Leguire

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

MATTHIAS LEGUIRE, CASE NO. 3:23 CV 1123

Plaintiff,

v. JUDGE JAMES R. KNEPP II

ERIK ADKINS, et al.,

MEMORANDUM OPINION AND

Defendants. ORDER

INTRODUCTION

Pending before the Court is Defendants’ Motion for Summary Judgment on pro se Plaintiff

Matthias Leguire’s Fourth Amendment claim—the sole remaining claim in this action brought

pursuant to 42 U.S.C. § 1983. (Doc. 62). Plaintiff opposed (Doc. 64) and Defendants replied (Doc.

67). Jurisdiction is proper pursuant to 28 U.S.C. § 1331. For the reasons stated below, the Court

denies Defendants’ Motion.

BACKGROUND

Factual Background

This case stems from a dispute between Plaintiff and Findlay city officials regarding

Plaintiff’s storage of a boat, van, and trailer on his property located at 830 E. Sandusky Street in

Findlay, OH. (Doc. 62-2, at 2); (Doc. 64-2, at 2). On May 11, 2023, Defendant Joe Smith, an

Officer with the Findlay City Police Department, received a copy of a nuisance complaint

submitted via the City’s online reporting portal. (Doc. 62-2, at 2, 11–12). The complaint described

“an inoperable boat, trailer and farm wagon” situated towards the rear of Plaintiff’s property and

claimed these vehicles were visible through a “broken down fence” on the property. Id. According

to Defendant Erik Adkins, it is “typical procedure” for Findlay City Police Officers to investigate

civil nuisance complaints. (Doc. 62-1, at 3–4).

May 22, 2023

What occurred next remains in dispute. In his affidavit, Plaintiff claims he received a call

from Officer Smith on May 22, 2023, explaining the nature of the complaint and notifying Plaintiff

that Smith “needed to come to [his] house to check for violations.” (Doc. 64-2, at 4). Plaintiff avers

he told Officer Smith during the call he did not have permission to enter his property without a

warrant and would be limited to viewing his property from a public sidewalk or other public

vantage point. (Doc. 64-2, at 4). Officer Smith replied the complaint was “criminal” in nature,

meaning he “needed to enter and search [Plaintiff’s] property to see if the complaint was valid”

despite Plaintiff’s objections. Id. Officer Smith’s affidavit contains no mention of this phone call.

It is undisputed that Officer Smith, alongside Defendant David Hill, a Lieutenant with the

Findlay City Police Department, and Defendant Erik Adkins, a City of Findlay Zoning

Administrator, went to Plaintiff’s property on May 22, 2023. (Doc. 62-2, at 2); (Doc. 64-2, at 4).

The trio pulled into Plaintiff’s driveway and made initial contact. (Doc. 62-2, at 2); (Doc. 64-2, at

4). Plaintiff claims he then repeatedly protested the Defendants’ presence on his property,

instructing them “at least five times” to leave. (Doc. 64-2, at 4). Plaintiff then instructed

Defendants they could view his property from the sidewalk or other public land, and claims he

advised Defendants they did not have permission to enter his property without a warrant. Id.

Plaintiff further describes a phone call with Thomas Ross, a non-party to this suit, which occurred

during Defendants’ arrival to his property. Id. Attached to Plaintiff’s opposition brief is Ross’s

sworn affidavit, wherein he states he personally overheard Plaintiff speaking with Defendants and

notifying them they were not permitted to enter his property without a warrant. (Doc. 64-2, at 24).

Further, Ross claims to have overheard Defendants respond by stating “they did not need a warrant

because they were investigating alleged ‘criminal violations.’” Id.1

At some following Defendants’ arrival, Plaintiff began recording this initial encounter with

his cell phone. (Doc. 62-2, at 2–3); (Doc. 64-2, at 5); (Doc. 63) (notice of manual filing of video

exhibits A-2–A-8 attached to Adkins’ affidavit). These videos do not evidence Plaintiff’s

statements to Defendants’ regarding their general permission (or lack thereof) to enter onto his

property. See generally Exs. A-2, A-3. Defendants’ affidavits describe Plaintiff as being “initially

resistant” to their presence on his property before “basically acquiesc[ing]” thereto. See, e.g., Doc.

62-3, at 3; Doc. 62-2, at 3.

The video footage does depict Plaintiff specifically objecting to Adkins’s presence on his

property, as Plaintiff can be heard stating “I’d actually prefer you left my property right now, Erik.”

(Ex. A-3, at 0:05-:13).2 Defendant Adkins complies. See Doc. 62-1, at 4–5 (“[Plaintiff] would not

permit me to accompany [Smith and Hill]. I honored that request . . . and I never went any further

1. Were Ross to testify as to this conversation he overheard, such testimony would be admissible

either to demonstrate the effect of Plaintiff’s statements on the Defendants or the effect of

Defendants’ statements on Plaintiff, not for the truth of the statements. See Fed. R. Evid. 801(c)(2).

