STATE OF RHODE ISLAND, DEFENDANTS, APPELLEES.

No. 99-1263

United States Court of Appeals, First Circuit

May 5, 2000

Heard January 3, 2000

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[Copyrighted Material Omitted]

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John M. Verdecchia with whom Law Offices of John M. Verdecchia and Linda MacDonald-Glenn were on brief for appellant.

Brenda A. Doyle, Special Assistant Attorney General, with whom Sheldon Whitehouse, Attorney General for the State of Rhode Island, was on brief for appellees.

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Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge

Boudin, Circuit Judge.

The sad history of this section 1983 case began in or around 1988 when Claire Bilida rescued an orphaned raccoon thereafter named "Mia." Bilida and her family raised the raccoon as a pet and kept her in a cage attached to the back of the family's home in Warwick, Rhode Island. Mia lived there for seven years until she was seized and destroyed in August 1995 by the Rhode Island Department of Environmental Management ("the Department") in the episode that provoked this suit for violation of Bilida's constitutional rights.

On August 8, 1995, a Warwick police officer named Kenneth Brierly entered Bilida's backyard in response to a security alarm signal. While investigating the alarm, which proved to be false, Brierly saw Mia in her cage. Uncertain whether possession of the raccoon was legal, he called Nora Legault, the city's animal control officer, and then left the premises. A half hour or so later, Legault and Brierly returned to find Bilida at home. Legault asked Bilida for her permit from the Department, which is required under Rhode Island law for possession of raccoons and certain other animal species.1

Bilida told Legault that she had a permit but then was unable to produce one. Legault and Brierly departed and Legault returned to her office, called the Department, and discovered that Bilida did not have a permit. The Department then sent two of its officers (Jeffrey Belmonte and Sheila DiSarro) to Bilida's home where the officers--who had no warrant--entered Bilida's gated backyard and seized Mia after a struggle with Bilida. DiSarro then issued Bilida a summons for illegally possessing a raccoon but (according to Bilida) the officers promised her that Mia would not be killed.

Having taken the racoon, the officers then consulted with the deputy chief of the Department, Thomas Greene, and he in turn contacted Susan Littlefield, the state's public health veterinarian. Littlefield, after learning that Mia had been hand fed by Bilida, told Greene that according to the state's rabies protocol, Mia had to be euthanized and tested for rabies. The protocol, which was adopted in response to a supposed epidemic of raccoon rabies moving up the east coast in the early 1990s, calls for animals in certain high risk "target species" to be tested for rabies (which requires killing the animal) under specified circumstances.2 With no further word to Bilida, Mia was then shot, tested, and found to have no rabies infection.

Bilida was prosecuted in state court for the misdemeanor offense of possessing the raccoon without a permit. R.I. Gen. Laws § 20-1-16 (1998). In the state proceeding, Bilida obtained an evidentiary hearing on whether the final warrantless entry onto her property and seizure of the raccoon violated the Fourth Amendment made applicable to the states through the Fourteenth Amendment. The state court judge found that the officers had acted in good faith but also concluded that they had violated the Fourth Amendment because no exigent circumstances justified the warrantless entry and seizure of the already caged animal. Following the suppression

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order, the state abandoned the prosecution of Bilida.

Bilida filed her own complaint in the federal district court, naming as defendants the director of the Department, deputy chief Greene, the two officers who had made the seizure (Belmonte and DiSarro), veterinarian Littlefield (later dismissed by consent), and the State of Rhode Island. She asserted federal claims under 42 U.S.C. § 1983 for violations of her constitutional rights of "privacy," due process, and protection against unreasonable search and seizure.3 The complaint sought a declaration that Bilida's rights had been violated, punitive damages, and other unspecified relief.

In a thoughtful opinion, the district court granted the defendants' motion for summary judgment, holding that no federal right of privacy was violated; that the warrantless search and seizure were justified by the "plain view" exception to the warrant requirement; and that Bilida had no property interest in Mia to trigger a right to due process pertaining to Mia's treatment. Bilida v. McCleod, 41 F.Supp.2d 142 (D.R.I. 1999). The district court dismissed the state claims without prejudice. 28 U.S.C. § 1367(c)(3) (1994). On this appeal, Bilida's main arguments are that preclusion doctrine required a finding that the search and seizure were illegal and that in any event the district court erred in its legal rulings on the plain view and property issues.

