Bleavins, John C. v. Bartels, Joel H.

In the

United States Court of Appeals

For the Seventh Circuit

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No. 99-4292

JOHN C. BLEAVINS,

Plaintiff-Appellee,

v.

JOEL H. BARTELS, ROGER BAY, and

VERNON MCGREGOR,

Defendants-Appellants.

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Appeal from the United States District Court

for the Central District of Illinois.

No. 98-1236—Michael M. Mihm, Judge.

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ARGUED JANUARY 10, 2002—DECIDED APRIL 16, 2003

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Before HARLINGTON WOOD, JR., RIPPLE, and ROVNER,

Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge. The Illinois De-

partment of Revenue determined that plaintiff-appellee

John Bleavins owed the state $11,415.70 in back taxes,

penalties, and interest. Bleavins failed to respond to a

notice and demand for payment; therefore, on May 2, 1995,

Joel Bartels, an employee of the Illinois Department of

Revenue, issued a seizure warrant pursuant to § 1109 of

the Illinois Income Tax Act, 35 ILL. COMP. STAT. 5/1109.

This administrative warrant was addressed to the “Coun-

ty Sheriff, Macon County” and directed the sheriff to “levy

on, seize and sell the taxpayer’s property, as shown on the

2 No. 99-4292

attached sheet.” The attached sheet included a heading

with Bleavins’ name and social security number and read

as follows: “1-Pontoon Boat, 1-Speed Boat.”

Before Bartels issued the warrant, Department of Re-

venue employee Roger Bay was sent out to Bleavins’ home

to determine whether there were assets available for

seizure. Bay did not enter Bleavins’ property, but sat

fifty to seventy yards away and used binoculars to inven-

tory the site. He observed a flatbed trailer, a utility trailer,

some tools related to Bleavins’ carpentry business, the

boats, and a pickup truck. Bay recorded license plate

numbers from the truck, the trailers, and the boats. Bay

then completed a “Checklist for Seizure” form which he

provided to Bartels, together with a sketch of Bleavins’

property showing the location of the items listed above

as well as permanent structures. On the checklist, Bay

recommended seizure of the pickup truck, the tools, the

pontoon boat, and the speed boat. Bay returned to the

site several days before the warrant was issued to make

sure that the property was still there.

On May 2, Bartels and Bay, together with Vernon

McGregor, manager of the Field Compliance Division for

the Department of Revenue, met with Deputies Baum,

Terry, and Veach of the Macon County Sheriff’s Office. The

six men then proceeded to Bleavins’ home to execute the

warrant. They entered onto Bleavins’ property, and Dep-

uty Baum served the warrant on Bleavins, who voiced

strong objections to the seizure of his property. McGregor

determined that the men should not take the pontoon

boat or the speed boat because he believed that they

would not be able to take the boats without damaging

them. McGregor then asked the deputies to run a license

plate check on the flatbed and utility trailers which were

located near the boats. When the check revealed that the

trailers were registered to Bleavins, McGregor informed

Bleavins that the trailers would be seized in lieu of the

No. 99-4292 3

boats, despite the fact that McGregor knew that the trail-

ers were not listed on the seizure warrant. The trailers,

which were towed away, contained about fifty tools.

An inventory of the trailers and their contents was

completed approximately six weeks after the seizure. On

the advice of the Macon County State’s Attorney, a new

seizure warrant was prepared on July 3, 1995. This war-

rant listed all of the property that had been seized on May

2. A copy of the July 3 warrant was served on Bleavins.

Meanwhile, on June 12, 1995, Bleavins filed suit in the

Circuit Court of Macon County, seeking the return of the

items that had been seized. On July 7, the court ordered

that all of the property be returned, and Bleavins con-

cedes that the items were returned to him in the same

condition as when they were taken.

Bleavins then filed this civil rights suit in state court

in Macon County in March 1996, alleging a violation of his

rights under the Fourth and Fourteenth Amendments. The

suit named Bartels, Bay, McGregor, the three deputies,

and Lee Holsapple, the Macon County Sheriff, as defen-

dants. On April 26, 1996, the Department of Revenue

defendants filed a notice of removal pursuant to 28 U.S.C.

§ 1441(a). The case was removed to the United States

District Court for the Central District of Illinois. The

district court granted summary judgment in favor of

Bleavins on the liability issue and denied the defendants’

claims of qualified immunity.

A two-day jury trial was held on the issue of damages,

following which the jury awarded Bleavins $1,000 in

damages. The Department of Revenue defendants filed

a notice of appeal on December 16, 1999. The County de-

fendants filed a notice of appeal on December 17, 1999.

Bleavins filed a notice of appeal as to the amount of dam-

ages on December 29, 1999. Both the County defendants

and Bleavins voluntarily dismissed their appeals pursu-

4 No. 99-4292

ant to Fed. R. App. P. 42(b) after the parties agreed to a

settlement in conjunction with discussions held pursuant

to Cir. R. 33. This appeal, therefore, deals only with the

claims raised by the Department of Revenue defendants

(“appellants”). This panel issued its original opinion in

this case on March 15, 2001; however, that opinion was

withdrawn when we granted appellants’ petition for

rehearing. Following supplemental briefing, the case

was reheard by the original panel on January 10, 2002.

ANALYSIS

Appellants contend the seizure of the trailers did not

violate Bleavins’ Fourth Amendment rights, and therefore,

the district court’s grant of summary judgment should

be reversed. Alternatively, they contend that, even if they

did violate Bleavins’ Fourth Amendment rights by seiz-

ing items within the curtilage of his home without a

valid Fourth Amendment warrant, they are nevertheless

entitled to qualified immunity. We review both issues

de novo. Myers v. Hasara, 226 F.3d 821, 825 (7th Cir. 2000).