The former would be relevant to whether the Defendants reasonably understood Plaintiff to have

consented to the search, while the latter would be relevant to whether Plaintiff felt coerced into

allowing Defendants onto his property. These concepts are discussed further infra. Ross’s

testimony regarding Defendants’ statements during this conversation would also likely be

admissible as the statement of a party opponent. See Fed R. Evid. 801(d)(2). The same cannot be

said for Ross’s potential testimony regarding Plaintiff’s statement that he “told Officer Smith that

he could look for any alleged violations from the public sidewalk and then send notice by mail,

but that he was not permitted to enter his property without a warrant.” (Doc. 62-2, at 24); see also

Doc. 67 at 4 (arguing certain portions of Ross and Plaintiff’s affidavits constitute inadmissible

hearsay). This out of court statement by Plaintiff, as relayed through Ross’s potential testimony, is

relevant only to the extent it is true. That is, it is only relevant to the extent Plaintiff did in fact tell

Smith over the phone he could not enter without a warrant.

2. In support of their Motion for Summary Judgment, Defendants do not offer any defendant-

specific arguments. Accordingly, the Court does not conduct separate search and consent analyses

for each Defendant.

than [Plaintiff’s] driveway where we had all been standing during the initial conversation.”). After

the initial encounter on the driveway, Plaintiff then proceeds to walk towards the rear of his

property alongside Smith and Hill. Id. at 0:12-:20; Ex. A-4, at 0:01-2:22. The group then arrives

at the far rear of Plaintiff’s property, where the boat which was the subject of the nuisance

complaint and Plaintiff’s fence can be seen on video. Ex. A-4, at 2:40-4:10. Once beside the boat,

Officer Smith and Plaintiff discuss the boat’s status, with Plaintiff claiming the boat serves as a

“kid’s fort” and is not a junk vehicle. Id. at 2:40–3:30. Lieutenant Hill can then be seen inspecting

the front of Plaintiff’s boat and filling out paperwork. Id. at 4:15–5:56.

The recording continuously depicts a gap in Plaintiff’s fence adjacent to the boat; at one

point, Plaintiff and Lieutenant Hill step through this gap to discuss Plaintiff’s property line and

related matters. Id. at 6:10–7:40.3 After Plaintiff steps back through what he describes as his

“damaged” fence, the video shows a bright-orange sticker affixed to his boat. (Ex. A-5, at 0:11–

:31). This sticker is the City of Findlay’s “Must Move Vehicle” notice, which Smith attached to

the boat after determining its trailer lacked a valid registration and both the boat and trailer met

the definition of a “junk” or “inoperable” vehicle. See Doc. 62-2, at 5; id. at 21 (depicting a blank

copy of the notice sticker affixed to Plaintiff’s boat).4 The sticker indicates any failure to remove

the junk vehicles from the relevant property “may result in the vehicle[s] being impounded” and

criminal charges. Id. at 21. After further discussion regarding the boat, the group begins to return

to the front portion of Plaintiff’s property in the general direction of his residence. (Ex. A-5, at

1:53–3:59).5 Lieutenant Hill then approaches a minivan on Plaintiff’s property, which Plaintiff

3. In a later video, Plaintiff admits unspecified “perverts” and “peeping Toms” are able to see “right

through” the gap in his fence. (Ex. A-7, at 4:01-:16).

4. Plaintiff does not dispute the boat and trailer’s unregistered status. See Doc. 64, at 2–4.

5. Perhaps in an attempt to bolster their due process argument, discussed further infra, Defendants

identify multiple instances during the conversation between Lieutenant Hill and Plaintiff around

claims he uses to store food. (Ex. A-6, at 0:06–:37). Much like with the boat, Lieutenant Hill can

be seen inspecting the van and completing paperwork. Id. at 0:40–3:55. Lieutenant Hill then affixes

an orange “Must Move Sticker” onto the windshield of the van. Id. at 4:12–:20; (Ex. A-7, at 0:01–

:09). The trio returns to Plaintiff’s driveway and continues discussing the status of Plaintiff’s

vehicles, the complaint made against the same, and his options to abate the alleged nuisance. (Ex.

A-7, at 1:53–4:23).

While not depicted on video, Hill and Smith then left Plaintiff’s property. (Doc. 64-2, at

5). Shortly thereafter, Plaintiff claims he contacted the Hancock County Sheriff, the Hancock

County Prosecutor, the City Law Director, and the City Police Department to lodge complaints

regarding Defendants’ entry onto his property. Id. Plaintiff did not remove the boat and van from

his property or attempt to register the vehicles after this encounter with Defendants. Id.; Doc. 62-

2, at 7–8.

May 30, 2023

At some point on May 30, 2023, Officer Smith returned to Plaintiff’s property. (Doc. 62-

2, at 8); (Doc. 64-2, at 5). Again, the exact unfolding of events is hotly contested. Officer Smith

claims he viewed the boat and trailer through the fence at the rear of Plaintiff’s property despite

the fence having been fixed prior to his arrival. (Doc. 62-2, at 8). On his account, Officer Smith

then knocked on the front door of Plaintiff’s residence and rang the doorbell multiple times. Id.

