Bleavins, John C. v. Bartels, Joel H. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2415
JOHN C. BLEAVINS,
Plaintiff-Appellant,
v.
JOEL H. BARTELS, ROGER BAY,
VERNON MCGREGOR, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 98 C 1236—Michael M. Mihm, Judge.
____________
ARGUED APRIL 6, 2005—DECIDED AUGUST 16, 2005
____________
Before BAUER, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. State revenue agents entered
property rented by tax debtor John Bleavins and seized
several trailers. Mr. Bleavins then filed a civil rights action
in state court in which he alleged a violation of his rights
under the Fourth Amendment. The defendants removed the
case to the district court. The district court ruled for
Mr. Bleavins on liability, and he received an award follow-
2 No. 04-2415
ing trial on damages. The defendants appealed, and we
reversed the district court’s judgment. On remand, the
district court determined that the defendants had not vio-
lated Mr. Bleavins’ Fourth Amendment rights and, in the
alternative, that the defendants were entitled to qualified
immunity. Mr. Bleavins appeals that determination. For the
reasons set forth in the following opinion, we affirm the
judgment of the district court.
I
BACKGROUND
A. Facts
We have detailed previously the facts of this case in
Bleavins v. Bartels (“Bleavins I”), 326 F.3d 887 (7th Cir. 2003),
and briefly recount them here. In 1995, the State of Illinois
determined that Mr. Bleavins owed more than $11,000 in
back taxes. The Illinois Department of Revenue (“IDOR”)
began the process of administrative seizure. See 35 ILCS
5/1109. In preparation, IDOR employee Roger Bay surveyed
the land surrounding Mr. Bleavins’ property in January.
During his inspection, Mr. Bay did not enter the property;
he used binoculars to observe the site from fifty to seventy
yards away. He saw two boats, a pickup truck and two
trailers—one flatbed trailer and one that included a con-
1
tainer housing Mr. Bleavins’ tools (the “tool trailer”). Mr.
Bay recorded the vehicles’ license plate numbers, sketched
the site and filled out a seizure checklist, all of which he
provided to fellow employee Joel Bartels. In May, Mr.
Bartels issued an administrative warrant listing the boats as
property to be seized.
1
One of the boats was mounted on a third trailer.
No. 04-2415 3
Mr. Bartels, Mr. Bay and co-defendant Vernon McGregor
(the “defendants” or the “State”), together with several
Macon County Sheriff ’s deputies, proceeded to
Mr. Bleavins’ house to execute the warrant. The group
entered Mr. Bleavins’ property; Mr. McGregor determined
that they would not be able to seize the boats without dam-
aging them. Over Mr. Bleavins’ objection, Mr. McGregor
then directed the deputies to seize instead the flatbed and
tool trailers.
Mr. Bleavins later brought an action in state court for the
return of his trailers, which had not been described in the
warrant. The state court ordered the return of his property.
Mr. Bleavins then filed, in state court, a civil rights action
against the defendants. He alleged that they had violated
his rights under the Fourth and Fourteenth Amendments to
the Constitution of the United States.
B. District Court Proceedings
The defendants, Mr. Bartels, Mr. Bay and Mr. McGregor,
removed the case to the district court. See 28 U.S.C.
§ 1441(a). The district court rejected the defendants’ claims
of qualified immunity and granted summary judgment to
Mr. Bleavins on liability. After a trial on damages, a jury
awarded Mr. Bleavins $1,000. The defendants appealed,
arguing that the seizure of Mr. Bleavins’ trailers did not
violate the Fourth Amendment and that the district court
had erred in determining that they were not entitled to qua-
lified immunity.
After withdrawing an initial opinion and granting a re-
hearing, we invited the parties to address two particular
issues: (1) whether the warrant at issue was a valid Fourth
Amendment warrant and (2) whether the seized trailers
were located within the curtilage of Mr. Bleavins’ home. The
4 No. 04-2415
defendants conceded that the administrative warrant did
not meet the requirements of the Fourth Amendment. We
therefore noted that, absent a valid warrant, the defendants
would have violated the Amendment if Mr. Bleavins had a
legitimate privacy interest in the area in which the trailers
were seized. See G.M. Leasing Corp. v. United States, 429 U.S.
