Widgren v. Maple Grove Township

• Decision Date: 17 November 2005
• Docket Number: No. 04-2189.,04-2189.
• Citation: 429 F.3d 575
• Parties: Kenneth D. WIDGREN, Jr. and Kenneth D. Widgren, Sr., Plaintiffs-Appellants, v. MAPLE GROVE TOWNSHIP; H. Wayne Beldo; Louis Lenz, Jr., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 575

429 F.3d 575

Kenneth D. WIDGREN, Jr. and Kenneth D. Widgren, Sr., Plaintiffs-Appellants, v. MAPLE GROVE TOWNSHIP; H. Wayne Beldo; Louis Lenz, Jr., Defendants-Appellees.

No. 04-2189.

United States Court of Appeals, Sixth Circuit.

Submitted: November 10, 2005.

Decided and Filed: November 17, 2005.

COPYRIGHT MATERIAL OMITTED

ON BRIEF:

William L. Henn, Smith, Haughey, Rice & Roegge, Grand Rapids, Michigan, for Appellees. Kenneth D. Widgren, Jr., Warren, Michigan, Kenneth D. Widgren, Sr., Hazel Park, Michigan, pro se.

Before: MERRITT, MOORE, and SUTTON, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

This case presents the question whether certain housing code and property tax inspections of the exterior of a house within the "curtilage" in a remote rural setting constitute a "search" within the meaning of the Fourth Amendment. Balancing a number of factors regarding the Widgrens' reasonable expectation of privacy, we hold that the intrusions at issue are not Fourth Amendment searches, and we affirm the District Court's judgment in favor of the defendants on the parties' cross-motions for summary judgment.

I. Factual Background

Plaintiff Kenneth Widgren, Sr., solely owns twenty acres of largely undeveloped land in Maple Grove Township, Michigan.¹ Densely populated trees, hills and thick overgrowth cover much of the grounds. In May or June of 2002, Mr. Widgren, Sr., began construction of a house in the middle of his rectangularly shaped lot and weather-sealed the structure later that year. By the spring of 2003, the area immediately surrounding the house was cleared, routinely mowed and a clear line marked the perimeter of the mowed portion. The cleared area, which was not enclosed by a fence, contained a fire pit, pruned trees and a picnic table, but no other noticeable landscaping or improvements.

Over one thousand feet of dirt driveway wind through "swampy and thick" terrain, a row of pine trees and a rye field, and connect the house to Puustinen Road, the sole public access to the Widgren property. At the mouth of the driveway stands a metal gate, twenty feet long by three feet high, that displays multiple "No Trespassing" signs, one of which warns "federal officers of the IRS, HEW, HUD, environmental, health, and other unconstitutional agencies" as well as "all local members of planning & zoning boards" of a $5,000 per person land use fee. The house, which also stores various personal belongings of the son of Mr. Widgren, Sr., co-plaintiff Kenneth Widgren, Jr., can be plainly seen only from two vantage points outside the property — from the adjoining parcel to the south and from the air.

The Widgrens did not obtain a building permit for the construction of the house. In the spring of 2003, defendants Louis Lenz, Jr., the zoning administrator of Maple Grove Township, and H. Wayne Beldo, the Township tax assessor, entered the property a total of three times to confirm the zoning violation, to post a civil infraction on the front door of the house, and to conduct a tax assessment through observation of the exterior of the house. Once the Widgrens learned of the three visits, each of which is discussed below in more detail, the father and son brought suit in the U.S. District Court for the Western District of Michigan, alleging various violations of federal and state law. Both the Widgrens and the defendants moved for partial summary judgment on the Fourth Amendment claims filed pursuant to 42 U.S.C. § 1983. Relying on the "open fields" doctrine, the District Court granted the defendants' motion and held that no Fourth Amendment violation occurred. The District Court then denied the Widgrens' motion, and, with only state law claims remaining, dismissed the state law claims without prejudice pursuant to 28 U.S.C. § 1367(c)(3).

II. Analysis

A. Applicable General Principles

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and [that] no Warrants shall issue, but upon probable cause ...." U.S. Const. amend. IV (emphasis added). The Fourth Amendment's protections hinge on the occurrence of a "search," a legal term of art whose history is riddled with complexity. See Kyllo v. United States, 533 U.S. 27, 32, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (discussing "when a search is not a search"). A search is defined in terms of a person's "reasonable expectation of privacy" and is analyzed under a two-part test first penned in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967):(1) "has the individual manifested a subjective expectation of privacy in the object of the challenged search?" and (2) "is society willing to recognize that expectation as reasonable?" California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986).