After receiving no answer, Smith entered the rear of Plaintiff’s property wherein he noted the boat,

trailer, and van still had no valid registration. Id. Accordingly, because Plaintiff had neither

the boat wherein Lieutenant Hill advises Plaintiff of how he could abate the alleged nuisance

without further involvement from the City. See Doc. 62, at 12–13.

registered nor removed what the City deemed to be “abandoned” or “junk” vehicles, Smith called

Dick’s Towing company to effectuate removal. Id.

Contrarily, Plaintiff avers Officer Smith could not have knocked or rang his front doorbell

to give notice of his presence, as Plaintiff’s entire family was at home that day and heard nothing.

(Doc. 64-2, at 5). Plaintiff claims he had no notice whatsoever of Smith’s arrival on his property

and first realized what was transpiring when he “discovered a tow truck on [his] property removing

[his] minivan, with several officers standing by.” Id. Plaintiff further discovered his boat and trailer

had already been towed. Id. Plaintiff disputes Officer Smith’s account of how he viewed the boat

and trailer through the fence. Specifically, Plaintiff claims Officer Smith’s initial report of the

events of May 30 “falsely stated that [Plaintiff’s] fence had not been fixed and that he could see

the boat through a hole. In fact, the fence had been repaired nearly a week earlier.” Id. As evidence

of Officer Smith’s alleged misrepresentation, Plaintiff points to the fact that, after he accused

Officer Smith of lying on Facebook, the latter filed a supplemental report the next day “now

claiming he could see the boat through cracks in the fence.” Id. The documents attached to

Plaintiff’s opposition brief reflect this change, as Officer Smith wrote in his May 31 supplemental

report that, contrary to his initial report, “[t]he fence was fixed prior to my arrival at [the property].

With the fence repaired I still could see the boat through the cracks.” Id. at 21–23.

The Parties agree Plaintiff attempted to arrest the towing of his van by placing himself

between it and the tow truck. Id. at 5; Doc. 62-2, at 9. Plaintiff moved aside after Officer Smith

threatened to arrest him for obstruction of official business. (Doc. 62-2, at 8–9); (Doc. 64-2, at 5).

Plaintiff also attempted to arrest the towing of his vehicles by calling the Hancock County Sheriff

on Officer Smith for trespassing. (Doc. 62-2, at 8–9); (Doc. 64-2, at 5). After these attempts failed,

Officer Smith and Dick’s Towing successfully removed the van from Plaintiff’s property and

placed it, alongside the boat and trailer, in the Dick’s Towing impound lot. (Doc. 62-2, at 8–9);

(Doc. 64-2, at 6).

At no point throughout this entire saga did Defendants obtain a warrant to search Plaintiff’s

real property or to seize his van, the boat, and the boat’s trailer.

Procedural Background

Plaintiff originally brought multiple claims in this § 1983 action for Fourth Amendment

violations, deprivation of property without due process under the Ohio and United States

Constitutions, and equal protection violations; state law tort claims for replevin, conversion, civil

conspiracy, invasion of privacy, trespass, intentional and negligent infliction of emotional distress;

as well as various Monell claims against the City of Findlay and those acting on its behalf in an

official capacity. See generally Doc. 1. Motion practice followed, with the Court6 ultimately

dismissing all but Plaintiff’s Fourth Amendment Claim against Defendants Smith, Hill, and

Adkins as plead in Plaintiff’s Second Amended Complaint. See Doc. 41, at 12 (Second Amended

Complaint); Doc. 54, at 7 (“I conclude that Defendants Lt. Hill, Officer Smith, and Zoning Officer

Adkins are not entitled to have their instant Motion granted. I will, for now, allow the case to

proceed against them to determine whether the warrantless search and ultimate seizure of

Plaintiff’s van and boat were unlawful.”). The Court found Plaintiff plead a plausible Fourth

Amendment claim because both the May 22 and May 30 warrantless search and seizure, “arguably

occurred within the curtilage of Plaintiff’s house, an area in which Plaintiff had an expectation of

privacy.” Id. at 6–7.

6. This case was originally assigned to District Judge James G. Carr. On April 16, 2025, this case

was reassigned to the undersigned.