2
338, 351-52 (1977). In particular, we noted that “if the seized
trailers were located within the curtilage of Bleavins’ home,
appellants’ warrantless entry into the area would constitute
a violation of Bleavins’ Fourth Amendment rights.” Bleavins
I, 326 F.3d at 891.
The parties disputed whether the trailers were within or
outside the curtilage of Mr. Bleavins’ home. Because the
issue potentially impacted both the Fourth Amendment
claim and the qualified immunity defense and because the
district court had made no factual finding on the issue, we
remanded the case to the district court “to consider whether
the trailers which were seized were located within the
curtilage of Bleavins’ home and, if they were, whether
appellants could have reasonably believed that the area was
not curtilage.” Id. at 892.
On remand, the parties entered stipulations about the
layout of Mr. Bleavins’ property and introduced additional
evidence, including photos of Mr. Bleavins’ property and a
sketch of the property as it appeared in 1995. See Appendix
2
In G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977), the
Supreme Court upheld a “warrantless” seizure, one conducted
pursuant to an administrative warrant, occurring at places in
which there was no expectation of privacy. Id. at 351-52. As we
noted in Bleavins I, the seizure here likewise was warrantless in
the Fourth Amendment sense because the IDOR agents were not
acting pursuant to a judicial warrant. Bleavins v. Bartels
(“Bleavins I”), 326 F.3d 887, 891 n.2 (7th Cir. 2003).
No. 04-2415 5
A, infra. According to this evidence, Mr. Bleavins’ property
was bounded to the north by William Street Road and to the
south by a creek. Fencing surrounded the property on all
four sides. A driveway—the only entrance to the prop-
erty—extended from north to south, from William Street
Road past Mr. Bleavins’ home; a sign reading “PRIVATE
PROPERTY KEEP OUT” was posted at the driveway
entrance. R.136, Ex.OO. South of Mr. Bleavins’ residence
was a field, and a three- or four-foot-high internal fence
separated this field from the rest of the property. It is in this
field that Mr. Bleavins stored his trailers, together with the
boats and a truck. The trailers were seized from this field.
The photos depict the property as it appeared at the time of
this action, not as it appeared in 1995. They indicate that the
property is surrounded by foliage; Mr. Bleavins concedes
that the pictures demonstrate more extensive foliage than
existed in 1995, and the parties dispute the extent of tree
cover during Mr. Bay’s wintertime observation of the field.
The parties filed cross-motions for summary judgment.
The district court first considered the curtilage question. It
analyzed the south field according to the four factors iden-
tified in United States v. Dunn, 480 U.S. 294 (1987). Although
the field was relatively close to Mr. Bleavins’ house and was
fenced, the fence’s size and construction did not shield items
in the field from view. Given the inadequacy of the fence,
along with the field’s apparent use only for storage and the
relatively unimpeded view from the north street into the
field, the district court held that the field was not curtilage
for purposes of Fourth Amendment privacy considerations.
The district court then determined, in the alternative, that
the agents were entitled to qualified immunity. The district
court based this conclusion primarily on the apparent non-
responsiveness of Mr. Bleavins’ submissions. At any rate, it
determined that the fact-specific nature of the curtilage
6 No. 04-2415
inquiry precluded Mr. Bleavins from meeting his burden
under the second element of qualified immunity because it
was not clear that a reasonable agent in 1995 would have
understood that his conduct constituted a violation.
II
DISCUSSION
3
A. Standard of Review
We review the grant of summary judgment de novo,
drawing all reasonable inferences in favor of the nonmoving
party. See Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th
Cir. 2004). We apply the same standard in reviewing cross-
motions for summary judgment. Int’l Bhd. of Elec. Workers,
Local 176 v. Balmoral Racing Club, Inc., 293 F.3d 402, 404 (7th
Cir. 2002). When the parties stipulate to the material facts
and both move for summary judgment we simply review
the district court’s resulting legal conclusions de novo.