Rhode Island law determines whether the state ruling in the criminal case is to be given preclusive effect in the federal action. 28 U.S.C. § 1738 (1994); Allen v. McCurry, 449 U.S. 90 (1980). In general, Rhode Island law requires for collateral estoppel ("issue preclusion" in modern terms) that the issue earlier determined must have been identical to the issue raised in the later action, actually litigated, and necessarily decided; that the prior proceeding resulted in a final judgment on the merits; and that the party against whom issue preclusion is asserted or someone with whom he is in privity was a party to the prior proceeding. State v. Jenkins, 673 A.2d 1094, 1096 (R.I. 1996); E.W. Audet & Sons, Inc. v. Firemen's Fund Ins. Co., 635 A.2d 1181, 1186 (R.I. 1994); see also Restatement (Second) of Judgments § 27 (1982).

We agree that the issue--the legality of the search and seizure--is the same in both cases, and it is no bar to preclusion that the rulings were made in different courts and that the prior case was criminal while the latter was civil. See Glantz v. United States, 837 F.2d 23, 25 (1st Cir. 1988). Whether a final judgment exists might be debated since we are dealing with an intermediate ruling that led simply to an abandonment of the prosecution, but Rhode Island may not be rigid as to this requirement, see State v. Presler, 731 A.2d 699, 702-04 (R.I. 1999). However, none of the defendants other than the State of Rhode Island was a party to the criminal proceeding, and we doubt that a Rhode Island court would deem those individual defendants in privity with the state insofar as they are now being sued in their individual capacities.

Although no Rhode Island case in point has been cited to us, most precedent indicates that individual state officials are not bound, in their individual capacities, by determinations adverse to the state in prior criminal cases. E.g., Kraushaar v. Flanigan, 45 F.3d 1040, 1050 (7th Cir. 1995); see generally 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4458, at 508 (1981). The reason is that the interests and incentives of the individual police or officials are not identical to those of the state, and the officers normally have little

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control over the conduct of a criminal proceeding.4 Thus, whether there was a violation remains an open issue.

We turn therefore to the merits. The Fourth Amendment protects against "unreasonable" searches and seizures and, broadly speaking, an unconsented-to, warrantless entry into the home by government agents is presumptively unreasonable--valid only if an exception to the warrant requirement applies. McCabe v. Lifeline Ambulance Serv., Inc., 77 F.3d 540, 544 (1st Cir.), cert. denied, 519 U.S. 911 (1996); see generally 1 LaFave, Search and Seizure § 2.3, at 465 (3d ed. 1996). Places adjacent to the home, known as "curtilage," have generally been subject to the warrant requirement so far as the government agent intrudes beyond areas (e.g., the path to the front door) where uninvited visitors are expected. See 1 LaFave, supra, § 2.3(f), at 504-09; Daughenbaugh v. City of Tiffin, 150 F.3d 594, 603 (6th Cir. 1998).

In general, this warrant requirement applies to civil as well as criminal searches, Soldal v. Cook County, 506 U.S. 56, 66-67 & n.11 (1992), and whether the entry is by the police or some other government official, Michigan v. Tyler, 436 U.S. 499, 504-05 (1978). Civil "administrative" entries and investigatory searches, especially into business premises, have sometimes been upheld based on a regulatory scheme in lieu of a judicial warrant. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987); United States v. Biswell, 406 U.S. 311, 314-15 (1972); McCabe, 77 F.3d at 545; see also 4 LaFave, supra, § 10.1(c). But the defendants have not relied upon such an administrative scheme in this case.5

The defendants argue in this case that the presumptive warrant requirement was overcome by linking together several settled exceptions. They claim, and the district court held, that the original entry of Officer Brierly was justified as an exigent circumstance, viz., the security alarm signal that he was investigating; that Mia was then noticed by Brierly and subject to a seizure without a warrant under the "plain view" doctrine; and that the later entry into the backyard by Belmonte and DiSarro and their seizure of the raccoon was an extension of Brierly's earlier entry and sighting of the raccoon and did not need to be independently supported by a warrant.

Warrantless entries are most...

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