Importantly, the Court, and now the parties, assumed Plaintiff’s Second Amended

Complaint alleged two separate Constitutional violations: one related to the Defendants’ entry onto

and inspection of his property, and another related to the warrantless entry to seize of his boat, van,

and trailer. See Doc. 54, at 7; Doc. 62, at 24–27 (arguing both that Plaintiff “basically acquiesced”

to a search of an “open field” on his property during Defendants’ “May 22, 2023 personal visit”

and that “[Officer] Smith’s warrantless entry onto [Plaintiff’s] property on May 30, 2023, to

impound [Plaintiff’s] van and boat . . . did not constitute an unreasonable search or seizure”). This

is the case despite Plaintiff’s Second Amended Complaint only specifically alleging a violation

stemming from the May 30, 2023, removal of his boat, van, and trailer. See Doc. 41, at 12

(“Plaintiff alleges that the seizure of his vehicles was executed without a warrant, probable cause,

or any lawful justification, thereby infringing upon [Plaintiff’s] Fourth Amendment rights against

unreasonable searches and seizures.”). Thus, given the joint decision to treat Plaintiff’s Second

Amended Complaint as alleging two separate Fourth Amendment Violations, as well as the liberal

treatment afford pro se pleadings, see Haines v. Kerner, 404 U.S. 519, 520 (1972), the Court will

assess whether Defendants are entitled to summary judgment on Plaintiff’s Fourth Amendment

claim stemming from both the May 22 and May 30, 2023, encounters.

STANDARD OF REVIEW

Summary judgment is appropriate where there is “no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When

considering a motion for summary judgment, the Court must draw all inferences from the record

in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The Court is not permitted to weigh the evidence or determine

the truth of any factual matter in dispute; the Court determines only whether the case contains

sufficient evidence from which a jury could reasonably find for the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).

The moving party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986). This burden “may be discharged by ‘showing’—that is, pointing out to the district court—

that there is an absence of evidence to support the nonmoving party’s case.” Id. The nonmoving

party must go beyond the pleadings and “present affirmative evidence in order to defeat a properly

supported motion for summary judgment.” Anderson, 477 U.S. at 257. Further, the nonmoving

party has an affirmative duty to direct the Court’s attention to those specific portions of the record

upon which it seeks to rely to create a genuine issue of material fact. See Fed R. Civ. P. 56(c)(3)

(noting the court “need consider only the cited materials”). In deciding whether the parties meet

their respective burdens, the Court may only consider evidence which can be authenticated and

presented in an admissible form at trial. Fed. R. Civ. P. 56(c)–(e); Fed. R. Evid. 901.

DISCUSSION

To establish an actionable violation of his rights pursuant to § 1983, Plaintiff must

demonstrate: “1) the deprivation of a right secured by the Constitution or laws of the United States

and 2) [that] the deprivation was caused by a person acting under color of state law.” Miller v.

Calhoun Cnty., 408 F.3d 803, 812 (6th Cir. 2005) (quoting Johnson v. Karnes, 398 F.3d 868, 873

(6th Cir. 2005)). Here, Defendants do not contest they acted “under color of state law”— meaning

they “exercised power ‘possessed by virtue of state law and made possible only because the

wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988)

(quoting United States v. Classic, 313 U.S. 299, 326 (1941)). Thus, this Court must only determine

if Defendants are entitled to summary judgment on the issue of whether they individually deprived

Plaintiff of his Fourth Amendment rights.

The Fourth Amendment enshrines “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

“The basic purpose of this Amendment is to safeguard the privacy and security of individuals

against arbitrary invasions by government officials.” Carpenter v. United States, 585 U.S. 296,

303 (2018) (citation modified). The Fourth Amendment thus requires the Court to answer two

questions. First, did the Defendants conduct a search or seizure of Plaintiff’s property? “If so, was

the search reasonable?” Mockeridge v. Harvey, 149 F.4th 826, 833 (6th Cir. 2025).

Whether a “search” has occurred within the meaning of the Fourth Amendment is rooted

primarily in the reasonable expectations of the individual subject to the government action.

Specifically, “‘[w]hen an individual seeks to preserve something as private and his expectation of

privacy is one that society is prepared to recognize as reasonable,’ then governmental ‘intrusion

into that private sphere generally qualifies as a search.’” Chatrie v. United States, 609 U.S. ---,

2026 WL 1855568, at *8 (2026) (slip op.) (quoting Carpenter, 585 U.S. at 304). The quintessential

government search occurs when “law enforcement officials ‘obtain[] information by physically

intruding’—that is, trespassing—on private property” Id. (quoting United States v. Jones, 565 U.S.

400, 406–07 n.3 (2012)). A Fourth Amendment seizure occurs whenever a state actor meaningfully

interferes with an individual’s possessory interest in their real or personal property. See Brown v.

Battle Creek Police Dep’t, 844 F.3d 556, 566 (6th Cir. 2016). And a warrantless search or seizure

is “per se unreasonable under the Fourth Amendment subject only to a few specifically established

and well-delineated exceptions” including the consent of the searched. United States v. Jenkins,

92 F.3d 430, 436 (6th Cir. 1996) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).

As with the factual background of this case, the Court will divide its analysis between the

events of and arguments surrounding the May 22 and May 30, 2023, encounters between Plaintiff

and Defendants.