Freedom from Religion Found., Inc. v. City of Marshfield, 203
4
F.3d 487, 491 (7th Cir. 2000).
3
The State raises another threshold matter that need not detain
us. The State urges us to strike Mr. Bleavins’ brief in its entirety
or to affirm summarily the district court. It submits that
Mr. Bleavins failed to comply with several procedural rules. See
Fed. R. App. P. 28(a)(7), (9)(A); 7th Cir. R. App. P. 28(c); L.S.F.
Transp., Inc. v. NLRB, 282 F.3d 972, 975 n.1 (7th Cir. 2002). Such
measures are not appropriate in this case.
4
In Bleavins I, we noted that the fact-intensive nature of the
curtilage inquiry has created division among our sister circuits
concerning the standard to apply in reviewing a district court’s
application of United States v. Dunn, 480 U.S. 294 (1987). See
Bleavins I, 326 F.3d at 891 n.3 (citing United States v. Breza, 308
(continued...)
No. 04-2415 7
4
(...continued)
F.3d 430, 435 (4th Cir. 2002)). As described in Breza, in early cases,
the courts of appeals for the Third and Tenth Circuits reviewed
curtilage determinations for clear error. See United States v. Benish,
5 F.3d 20, 23-24 (3d Cir. 1993); United States v. Swepston, 987 F.2d
1510, 1513 (10th Cir. 1993). In Ornelas v. United States, 517 U.S. 690(1996), the Supreme Court held that “the ultimate questions of
reasonable suspicion and probable cause to make a warrantless
search should be reviewed de novo,” id. at 691, although courts of
appeals are “to review findings of historical fact only for clear
error and to give due weight to inferences drawn from those facts
by resident judges,” id. at 699.
Relying on Ornelas, the First, Fourth and Ninth Circuits appear
to review the overall curtilage determination de novo. See Breza,
308 F.3d at 435; United States v. Diehl, 276 F.3d 32, 37-38 (1st Cir.
2002); United States v. Johnson, 256 F.3d 895, 912 (9th Cir. 2001) (en
banc); cf. United States v. Redmon, 138 F.3d 1109, 1132 (7th Cir.
1998) (Posner, C.J., dissenting) (“I take it, in light of Ornelas v.
United States, that [curtilage] is a question that we are to decide
de novo . . . .” (citation omitted)). But see United States v. Romero-
Bustamente, 337 F.3d 1104, 1107 n.2 (9th Cir. 2003) (noting that
there remains some debate on the subject in the Ninth Circuit
despite Johnson). The First and Fourth Circuits have further
clarified that a district court’s findings of antecedent fact are
reviewed for clear error. Breza, 308 F.3d at 435; Diehl, 276 F.3d at
38.
Breza and the cases that it discusses, all criminal cases, are not
applicable to the issue before this court: the proper standard by
which to review a district court’s curtilage determination in
granting summary judgment in a civil case. In Daughenbaugh v.
City of Tiffin, 150 F.3d 594, 597 (6th Cir. 1998), the Sixth Circuit
held that, regardless of whether the standard in criminal cases is
clear error or de novo with historical facts reviewed for clear
error, the court reviews a grant of summary judgment de novo.
(continued...)
8 No. 04-2415
B. Qualified Immunity
We first consider whether the defendants enjoy qualified
immunity. See Anderson v. Creighton, 483 U.S. 635, 646 n.6
(1987). This doctrine shields a government actor from
further litigation unless the plaintiff can demonstrate (1)
“the violation of a constitutional right” that is (2) “clearly
established at the time of the violation, so that a reasonable
public official would have known that his conduct was
unlawful.” Sonnleitner v. York, 304 F.3d 704, 716 (7th Cir.
2002); see Saucier v. Katz, 533 U.S. 194, 200-02 (2001). As often
occurs in these cases, our inquiry into the first prong of the
qualified immunity paradigm requires that we assess the
constitutional issue at the heart of the plaintiff’s case. See
Allison v. Snyder, 332 F.3d 1076, 1078 (7th Cir. 2003).
1.