The second prong of the Katz test generally addresses two considerations. The first focuses on "what a person had an expectation of privacy in, for example, a home, office, phone booth or airplane." Dow Chemical Co. v. United States, 749 F.2d 307, 312 (6th Cir.1984), aff'd, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986) (emphasis in original); see also Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (noting "our societal understanding that certain areas deserve the most scrupulous protection from government invasion"); United States v. White, 401 U.S. 745, 786, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting) (assessing "the individual's sense of security"); Wayne R. LaFave, 1 Search and Seizure: A Treatise on the Fourth Amendment § 2.1(d) (4th ed.2004). This inquiry centers on "whether the human relationships that normally exist at the place inspected are based on intimacy, confidentiality, trust or solitude and hence give rise to a `reasonable' expectation of privacy." Dow Chemical Co., 749 F.2d at 312.

The second consideration examines "what the person wanted to protect his privacy from, for example, non-family members, non-employees of a firm, strangers passing by on the street or flying overhead in airplanes." Id. (emphasis in original); see also Oliver, 466 U.S. at 178, 104 S.Ct. 1735 (discussing "government invasion" and "arbitrary government interference"); White, 401 U.S. at 762, 91 S.Ct. 1122 (asking whether, in a particular situation, "self-restraint by law enforcement officials [is] an inadequate protection"); cf. Kyllo, 533 U.S. at 34, 121 S.Ct. 2038 (addressing the limits of the "power of technology to shrink the realm of guaranteed privacy"); Olmstead v. United States, 277 U.S. 438, 474, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting) (warning of "[t]he progress of science in furnishing the government with means of espionage"). This inquiry, therefore, focuses on the government intrusion at issue.

Other relevant factors in applying Katz's second prong include "the intention of the Framers of the Fourth Amendment" and "the uses to which the individual has put a location." Oliver, 466 U.S. at 178, 104 S.Ct. 1735.

While applying these considerations to Katz' second prong to determine whether "society [is] willing to recognize that expectation as reasonable," the Supreme Court has drawn some bright line rules concerning the home, the curtilage, and open fields. These three doctrines converge in this case and are all discussed below.

B. Application of Principles

The Widgrens claim that the defendants conducted three separate searches in violation of the Fourth Amendment. We address each instance individually.

1. The Initial Inspection

While driving on Sedlar Road in late March of 2003, Mr. Lenz, the Township's zoning administrator, apparently observed a reflection from the roof or window of the Widgrens' house. Unsure what he had seen but confident that no land use permit had been issued for a house there, Mr. Lenz parked on Puustinen Road and advanced up the Widgrens' driveway past the metal gate and "No Trespassing" signs until he came within 200 feet of the house, which, for the first time, was clearly visible. Not having entered the cleared area, Mr. Lenz returned to the Township offices to confirm that no land use permit had been issued for the Widgren property. He then promptly informed Mr. Widgren, Sr., by letter of the violation of the Township's zoning ordinance.

Mr. Lenz' observations here, occurring in the open fields, did not constitute a Fourth Amendment search. No reasonable expectation of privacy exists in "open fields." Oliver, 466 U.S. at 177, 104 S.Ct. 1735. The term "open fields" is somewhat of a misnomer in that "[a]n open field need be neither `open' nor a `field'" and "may include any unoccupied or undeveloped area outside of the curtilage." Id. at 180 n. 11, 104 S.Ct. 1735. "[T]here is no constitutional difference between police observations conducted while in a public place and while standing in the open fields." United States v. Dunn, 480 U.S. 294, 304, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). Moreover, "[i]n the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment." Oliver, 466 U.S. at 183-84, 104 S.Ct. 1735. The presence of "No Trespassing" signs, furthermore, does not transform the open fields into an area where an expectation of privacy is necessarily reasonable. See id. at 179, 183 n. 13, 104 S.Ct. 1735.

In Dunn, relying on the open fields doctrine, the Supreme Court declined to equate much more intrusive government conduct than that involved here with a Fourth Amendment violation:

It follows that no constitutional violation occurred here when the officers crossed over respondent's ranch-style perimeter fence, and over several similarly constructed interior fences, prior to stopping at the locked front gate of the barn ... [T]he officers never entered the barn, nor did they enter any other...