May 22, 2023

Defendants offer two primary arguments justifying their initial warrantless entry onto

Plaintiff’s property to inspect his boat, van, and trailer. First, they claim all three items were outside

the “curtilage” of Plaintiff’s residence and instead resided in an “open field” on the property. See

Doc. 62, at 25. If Defendants are correct on this point, they claim their initial entry onto Plaintiff’s

property did not constitute a “search” under the Fourth Amendment as there is no reasonable

expectation of privacy regarding objects located in open fields. See Widgren v. Maple Grove Twp.,

429 F.3d 575, 579–80 (6th Cir. 2005). Second, Defendants assert that, even if they conducted a

search on Plaintiff’s property, Plaintiff consented thereto. See Doc. 62, at 25–26 (“Based on

[Plaintiff’s] exchange with Off. Smith and Lt. Hill . . . Defendants submit a reasonable person

would have understood that [Plaintiff] consented to the search of the boat and van on his

property.”). The Court addresses each argument in turn.

Curtilage & Open Fields

“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.’” Widgren, 429 F.3d at 579 (emphasis added) (quoting Oliver v. United States, 466 U.S

170, 180 n.11 (1984)). That is, as Plaintiff identifies, see Doc. 64, at 8–9, being outside the curtilage

of the home is a necessary precondition to a portion of the property constituting an open field.

“The curtilage—the area ‘immediately surrounding and associated with the home’—is treated as

‘part of [the] home itself for Fourth Amendment purposes.’” Morgan v. Fairfield Cnty., 903 F.3d

553, 561 (6th Cir. 2018) (quoting Oliver, 466 U.S. at 180).7 Whether a particular area of one’s

property is considered curtilage is a “fact-intensive analysis” involving four factors: “(1) the

proximity of the area to the home[;] (2) whether the area is within an enclosure around the home[;]

(3) how [the] area is used[;] and (4) what the owner has done to protect the area from observation

by passersby.” Id. (citing United States v. Dunn, 480 U.S. 294, 301 (1987)).

In ruling on Defendants Motion to Dismiss, the Court previously found Plaintiff’s boat,

trailer, and van to be “arguably” within the curtilage of his home. See Doc. 54, at 6–7. Now, at

summary judgment, Defendants have not convinced the Court otherwise. Specifically, Defendants

have not demonstrated the absence of genuine, material factual dispute regarding whether the boat,

van, and trailer were within the “curtilage” of Plaintiff’s residence under the Dunn factors.

First, it is unclear exactly how far from Plaintiff’s home the van and boat were located.

While it took Plaintiff and Defendants Smith and Hill well over a minute to walk to the boat and

trailer located in the rear of Plaintiff’s property, see Ex. A-4, at 2:40-4:10, neither side in this

litigation offers a firm estimate of the distance from Plaintiff’s home to the boat and trailer. See

Doc. 62, at 25 (“[T]he boat and trailer were located at the far rear of the property.”); Doc. 64, at 9

(“[T]he vehicles were not parked immediately against the house.”). After Officer Smith inspects

Plaintiff’s boat and trailer, the group appears to walk back in the general direction of Plaintiff’s

home in order to inspect the van. See Ex. A-5, at 1:53–3:59. It is not at all clear from the video or

7. Of course, individuals can retain a constitutional privacy interest in a shelter or piece of personal

property (an “effect”) which is itself located in an open field. See, e.g., United States v. Basher,

629 F.3d 1161, 1169 (9th Cir. 2011) (explaining individuals retain a reasonable expectation of

privacy with respect to the inside of their tent placed at a campsite, but not in the area surrounding

it, as campsites are generally “dispersed,” “ill-defined,” and “open to the public and exposed”).

Here, however, Defendants merely needed to inspect the exterior of the van and boat for valid

registration, which would be readily visible to the public were such vehicles to be located in an

open field.

the Parties’ submissions to the Court how far away the van is located from Plaintiff’s home. This

lack of clarity cuts against Defendants’ Motion, as they bear the burden to demonstrate the absence

of facts supporting Plaintiff’s Fourth Amendment claim. In any event, proximity alone often bears

comparatively little weight on the curtilage analysis, as “there is no ‘fixed distance at which

curtilage ends.’” Mockeridge, 149 F.4th at 834 (quoting Daughenbaugh v. City of Tiffin, 150 F.3d

594, 598–99 (6th Cir. 1998)).

Second, Plaintiff puts forth affirmative evidence demonstrating the areas of his property

containing the boat, trailer, and van were “enclosed” along with the home by either man-made or

natural barriers. The boat is enclosed by a privacy fence which, at various times during the

submitted videos, appears to enclose the entirety of the rear of Plaintiff’s property as well as

Plaintiff’s residence. See Ex. A-4, at 6:10–7:40. Similarly, the van appears to be enclosed on at

least one side by a dense “natural wooded barrier.” (Doc. 64, at 9); Ex. A-6, 0:40–3:55. Given the

position of the van relative to the boat, it is likely the van is also enclosed by the privacy fence

running along the backside of Plaintiff’s property. Viewed in a light most favorable to Plaintiff, it

is at least plausible on the evidence currently before the Court the van, boat, and his residence are

surrounded on at least three sides by common operation of the privacy fence and natural wooded

area. See Daughenbaugh, 150 F.3d at 599 (considering “heavy tree coverage” as part of the home’s

enclosure because “requiring a person to expend resources and sacrifice aesthetics by building a

fence in order to obtain protection from unreasonable searches is not required by the Constitution”

(quoting Williams v. Garrett, 722 F. Supp. 254, 261 (W.D. Va. 1989)). Defendants do not contest

the veracity of the evidence Plaintiff invokes on this point.