The Fourth Amendment, applied to the States by the
Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643 (1961),
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,” U.S. Const.
amend. IV. In Katz v. United States, 389 U.S. 347 (1967), and
its progeny, the Supreme Court “rejected a property-line
approach to the Fourth Amendment.” Siebert v. Severino, 256
F.3d 648, 654 (7th Cir. 2001). The “touchstone of the Fourth
Amendment is reasonableness.” Florida v. Jimeno, 500 U.S.
248, 250 (1991).
Nevertheless, a property-based concept—curtilage—
remains important in evaluating privacy interests. See
4
(...continued)
We agree.
No. 04-2415 9
United States v. Hedrick, 922 F.2d 396, 399 (7th Cir. 1991)
(“[T]he Supreme Court continues to discuss the protection
accorded the curtilage even though it has rejected the notion
that property law defines the contours of Fourth Amend-
ment protection.”). The importance of curtilage stems from
the particularly important protections that the Fourth
Amendment affords to homes:
“At 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 intru-
sion.” Silverman v. United States, 365 U.S. 505, 511 (1961).
With few exceptions, the question whether a
warrantless search of a home is reasonable and hence
constitutional must be answered no. See Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990); Payton v. New York,
445 U.S. 573, 586 (1980).
Kyllo v. United States, 533 U.S. 27, 31 (2001). This constitu-
tional protection is not limited to the residence structure:
“Both a home and the home’s curtilage—i.e., the area
outside the home itself but so close to and intimately
connected with the home and the activities that normally go
on there that it can reasonably be considered part of the
home—are within the scope of the Fourth Amendment’s
protection.” Siebert, 256 F.3d at 653-54 (internal quotation
marks and citations omitted); see also Oliver v. United States,
466 U.S. 170, 182 n.12 (1984) (“[T]he conception defining the
curtilage—as the area around the home to which the activity
of home life extends—is a familiar one easily understood
5
from our daily experience.”). A warrantless search of a
5
See generally 1 Wayne R. LaFave, Search and Seizure § 2.3(d), at
587-90 (4th ed. 2004) (describing the continued vitality of the
(continued...)
10 No. 04-2415
home’s curtilage implicates the “very core” of the Fourth
Amendment and presumptively is unreasonable. See Payton,
445 U.S. at 585-86; Leaf v. Shelnutt, 400 F.3d 1070, 1081 (7th
Cir. 2005); Hedrick, 922 F.2d at 399 (describing curtilage as
the area “in which privacy expectations are most height-
ened”).
These considerations prompted us to remand this case
to the district court to determine whether the field in which
Mr. Bleavins stored his seized trailers constituted the
curtilage of his home. The Supreme Court addressed the
standard for this determination in Dunn. It identified four
factors to consider: (1) the proximity of the area in question
to the home; (2) whether the area is included in an enclosure
surrounding the home; (3) how the owner uses the area; and
(4) the measures taken to protect the area from observation.
Dunn, 480 U.S. at 301. We shall discuss each of these factors.
a.
Dunn first requires us to consider the proximity of the
field to Mr. Bleavins’ residence. The stipulated diagram,
which does not appear to be drawn to scale, indicates that
Mr. Bleavins’ house generally occupies the northwest corner
of the property, and the field generally encompasses the
southern half. A notation describes the span of Mr. Bleavins’
5
(...continued)
curtilage concept); Brendan Peters, Note, Fourth Amendment Yard
Work: Curtilage’s Mow-Line Rule, 56 Stan. L. Rev. 943, 952-62 (2004)
(tracing the common law and modern importance of curtilage);
S. Bryan Lawrence III, Comment, Curtilage or Open Fields?: Oliver
v. United States Gives Renewed Significance to the Concept of
Curtilage in Fourth Amendment Analysis, 46 U. Pitt. L. Rev. 795(1985).
No. 04-2415 11
property, from north to south, as approximately 200 feet.
We know that the south field is less than 200 feet from the
home and that the shop tool shed lies between the home and
the field, but we cannot determine the actual distance
between the field and Mr. Bleavins’ residence. Mr. Bleavins
claimed before the district court that the south field is
seventy-five feet from the home but, as the district court
noted, there is no other evidence in the record to confirm his
assertion.
