Taylor v. Michigan Department of Natural Resources ( 2007 )

KENNEDY, J., delivered the opinion of the court, in which GIBBONS, J., joined. ALDRICH, D.J. (pp. 458-65), delivered a separate dissenting opinion.

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

BACKGROUND

On February 20, 2003, longtime conservation officer Paul Rose approached plaintiffs 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 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 injunc-tive 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 plaintiffs 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 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 plaintiffs 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 precedent that the police may ‘enter a residence ... [if they] believe that there is a burglary in progress.’ ” United States v. McClain, 430 F.3d 299, 304-305 (6th Cir.2005), (citing United States v. Reed, 141 F.3d 644, 649 (6th Cir.1998)). While such cases have indicated that probable cause and exigency are both required to justify warrantless entry, it makes sense for the law to impose a greater burden on officers entering a home to ensure its safety than it demands to justify looking inside through open windows. Officer Rose did not enter plaintiffs home. He observed the interior of the house and its exterior from the outside only. The Supreme Court has stated that even the fact “that [an] area is within the curtilage does not itself bar all police observation.” Ciraolo, 476 U.S. at 213, 106 S.Ct. 1809. Thus it becomes critical to examine the extent of the government intrusion, which Widgren has prescribed should include an inquiry into the methods used and purpose for the conduct at issue. Widgren, 429 F.3d at 583.

Considering Officer Rose’s limited methods of observation and the purpose of his conduct, we conclude that this “property check” is not a Fourth Amendment search. In terms of methods, existing Fourth Amendment jurisprudence distinguishes between cases in which officers engaged in “ordinary visual surveillance” and those in which the officers employ “technological enhancement of ordinary perception.” Kyllo, 533 U.S. at 31, 33, 121 S.Ct. 2038. Like the officials in Widgren, Officer Rose “used naked-eye observations unaided by technological enhancements” to survey the property. Widgren, 429 F.3d at 585. Admittedly, the present ease differs from Widgren in that Officer Rose quickly surveyed the interior of the house, visible through open drapes, while the officers in Widgren only examined exterior features of the home. Officer Rose, however, engaged in only a brief, minimally intrusive visual inspection. Appellant accurately cites cases from other courts that interpret observation of the interior of a home through windows to constitute a search. See Brock v. United States, 223 F.2d 681, 685 (5th Cir.1955), People v. Camacho, 23 Cal.4th 824, 98 Cal.Rptr.2d 232, 3 P.3d 878, 887 (2000), Lorenzana v. Superior Court of Los Angeles, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33, 35 (1973), People v. Haddad, 122 Mich.App. 229, 332 N.W.2d 419, 420 (1982). However, all of these cases are distinguishable from the matter at hand because they involve the conduct of law enforcement officers attempting to investigate suspected wrongdoing by the home owner/occupier without any professed protective element. That is, the purpose of the officers’ observations, a factor that we are to consider in such cases, differed from that of Officer Rose.

When considering whether the officials had conducted a search in Widgren, this court plainly stated that “[a] criminal investigation is generally more intrusive than an administrative or regulatory investigation.” Widgren, 429 F.3d at 583. This analysis comports with our past interpretation that “[a] search implies an examination of one’s premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action.” United States v. Blackburn, 389 F.2d 93, 95 (6th Cir.1968). Of course, not all non-criminal investigations are permissible. As the Supreme Court stated in Camara v. Municipal Court, “it is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.” Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Also, consideration of the purpose of the search should be distinguished from the law enforcement officer’s subjective intent, the former being subject to deduction and of legal importance, the latter being difficult or impossible to discern and irrelevant. See Bond v. United States, 529 U.S. 334, 339 n. 2, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). Here, no evidence indicates that Officer Rose would have any purpose for looking inside plaintiffs property other than the protective one that he supplies. The record does not indicate that Officer Rose had reports of criminal activity occurring within the house, nor does it suggest that the officer harbored any personal ill-will for the plaintiff. There is no evidence that Officer Rose was engaged in the “dirty business” that often accompanies an unjustifiable government intrusion. Widgren, 429 F.3d at 583 (citing Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Holmes, J., dissenting)).

We accept that, informed by his twenty-plus years of experience as a conservation officer and DNR custom, Officer Rose felt that conditions consistent with a wintertime break in of a potentially-seasonal home warranted a brief protective check. Upon arriving on the property, Officer Rose announced his presence. In broad daylight, he spent approximately five minutes looking in open windows and jiggling door knobs to ensure the safety of the home. After engaging in minimally intrusive observations to quell his suspicions, he left his card in the front door. In this context, we cannot find such an inspection constitutionally infirm.

Consideration of the underlying purposes of the Fourth Amendment solidifies our conclusion. The Supreme Court advised in Kyllo that we should construe the Fourth Amendment “in a manner which will conserve public interests as well as the interests and rights of individual citizens.” Kyllo, 533 U.S. at 40, 121 S.Ct. 2038 (citation omitted). Here, without physically intruding upon the home or employing any technology to substitute for a physical intrusion, Officer Rose observed the home in an effort to ensure the integrity of the property for the homeowner. “[TJhis was a situation where a common sense assessment would be that a legitimate owner, could that person have been contacted, would want the officers to investigate the possible break in, [which] tips [us] in the direction of finding the [officer’s] actions reasonable.” McClain, 430 F.3d at 311 (Boggs, J., concurring).

II.

Plaintiff also argues that the trial court erred in finding that Officer Rose was entitled to qualified immunity. An officer is protected by qualified immunity provided his conduct did not run afoul of a right that is clearly established. To determine whether the officer’s conduct violated a clearly established right, “[t]he relevant, dispositive inquiry ... is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). In this case, the district court ultimately determined that a reasonable conservation officer who had legally entered the premises and remained to conduct a brief, minimally invasive property check, like the one Officer Rose performed, for the purpose of ensuring the security of the home would not understand such conduct to violate the Constitution.

Because we determine that Officer Rose’s conduct did not violate the Constitution, the officer need not rely on qualified immunity to avoid liability. By definition, if Officer Rose did not violate a constitutional right, he did not violate a constitutional right that is clearly established. This portion of the district court’s opinion requires no further appellate attention to affirm.

III.

Plaintiff additionally argues that the trial court erred in finding he lacked standing to seek prospective injunctive relief against the director of the Department of Natural Resources in her official capacity. We need not address whether or not plaintiff would have had standing to request an injunction because, as determined above, there was no constitutional violation and therefore there is no ongoing unconstitutional conduct to enjoin.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

1 . While it appears that plaintiff resided in this home for approximately half of each year, based on the area and time of year, the officer assumed that the home was temporarily unoccupied by its owners and thus more susceptible to robbery.

2 . This reason for entering the property was supplied by affidavit in response to the property owner’s motion for summary judgment. Plaintiff does not suggest an alternative explanation for the officer’s conduct.