Third, the nature of the use of the property cuts in favor of Plaintiff. A jury would be

entitled to credit any testimony Plaintiff offers to reaffirm the assertions he made to Officer Smith

and Hill regarding the boat being used as a “kid’s fort” for his children to play on. Ex. A-4, at

2:40–3:30. Similarly, a jury could find credible Plaintiff’s assertion the van was used to store food

for his family, and that the areas surrounding the boat, van, and trailer were used for gardening.

See Doc. 64, at 9; Doc. 64-2, at 6. Viewing the facts in a light most favorable to Plaintiff, food

storage, gardening, and providing children with a place to play all constitute “activities associated

with the privacies of domestic life.” Daughenbaugh, 150 F.3d at 600 (quoting United States v.

Depew, 8 F.3d 1424, 1427 (9th Cir. 1993)); see Hardesty v. Hamburg Twp., 461 F.3d 646, 652–

53 (6th Cir. 2006) (“The presence of space for gardening and hanging laundry out to dry has also

been found to weigh in favor of finding an area to be curtilage.” (citing Jenkins, 124 F.3d at 773)),

abrogated on other grounds as recognized by Bey v. Falk, 946 F.3d 304, 317 (6th Cir. 2019).

Fourth and finally, the effort taken to protect the relevant areas of Plaintiff’s yard counsels

in favor of deeming it curtilage. All that is necessary for Plaintiff to make his case under the fourth

Dunn factor is for the boat, trailer, and van to be shielded from passersby traveling on public

thoroughfares. See id. at 653. At the very least, the van and trailer’s location at the rear of Plaintiff’s

property, which is itself “a good distance from the road and . . . quite obviously[] behind the

house,” necessarily shields it from the view of the public traveling on the road to the front of

Plaintiff’s house. Jenkins, 124 F.3d at 773. While Plaintiff’s neighbors may have been able to see

through the gap in the fence adjacent to the boat, this does not strictly weigh against finding the

area to be curtilage. See Hardesty, 461 F.3d at 653 (“An area can be curtilage even where neighbors

have a view of the area.”).8 While it is further unclear from the record whether the van, which was

8. While Plaintiff admits there is a public right of way somewhere in the vicinity of his property

line, see Doc. 64-2, at 6, nothing in the record suggests the area surrounding the boat, trailer, and

van were visible therefrom on account of the fence’s gap. Additionally, Plaintiff introduced

evidence he repaired the gap in the fence prior to the May 30, 2023 entry onto his property, further

bolstering his curtilage argument at least with respect to this second purported search. See id. at 5.

located closer to the front of Plaintiff’s property, was visible from the road in front of Plaintiff’s

house, nothing in the record establishes the areas surrounding the boat, van, and trailer were all

visible from the road or any other public vantage point. If anything, viewing the evidence in a light

most favorable to Plaintiff, this fourth factor cuts in his favor.

Nor is the Court persuaded by Defendants invocation of Widgren for the proposition that

“a regulatory search is less intrusive than a criminal search” even where such search intrudes onto

the curtilage of the home. See Doc. 62, at 19 (citing Widgren, 429 F.3d at 583–85). For one, the

search in Widgren involved the inspector entering the curtilage to view aspects of the building

which were also in plain view from public vantage points. Widgren, 429 F.3d at 585–86.

Additionally, as recognized in Mockeridge, “Widgren’s rationale likely does not survive the

Supreme Court’s reinvigoration of the property-based approach, under which a search occurs when

a government official ‘physically intrudes on the curtilage to gather evidence.’” Mockeridge, 149

F.4th at 835 (quoting Collins v. Virginia, 584 U.S. 586, 593 (2018)).

Even after failing to carry their burden to demonstrate the areas around Plaintiff’s boat,

trailer, and van were outside the curtilage of his home and thus in an “open field” as a matter of

law, Defendants may still prevail on summary judgment if they establish Plaintiff consented to the

May 22, 2023, search of his property.

Consent

Consent in the Fourth Amendment context operates as an affirmative defense. That is, once

a § 1983 plaintiff demonstrates a search occurred, “[t]he burden to establish that the exception

applies is on the officer invoking consent.” Andrew v. Hickman Cnty., 700 F.3d 845, 854 (6th Cir.

2012). The officials who conducted the search must demonstrate it was “voluntary, unequivocal,

specific, intelligently given, and uncontaminated by duress or coercion.” United States v. Canipe,

569 F.3d 597, 602 (6th Cir. 2009). “Whether these requirements were met ‘is a question of fact to

be determined from the totality of all the circumstances.’” Id. (quoting Schneckloth v. Bustamonte,

412 U.S. 218, 227 (1973)). Summary judgment is thus proper only where all reasonable juries

would conclude Plaintiff consented according to the requirements outlined in Canipe.