We have, at any rate, resisted over-reliance on the prox-
imity prong of Dunn, standing alone. Attempts to establish
bright-line distance tests with respect to this prong are an
exercise in futility. This first Dunn factor tends to be very
case-specific, and its significance is highly dependent on
6
other factors. “While it is true that we have found that
privacy expectations are most heightened when the area in
question is near[ ] (within 20 feet) to the home, the prox-
imity to the home, standing by itself, does not per se, suffice
to establish an area as within the curtilage.” United States
v. French, 291 F.3d 945, 952 (7th Cir. 2002). On the state of
the record, we cannot determine with any certainty the
proximity of the field to Mr. Bleavins’ home and thus turn
to consideration of the other Dunn factors. See United States
v. Gerard, 362 F.3d 484, 487 (6th Cir. 2004) (“Neither party
included in its brief the proximity of the garage to the farm
house. . . . The distance alone, however, is not determinative
that the garage should be treated as an adjunct of the
house.”).
6
For example, based on other factors, the Second Circuit has
found an area located 375 feet from a residence to be included in
the curtilage. United States v. Reilly, 76 F.3d 1271 (2d Cir. 1996).
12 No. 04-2415
b.
We next consider whether the south field is located in an
enclosure surrounding the home. Mr. Bleavins points out
that the south field is enclosed by the fence surrounding his
entire property, an enclosure that includes his home. The
State notes, however, that the field is further separated from
the home by an internal fence and thus is contained in an
enclosure separate from that of the residence.
There is no bright-line rule to assess the significance of
external and internal fencing; the Supreme Court in Dunn
pointedly rejected an argument that a home’s curtilage
“should extend no farther than the nearest fence surround-
ing a fenced house.” Dunn, 480 U.S. at 301 n.4 (internal
quotation marks and citation omitted). Instead, it adopted
the four-factor balancing test. Nevertheless, “[f]encing con-
siderations are important factors in defining the curtilage.”
Id.Mr. Bleavins’ property is surrounded by a single enclo-
sure, but interior fencing further demarcates areas within
the property. For example, it appears that the area south
of Mr. Bleavins’ garage is separately demarcated. More
importantly, a gated fence separates the south field from the
area containing Mr. Bleavins’ home, shop tool shed and
garage. “Typically, the enclosure factor weighs against those
who claim infringement of the curtilage when their land is
divided into separate parts by internal fencing.” United
States v. Reilly, 76 F.3d 1271, 1278 (2d Cir. 1996). In this case,
the internal fence “serves to demark a specific area of land
immediately adjacent to the house that is readily identifiable
as part and parcel of the house,” Dunn, 480 U.S. at 302, that
is, the area containing the home, garage and shop tool shed.
Areas outside of this demarcation, including the south field,
are not within the “enclosure” surrounding the home. See
Gerard, 362 F.3d at 488; United States v. Breza, 308 F.3d 430,
No. 04-2415 13
436 (4th Cir. 2002); United States v. Johnson, 256 F.3d 895, 917
(9th Cir. 2001) (en banc). The interior fence separating the
south field from Mr. Bleavins’ living area thus indicates
strongly that the field is not part of the curtilage.
c.
We next consider how Mr. Bleavins used the field;
curtilage is afforded special protection only because it is an
area “so close to and intimately connected with the home
and the activities that normally go on there.” Siebert, 256
F.3d at 654.
Areas that are “intimately connected with the . . . activi-
ties” of the home include, for example, backyards. See
French, 291 F.3d at 953; Hedrick, 922 F.2d at 399; see also
United States v. Carter, 360 F.3d 1235, 1241 (10th Cir. 2004).
