502 F.3d 452 (6th Cir. 2007), 05-2732, Taylor v. Michigan Dept. of Natural Resources

Docket Nº:05-2732.
Citation:502 F.3d 452
Party Name:Alan TAYLOR, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Defendant, Paul Rose, Conservation Officer, in both his Official Capacity and Individual Capacities; Rebecca A. Humphries, Director of the Department of Natural Resources, in her Official Capacity, Defendants-Appellees.
Case Date:September 14, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 452

502 F.3d 452 (6th Cir. 2007)

Alan TAYLOR, Plaintiff-Appellant,

v.

MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Defendant,

Paul Rose, Conservation Officer, in both his Official Capacity and Individual Capacities; Rebecca A. Humphries, Director of the Department of Natural Resources, in her Official Capacity, Defendants-Appellees.

No. 05-2732.

United States Court of Appeals, Sixth Circuit.

Sept. 14, 2007

Argued: Oct. 27, 2006.

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 03-00225-Robert Holmes Bell, Chief District Judge.

Page 453

ARGUED:

Steven J. Vander Ark, Grand Rapids, Michigan, for Appellant.

Mark E. Donnelly, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

ON BRIEF:

Steven J. Vander Ark, Grand Rapids, Michigan, for Appellant.

Mark E. Donnelly,Office of the Attorney General, Lansing, Michigan, for Appellees.

Before: KENNEDY and GIBBONS, Circuit Judges; ALDRICH, District Judge.[*]

OPINION

KENNEDY, Circuit Judge.

Alan Taylor seeks review of the district court's grant of summary judgment for the defendants, asserting that the trial court erred (1) in concluding that the conservation officer's conduct did not constitute a search or an invasion of privacy, (2) in finding that the conservation officer was entitled to qualified immunity, and (3) in determining that plaintiff lacked standing to seek prospective injunctive relief against the director of the Department of Natural Resources in her official capacity. We find that the property check at issue was not a warrantless search in violation of

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the Fourth Amendment and, for the reasons that follow, affirm the district court.

BACKGROUND

On February 20, 2003, longtime conservation officer Paul Rose approached plaintiff's 240-acre fenced property, located in a rural area, Newaygo County, Michigan, to investigate a complaint regarding fencing. Under state law, it is a misdemeanor to unlawfully erect a barrier denying ingress or egress to an area where the lawful taking of animals may occur. Officer Rose found no violation but, after seeing tire tracks up to the open driveway and footprints continuing, proceeded onto the property, passing two "No Trespassing" signs, toward the log and stone house. His affidavit states that he called out to determine if anyone was home. Officer Rose peered into the windows of the home and garage, shielding his eyes from the daytime sun with cupped hands, and he rattled the doorknobs of the home and garage. At the end of his "rounds," Officer Rose came to the front door and left his business card in the door. The "property check" lasted approximately five minutes.

Officer Rose claims that he conducted the check because he thought a trespasser or intruder might be on the property, a concern he asserts was prompted by his observation of the footprints and tire tracks in the snow.1 The tire tracks stopped at the entrance to the property, but the footprints appeared to lead in the direction of the residence, gradually dissipating due to limited snow cover. Plaintiff claims that the gate and the location from which the observation was made are approximately a quarter mile from the home. Officer Rose recounts that he interpreted the house's open curtains to be suspicious because, based on over twenty years of experience as a conservation officer, most absentee owners of rural homes close their curtains when not present, and intruders open them in order to observe approaching vehicles.2 Upon returning home, plaintiff found the business card the officer had left behind and, per the request noted on the card, called the officer. Officer Rose explained the fence complaint and offered assistance in the event of future trespassing problems but did not discuss the property check he had conducted.