Defendants, in both their Motion and respective affidavits, contend Plaintiff “basically

acquiesced to the officers being” on his property “once [Officer] Smith advised [Plaintiff] they

were there to investigate a complaint of junk vehicles.” (Doc. 62, at 25); accord Doc. 62-1, at 4;

Doc. 62-2, at 3; Doc. 62-3, at 3. But “mere acquiescence does not suffice to establish free and

voluntary consent.” United States v. Moon, 513 F.3d 527, 538 (6th Cir. 2008). The individual

subject to the search must instead offer some “affirmative statement[] indicating free and voluntary

consent.” Canipe, 569 F.3d at 603. And Defendants point to no such affirmative grant of consent.

Rather, their acquiescence argument hinges on Plaintiff’s decision to walk with Smith and Hill to

the rear of his property and discuss the matter of his boat and van with them. See Doc. 62, at 25–

26 (“[Plaintiff] then walked with [Smith and Hill] to view the boat and trailer, and then the van. .

. . Based on [Plaintiff’s] exchange with [Smith and Hill] . . . Defendants submit a reasonable person

would have understood that [Plaintiff] consented to the search of the boat and the van on his

property.”); Ex. A-4, at 0:01–4:10. But merely following officers and discussing the subject of the

search—even if fairly described as “acquiescence”—is insufficient to establish consent,

particularly where such actions may fairly be construed as “an expression of futility in resistance

to authority.” United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999). And a jury would be

entitled to credit testimony from Plaintiff reflecting the assertion in his affidavit that he personally

felt “coerced” into ceasing his objections to their search because of the Defendants’ assertions

regarding the criminal nature of their investigation and Plaintiff’s own prior run-ins with the police.

(Doc. 64-2, at 4–5); see Fed. R. Civ. P. 56(c)(4) (explaining an affidavit may be considered on a

motion for summary judgment where “the affiant or declarant is competent to testify on the matters

stated”). The Officers’ statements in this context would be admissible either for purposes unrelated

to their truth, specifically to demonstrate their effect on Plaintiff, or as the statement of a party

opponent. See Fed. R. Evid. 801(c)(2)–(d)(2).

A jury would also be entitled to credit testimony from Plaintiff regarding his repeated

statements to Defendants affirmatively and unequivocally denying consent to search his property.

See Doc. 64-2, at 4 (stating Plaintiff told Officer Smith over the phone he “could not enter [his]

property without a warrant” and reiterated this denial of consent by “telling [Defendants], at least

five times, to get off [his] property” after their arrival”). Again, Plaintiff’s testimony recounting

these out of court statements would be admissible to the extent it demonstrates their effect on

Defendants and their understanding of his consent (or lack thereof) to the search. See Fed. R. Evid.

801(c)(2). And the natural and reasonable effect of Plaintiff’s statements on Defendants is the core

of the consent inquiry, as “[t]he standard for measuring the scope of [an individual’s] consent under

the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable

person have understood by the exchange between the officer and the [individual]?” United States

v. Henry, 429 F.3d 603, 616 (6th Cir. 2005) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)).

The same is true with respect to Thomas Ross’s assertion he overheard Plaintiff repeatedly tell

Defendants they “were welcome to view his property from the street or sidewalk, but that they

were not permitted to enter onto his private property without a warrant.” (Doc. 64-2, at 24); see

supra n.1 and accompanying text.

In sum, Defendants fail to carry their burden to demonstrate the absence of a material fact

with respect to Plaintiff’s consent to the initial search of his property. As Defendants seemingly

concede, Plaintiff was “initially resistant” to the search, see Doc. 62, at 25; Doc. 62-2, at 3, and,

viewing the evidence in a light favorable to Plaintiff, at most merely acquiesced to the search of

his property. See Worley, 193 F.3d at 386. And because Defendants similarly failed to demonstrate

the May 22, 2023 search occurred in an “open field” to which no reasonable expectation of privacy

attached, they are not entitled to summary judgment on Plaintiff’s Fourth Amendment claim with

respect to such search.

May 30, 2023

In support of the second warrantless entry onto Plaintiff’s property by Officer Smith “to

impound [Plaintiff’s] van and boat,” Defendants invoke Sixth Circuit precedent permitting public

officials to seize property “that has been declared a public nuisance” so long as “the property owner

has been provided constitutionally adequate due process” in connection with deeming the property

a nuisance.9 See Doc. 62, at 27–28 (first citing Gammarino v. Sycamore Twp., 2025 WL 674222

(6th Cir.); and then citing Keene Grp., Inc. v. City of Cincinnati, 998 F.3d 306 (6th Cir. 2021)). As

a result, Defendants assert because Plaintiff “received adequate due process” through the posting

of the notices on each vehicle which “advised [Plaintiff] he could call the indicated number[] and

schedule a verification of the vehicles’ status,” the warrantless entry onto his property and seizure

of the vehicles was reasonable. Id. at 27.