Mr. Bleavins does not argue that the south field is a back-
yard, and it is apparent that Mr. Bleavins primarily used the
south field for parking and storage. These uses were related
both to Mr. Bleavins’ leisure activities (storing his pontoon
boat) and to his work-related activities (storing his tool
trailer), but none of these uses are intimately associated with
the home. See, e.g., Palmieri v. Lynch, 392 F.3d 73, 93 & n.14
(2d Cir. 2003) (finding an area to be curtilage because,
among other things, it was strewn with children’s toys and
“other items of a domestic nature”). This conclusion is
bolstered by the fact that Mr. Bleavins’ property contains a
separate garage that is included in the enclosure surround-
ing his home, presumably intended for parking and storage
activities of a domestic nature.
d.
14 No. 04-2415
Finally, Dunn instructs us to consider whether the south
field was visible to passers-by and the measures that
Mr. Bleavins took to shield it from view.
We begin with the uncontested facts. Mr. Bleavins does
not dispute that Mr. Bay was able to view the lot from a
public vantage point, William Street Road, by looking south
through his property and that the agent could identify
license plate numbers on vehicles parked in the field. Apart
from a “Private Property” sign, which does nothing to pre-
vent observation, there is no gate or other obstruction that
would prevent an individual in a public area from looking
across Mr. Bleavins’ driveway and viewing the south field.
The interior fence demarcating the south field is chain link,
only three to four feet high, and thus presents no barrier
to observation. The fence enclosing the entirety of
Mr. Bleavins’ property is four feet high, at various places
composed of “woven wire,” “chain link” or “single
strand . . . horse fence,” R.139 ¶ 2, and by itself does not
impede observation. The southernmost border of
Mr. Bleavins’ land was demarcated by a creek. In 1995, an
observer could only view the field from the west by entering
a neighbor’s property and from the east by entering a fenced
pasture that Mr. Bleavins rented for his horse. The parties
further agree that trees and shrubbery surround
Mr. Bleavins’ property, and photographs entered on stipula-
tion by the parties indicate that foliage all but obscures the
property from view. However, they dispute the amount of
cover that existed in 1995. Mr. Bay submitted an affidavit
stating that the photos did not accurately depict the prop-
erty as it existed in 1995. In particular, he noted that the
photos were taken in the summer or early fall, but, during
his wintertime observation in 1995, there virtually was no
foliage on the trees and shrubs. Mr. Bleavins stated that the
photos were an accurate depiction of the property but
admitted that, in the eight years between the seizure and the
No. 04-2415 15
time of the photos, the tree cover had grown from eight to
fourteen feet high. Mr. Bleavins’ concession prompted the
district court to remark: “With all due respect, six feet of
growth is not insubstantial.” R.147 at 7. Moreover, the court
noted that Mr. Bleavins’ submissions were “careful not to
address what was actually visible when Bay inventoried the
property.” Id. The district court thus largely accepted that
there was little foliage in the winter of 1995 and determined
that the fourth Dunn factor weighed in favor of finding that
the field was not within Mr. Bleavins’ curtilage.
We agree with the district court. Mr. Bleavins dedicated
a substantial portion of his motion for summary judgment
to describing the enclosures surrounding his home and the
field. However, whether the fences were “woven wire,”
“chain link” or “single strand,” they were approximately
four feet high and, by themselves, presented no barrier to
observation. See United States v. Tolar, 268 F.3d 530, 532 (7th
Cir. 2001) (“[A] chain-link fence does little to assert a pri-
vacy interest (as opposed to a property interest) in details
visible from outside the fence.”). The only fact bearing on
the question of whether Mr. Bleavins took steps to shield the
field from view was the amount of foliage that existed in
1995.
In accordance with local rules, the defendants noted, in
the “Material Facts Claimed to be Disputed” section of their
response to his summary judgment motion, that they dis-
puted an “assertion that the property was virtually hidden
from anyone looking at the property.” R.143 at 2; see also
C.D. Ill. Local Rule 7.1(D)(2)(b)(2). Mr. Bleavins’ reply, see
C.D. Ill. Local Rule 7.1(D)(3), acknowledged the dispute but
failed to offer any evidence that would contradict Mr. Bay’s
characterization of the foliage, see id. 7.1(D)(3)(a)(2). In the
course of filing cross-motions, Mr. Bleavins offered only the
following information to supplement the photographs:
16 No. 04-2415
While the trees and shrubs of plaintiffs property have
naturally grown over the years, some of the trees and
some of the shrubbery have been trimmed or removed
so that basically the property appears substantially the
same as it did in 1995, except that the shrubbery along
the northern boundary of the property was approxi-
mately 8 feet high in 1995, such is now approximately
14 feet high.