Bleavins does not contest appellants’ assertion that

the seized trailers were subject to a valid tax lien.1 Under

G.M. Leasing Corp. v. United States, 429 U.S. 338, 351-52

(1977), a tax seizure that does not involve an invasion of

privacy does not implicate Fourth Amendment concerns.

“[T]he Fourth Amendment protects two types of expecta-

tions, one involving searches, the other seizures. A search

occurs when an expectation of privacy that society is

prepared to consider reasonable is infringed. A seizure of

property occurs where there is some meaningful interfer-

1

Under 35 ILL. COMP. STAT. 5/1101, a lien in favor of the State of

Illinois attaches to “all property and rights to property, whether

real or personal,” belonging to a delinquent taxpayer.

No. 99-4292 5

ence with an individual’s possessory interests in that

property.” Soldal v. Cook County, 506 U.S. 56, 63 (1992)

(internal quotations and citations omitted). A judicial

warrant is not required under the Fourth Amendment for

seizure of property that is subject to a valid tax lien. G.M.

Leasing, 429 U.S. at 352. Therefore, the focus of our inquiry

is on the search aspect of the Fourth Amendment. We must

determine whether appellants, in seizing the trailers,

interfered with Bleavins’ legitimate privacy interests.

In their supplemental brief on rehearing, appellants

acknowledge that the administrative warrant at issue in

this case does not, and was not intended to, meet the

requirements of the Fourth Amendment. In response

to questioning at oral argument, counsel for appellants

conceded that, if appellants entered into an area in which

Bleavins had a legitimate privacy interest, they would

have needed to obtain another warrant, issued by a neu-

tral and detached magistrate, to justify their entry. Clearly,

Bleavins has a legitimate privacy interest in his home

and in any of the surrounding area that would be consid-

ered curtilage. Siebert v. Severino, 256 F.3d 648, 653-54

(7th Cir. 2001) (“Both a home and the home’s curtilage . . .

are within the scope of the Fourth Amendment’s protec-

tion.”). Therefore, if the seized trailers were located with-

in the curtilage of Bleavins’ home, appellants’ warrantless

entry into the area would constitute a violation of Bleavins’

Fourth Amendment rights.2

The curtilage analysis set out by the Supreme Court

in United States v. Dunn, 480 U.S. 294 (1987), is well

known. The central question in determining whether an

2

Despite the administrative warrant, the entry was warrant-

less in the Fourth Amendment sense because appellants did not

possess a judicial warrant at the time they entered Bleavins’

property.

6 No. 99-4292

area can be considered curtilage is whether that area “is

so intimately tied to the home itself that it should be

placed under the home’s ‘umbrella’ of Fourth Amend-

ment protection.” Id. at 301.

[C]urtilage questions should be resolved with particular

reference to four factors: the proximity of the area

claimed to be curtilage to the home, whether the area

is included within an enclosure surrounding the home,

the nature of the uses to which the area is put, and the

steps taken by the resident to protect the area from

observation by people passing by.

Id. These factors, however, do not constitute “a finely tuned

formula.” Id.

However, even if it were to be determined that the sei-

zure occurred within the curtilage of Bleavins’ home,

appellants may nevertheless be entitled to qualified im-

munity. Qualified immunity shields government officials

performing discretionary functions from liability for civil

damages “as long as their actions could reasonably have

been thought consistent with the rights they are alleged

to have violated.” Anderson v. Creighton, 483 U.S. 635,

638 (1987). Qualified immunity is an issue which should

be resolved at the earliest possible stage in the litigation.

Saucier v. Katz, 533 U.S. 194, 201 (2001). The qualified

immunity analysis begins with a determination as to

whether the facts as alleged, viewed in the light most fa-

vorable to Bleavins, show a violation of a constitutional

right. Id. If so, the question then turns to whether the

right that was violated was clearly established. Id. at 200.

Bleavins contends the trailers were within the curtilage

of his home when they were seized. Appellants argue that

the available evidence suggests that the trailers were

outside the curtilage of Bleavins’ home at the time of

their seizure. The district court did not make any finding

on the issue. The inquiry into whether an area can be

No. 99-4292 7

considered curtilage is fact intensive. See United States

v. Breza, 308 F.3d 430, 435 (4th Cir. 2002).3 The record in

the present case, however, contains very little informa-

tion regarding the layout of Bleavins’ property. Plaintiff

offered as an exhibit a sketch of the property made by

Bleavins. The record also contained the sketch of Bleavins’

property prepared by appellant Bay. From these sketches

it appears that the trailers were located in an area of the

property behind the house and garage. It also looks like

the area is at least partially fenced in and enclosed by

shrubs. However, Bay testified in his deposition that he

was able to read the license plate numbers on the trail-

ers from across the street using binoculars. We find the

record as it currently stands factually inadequate to sup-

port a curtilage determination. Therefore, we remand

the case to the district court to consider whether the trail-

ers 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.

The district court’s grant of summary judgment in fa-

vor of Bleavins is reversed. The case is remanded to the

district court for further proceeding consistent with this

opinion.

REVERSED and REMANDED.

3

The Breza court recognized that a dispute exists among the

circuits as to the proper standard for appellate review of a district

court’s curtilage determination. 308 F.3d at 435. The district

court in the present case did not reach the curtilage issue, so we

need not address this issue at this time.

8 No. 99-4292

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-16-03