Defendants overstate the holding of Widgren and Keene Group. In the latter, the court drew

from decisions of the Fifth and Tenth Circuits holding no warrant was required to enter onto

9. Defendants do not contend Officer Smith’s entry onto Plaintiff’s property in connection with

the May 30, 2023, towing of his boat and van did not constitute a “search or seizure” under the

Fourth Amendment. Rather, they contend such search or seizure was not unreasonable in light of

the vehicles’ location in an “open field” and the nuisance declaration procedures comporting with

constitutional due process. See Doc. 62, at 27–28. The same open field analysis conducted with

respect to the May 22, 2023 entry applies here, as there is no indication the vehicles were moved

prior to the second entry.

individual’s property to seize their personal property which “‘has been declared a public nuisance

by means of established police power procedures’ in the absence of a constitutionally protected

privacy interest.” Keene Grp., 998 F.3d at 315 (emphasis added) (quoting Freeman v. City of

Dallas, 242 F.3d 642, 644–45 (5th Cir. 2001)); accord id. at 316 (“No court has interpreted the

Supreme Court’s decision in Michigan v. Tyler, 436 U.S. 499 (1978) to require a warrant in an

administrative public nuisance abatement case in the absence of a reasonable expectation of

privacy.” (citation modified)). That is, warrantlessly entering an individual’s property to abate a

public nuisance is only per se reasonable if two requirements are met: (1) the procedures employed

to declare the property a nuisance comports with due process and (2) the abatement does not

involve encroaching on an area in which the Plaintiff maintains a Fourth Amendment privacy

interest. The Keene Grp. court recognized as much, as it first rejected the plaintiff’s due process

claim because they were “provided with ‘notice reasonably calculated, under all the

circumstances,’ of the pendency of the condemnation proceedings.” Id. (quoting Mullane v. Cent.

Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)). If Defendants are correct that following

proper nuisance declaration procedures rendered the subsequent abatement per se reasonable under

the Fourth Amendment, the Keene Group court could have ended its analysis there. Instead, it

proceeded to determine the “warrant requirement does not apply in this case” where the plaintiff

had “no reasonable expectation of privacy” in a property for which there was “suggestion [the

plaintiff] ever occupied the property or attempted to prevent others from accessing it.” Id. at 315–

17.

True, Gammarino cited Kenne Group for the unqualified proposition that “seizing property

that has been declared a public nuisance is reasonable, provided that the property owner has been

provided constitutionally adequate due process” without regard to whether the abatement involved

an invasion of a constitutionally protected privacy interest. Gammarino, 2025 WL 674222, at *3

(citing Keene Grp., 998 F.3d at 317). However, the Court finds this omission to be a result of the

factual similarities between the plaintiffs in Keene Group and Gammarino rather than a statement

generally applicable Fourth Amendment principles, as both cases involved investment properties

which plaintiffs failed to properly maintain and never occupied. See id. at *1; Keene Grp., 998

F.3d at 315 (“[T]he plaintiff retained little or no reasonable expectation of privacy in their

dilapidated, uninhabited rental properties after the City had entered orders declaring them an urban

nuisance, and the owner had failed to abate the code violations.” (citation modified) (quoting

Freeman, 242 F.3d at 652)). Thus, the Court is persuaded that a warrantless entry to abate a public

nuisance only per se reasonable when the abatement declaration procedures comport with

constitutional due process and the individual retains no constitutional privacy interest in the area

in which the nuisance resides. In any event, Keene Group, including its separate treatment of the

due process and privacy interest questions, is binding on this court—Gammarino is not. See

Keahey v. Marquis, 978 F.3d 474, 480 (6th Cir. 2020) (“[T]he paper of unpublished decisions

cannot escape the scissors of published opinions on point.”).

As a result, Defendants cannot succeed on their Motion with respect to the May 30, 2023,

entry onto Plaintiff’s property because, as explained supra, they have failed to demonstrate as a

matter of law that Plaintiff retained no constitutional privacy interest in the area of his property

Defendants entered to inspect and seize the vehicles. This conclusion precludes summary judgment

for Defendants even if the procedures employed to declare Plaintiff’s van and boat “junk vehicles”

and nuisances comported with constitutional due process requirements. The Court thus takes no

position on the due process question.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendants’ Motion for Summary Judgment (Doc. 62) be, and the same

hereby is, DENIED; and it is

FURTHER ORDERED that Plaintiff’s Motion for Leave to File Sur-Reply (Doc. 68), be

and the same hereby is, DENIED AS MOOT;

FURTHER ORDERED that Plaintiff’s Motion to Admit (Doc. 69), be and the same

hereby is, DENIED AS MOOT as the Court finds the evidence discussed herein is properly

considered under Federal Civil Rule 56. To the extent Plaintiff seeks a determination that such

evidence shall be admissible at trial, such determination would be premature.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE

Dated: August 24, 2026