R.139 ¶ 16. Moreover, Mr. Bleavins offered no answer to Mr.
Bay’s characterization of the foliage in winter 1995 in his
response to the defendants’ motion for summary judgment,
noting only that the facts were “in dispute.” R.144 at 2. As
the district court noted, Mr. Bleavins was “careful not to
address what was actually visible when Bay inventoried the
property in 1995 or how these changes have modified the
visibility of the storage area” and made no effort to rebut
Mr. Bay’s characterization. R.147 at 7. Notably, in this court
Mr. Bleavins does not respond to the argument, but de-
scribes the foliage as it appears today and focuses on the
fact that he posted a “Private Property” sign at the drive-
way.
We, like the district court, deem Mr. Bleavins’ failure to
respond more specifically to Mr. Bay’s characterization of
the foliage cover as an admission. See Waldridge v. American
Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994); C.D. Ill.
Local Rule 7.1(D). The record supports the conclusion that
Mr. Bleavins took little or no action to shield the south field
from view by individuals on William Street Road: The foli-
age surrounding his property provided little cover and his
use of short wire fencing manifested a property interest but
not a privacy interest.
Mr. Bleavins submits that we should consider that entry
to the field could only be accomplished through a driveway
No. 04-2415 17
7
that does pass through his curtilage and that he manifested
an expectation of privacy by posting a “Private Property”
sign. We cannot accept this argument. Generally, there is no
expectation of privacy in a driveway, particularly where, as
here, it is open to observation and use by the public. See
United States v. Evans, 27 F.3d 1219, 1229 (7th Cir. 1994).
Although Mr. Bleavins posted a “Private Property” sign, we
have made clear that the important inquiry is whether the
public has access to a private driveway. A gate may manifest
an expectation of privacy because it prevents access to a
driveway by the public; a sign alone does not. See French,
291 F.3d at 953-54. “The route which any visitor to a resi-
dence would use is not private in the Fourth Amendment
sense . . . .” 1 Wayne R. LaFave, Search and Seizure § 2.3(e),
at 592-93 (4th ed. 2004); see United States v. Reyes, 283 F.3d
446, 465-66 (2d Cir. 2002) (collecting cases).
e.
The Dunn factors thus weigh in favor of a determination
that Mr. Bleavins’ south field is not curtilage. The ultimate
inquiry is “whether the area in question is so intimately tied
to the home itself that it should be placed under the home’s
‘umbrella’ of Fourth Amendment protection.” Dunn, 480
U.S. at 301. Because it was separated from the living area,
used for nonresidential purposes and open to the public
both to observe and to access, Mr. Bleavins had no expecta-
tion of privacy in the south field that society would recog-
7
We assume this assertion to be correct. The stipulated sketch
indicates that, in 1995, another gate opened to the field from the
south fence line. However, use of this gate apparently would
have required the agents to cross a creek and a pasture before
they reached the fence line.
18 No. 04-2415
nize as reasonable. The search at issue here did not impli-
cate Mr. Bleavins’ Fourth Amendment rights.
2.
If the plaintiff fails to meet the first prong of the qualified
immunity test, that is, fails to demonstrate that were the
allegations established the officials would have violated a
constitutional right, there is no need to consider the second
prong. Saucier, 533 U.S. at 201. We conclude that the record
makes clear that Mr. Bleavins had no reasonable expectation
of privacy in the south field. He thus cannot demonstrate
the violation of a constitutional right. We need go no
further.
Conclusion
The defendants were entitled to qualified immunity be-
cause Mr. Bleavins failed to establish a constitutional vio-
lation. We therefore affirm the judgment of the district
court.
AFFIRMED
No. 04-2415 19
Appendix A
20 No. 04-2415
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-16-05