After reviewing his home security tape, plaintiff contacted the director of the Michigan Department of Natural Resources ("DNR") to report the allegedly illegal conduct of Officer Rose. The director replied by stating that the officer's conduct was proper and that law enforcement officers customarily conduct property checks. Unsatisfied with the department's response, plaintiff filed a complaint in federal court, ultimately seeking nominal damages against the conservation officer and injunctive relief against the director of the DNR, bringing a 42 U.S.C. § 1983 claim alleging violation of his Fourth Amendment right to be free from unreasonable searches and invasion of privacy, similar claims of violation of the Michigan Constitution, a negligence claim for failure to train conservation officers, and state law claims of trespass. The trial court granted defendants' cross-motion for summary judgment on the federal claims, concluding

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that the officer's conduct was not a search and, even assuming a constitutional violation, that the officer was entitled to qualified immunity. The court declined to exercise supplemental jurisdiction over the state claims. Plaintiff appeals the district court's grant of summary judgment for the defendants.

ANALYSIS

Plaintiff asserts three issues on appeal, arguing that Officer Rose's conduct did constitute a search, that his conduct was not protected by qualified immunity, and that plaintiff has standing to seek injunctive relief. This court's review of a grant of summary judgment is de novo. Summar v. Bennett, 157 F.3d 1054, 1057 (6th Cir.1998). We find that Officer Rose's conduct does not rise to the level of a search within the meaning of the Fourth Amendment and thus no constitutional violation occurred, and therefore affirm the district court's denial of plaintiff's claim under 42 U.S.C. § 1983.

I.

Plaintiff argues that the trial court erred in concluding that Officer Rose's conduct did not constitute a search. The occurrence of a "search" is defined in terms of whether a person had a "constitutionally protected reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). When interpreting the Katz definition, a "reasonable expectation of privacy" exists when (1) "the individual [has] manifested a subjective expectation of privacy in the object of the challenged search" and (2) "society [is] 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).

Applying Katz, the district court found, and defendants concede on appeal, that plaintiff had manifested a subjective expectation of privacy. Nevertheless, the district court concluded that Officer Rose's conduct did not satisfy the second prong of Katz because the methods used and the purpose for the observations indicate a low level of intrusion. The court noted that Officer Rose merely conducted naked-eye observations sans technological enhancements, and he did so under the auspices of performing a "property check." The court also found persuasive that Officer Rose was present on the property during the daytime, his check lasted only about five minutes, and he left a business card behind to notify the owner of his presence.

We agree with the district court's determination that Officer Rose's conduct does not constitute a search within the meaning of the Fourth Amendment based on its failure to satisfy the second element of the Katz analysis. Less than one year before we heard argument on this appeal, another panel of this court clarified the elements we are to consider when determining whether society is willing to recognize an expectation of privacy as reasonable in a case pertaining to officials' conduct on another piece of rural Michigan property. The panel's unanimous opinion in Widgren v. Maple Grove Township explains:

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." . . . 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.... Other relevant factors in applying Katz's

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second prong include "the intention of the Framers of the Fourth Amendment" ....

429 F.3d 575, 578-579 (6th Cir. 2005) (emphases in original) (internal citations omitted). Our Katz prong two inquiry follows this framework, beginning with consideration of the "individual's sense of security" and then moving to the "government intrusion at issue." Id. at 582 (internal citation omitted).

The nature of the property in which plaintiff claims an expectation of privacy weighs in favor of finding that society is willing to recognize that expectation as reasonable. After all, Officer Rose's "property check" entailed observation of the interior of the home, "the prototypical and hence most commonly litigated area of protected privacy." Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). However, it is important to note that Officer Rose did not enter the plaintiff's home. Rather, he checked the doors and windows to assure that they were secure, and he engaged in a relatively unintrusive view into the building's interior, per departmental custom. His survey of the premises lasted only around five minutes. "[T]he Fourth Amendment has drawn a firm line at the entrance to the house," requiring exigent circumstances to justify a warrantless search. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (emphasis added).

There is even an exception to this rule based on suspicion of burglary. Past cases reveal an "established...

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