# Taylor v. Michigan Department of Natural Resources

> Court of Appeals for the Sixth Circuit · September 14, 2007 · 502 F.3d 452

URL: https://www.frixlaw.com/law-library/cases/9575303

## Case

- **Full name:** Alan TAYLOR, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Defendant, Paul Rose, Conservation Officer, in Both His Official Capacity and Individual Capacities; Rebecca A. Humphries, Director of the Department of Natural Resources, in Her Official Capacity, Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** September 14, 2007
- **Citations:** 502 F.3d 452; 2007 U.S. App. LEXIS 22021; 2007 WL 2682884
- **Precedential status:** Published
- **Opinion:** Dissent by Aldrich
- **Judges:** Kennedy and Gibbons, Circuit Judges Aldrich, District Judge
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9575303

## How later opinions describe it (automated extraction)

- observing that the community caretaking rationale for government intrusion requires consideration of objective reasonableness, rather than subjective intent

## Opinion text

ANN ALDRICH, District Judge,
dissenting.
I write separately to disagree with the panel’s analysis of the Fourth Amendment issues. Therefore, I believe that the district court should be reversed in part and affirmed in part.
I. Constitutionality Of Search
A. Katz v. United States Framework
The Fourth Amendment states in relevant part, “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause.” U.S. Const, amend. IV. Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), provides the standard two-part test governing Fourth Amendment search violations. Specifically, (l)whether the individual has manifested a subjective expectation of privacy in the object of the challenged search; and (2) whether society is willing to recognize that expectation as reasonable. Widgren v. Maple Grove Township, 429 F.3d 575, 578 (6th Cir.2005). The Sixth Circuit in Widgren further delineates the second prong of the Katz test. The second prong consists of two considerations. The first consideration is “what a person had an expectation of privacy in.” Id. The second *459 consideration examines “what the person wanted to protect his privacy from.” Id. at 579. This requires an examination of the degree of government intrusion in (i) the methods used in the search, and (ii) the purpose for the search. Id. at 583. Based on the facts of this case, there was an unconstitutional search of Taylor’s home.
Here, there is no disagreement as to whether Taylor manifested a subjective expectation of privacy. He most certainly did. It is with respect to the second prong of the Katz test, however, that I disagree with the panel.
First, Taylor’s expectation of privacy in his home and the curtilage surrounding it satisfies the initial element of the second prong of the Katz test. Part one of the second prong of the Katz test looks at what Taylor had an expectation of privacy in. Widgren, 429 F.3d at 578 . Principally, “[tjhis inquiry centers on ‘whether the human relationships that normally exist at the place inspected are based on intimacy, confidentiality, trust or solitude and hence give rise to a “reasonable” expectation of privacy.’ ” Id. at 578-579 (citations omitted).
Taylor’s expectation of privacy in his home and the curtilage surrounding his home satisfies this standard. Taylor’s home is a place where such intimate relationships exist and take place. Indeed, the Supreme Court accords special status to the sanctity of the home:
The Fourth Amendment’s protection of the home has never been tied to measurement of the quality or quantity of information obtained. In Silverman, for example, we made clear that any physical invasion of the structure of the home, “by even a fraction of an inch,” was too much, 365 U.S. at 512, 81 S.Ct. 679 , and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the non-intimate rug on the vestibule floor. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.
Kyllo v. United States, 533 U.S. 27, 37 , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001) (emphasis in original). Therefore, Rose’s peering into the home, garage, and bedroom window, was peering into a place that the Court recognizes intimate relationships occur. Taylor’s expectation of privacy was accordingly valid, thus satisfying the first element of the second prong of the Katz test.
Likewise, the second element of the second prong of the Katz test is also satisfied. In evaluating this element, our “inquiry focuses on the government intrusion at issue.” Widgren, 429 F.3d at 579 . This requires assessing the degree of the government intrusion by “addressing both the methods used and the purpose for the intrusion.” Id. at 583 .
The methods used in this case were sufficiently intrusive to categorize the search as unconstitutional. This was more than a mere naked-eye inspection of the exterior of the house, as was the case in Widgren . Here, Rose did in fact touch and look into the house. See id. at 585 (noting that the property assessor “did not touch enter or look into the house.”). Furthermore, Rose obtained neither consent nor a warrant before breaching the curti-lage of Taylor’s property. Id. (stating that “tax appraisers would be well advised to obtain consent or a warrant as a matter of course before breaching the curtilage because, in many instances, such an intrusion may be a Fourth Amendment search”); see also id. at 583 (stating “breaching the curtilage and other trespass, though not necessarily determinative, are also relevant to the degree of government intru *460 sion.”). While it may be true that a passing policeman need not avert his eyes, here Rose walked up to various windows in Taylor’s garage and home, pressed his face and hands against these windows and peered inward; what this method lacks in subterfuge and advanced technology it makes up for in sheer flagrancy.
“Like the methods used, the purpose for the interference bears upon the intrusiveness of government action.” Id. Neither party disputes the fact that Rose’s initial purpose was a lawful one. Rose was on the land investigating a complaint about the fencing on Taylor’s property. And while one might applaud Rose for his concern about a potential intruder on Taylor’s property, this purpose does not sanction Rose’s search. Noting that the property check was brief, involved a low degree of intrusion, and was conducted in the middle of the afternoon, the district court opines that Rose was not carrying out a criminal investigation, which would carry with it the imprimatur of “suspicion of crime.” Taylor v. Humphries, 402 F.Supp.2d 840, 847 (W.D.Mich.2005) (citations omitted). I disagree.
Rose states that his concern was that an intruder might be on the premises, a concern that was heightened when he saw the curtains drawn, which led him to believe that a burglar might be present. The purpose of this search then became a criminal investigation. Rose was searching for evidence of a burglar; to wit, he checked all the doors to see if they were open, and he checked all the windows to see if anyone had broken in. The fact that Rose was searching for someone other than Taylor does not make it any less a search of Taylor’s home. Indeed, Rose might just as easily have come across a marijuana plant growing in Taylor’s bedroom (notably, at oral argument, counsel for Defendant-Appellees was unable to offer an answer as to how such an encounter and subsequent arrest would not be an unconstitutional search). 1 Given that, Rose’s argument amounts to “no harm done.” While the harm in terms of damages may in fact be small, it is no less an unconstitutional search. See, e.g., People v. Haddad, 122 Mich.App. 229, 230 , 332 N.W.2d 419 (Mich.Ct.App.1982) (affirming the trial court’s determination that an “officer had no right to peer through the [defendant’s] bedroom window when [the officer] only had a suspicion of an assault and battery and a mere suspicion as to the safety of a person who might have been present.”).
B. Curtilage
In addition to protecting Taylor’s home, the Fourth Amendment also extends its scope of protection to the immediately surrounding property, or curtilage. Specifically, “The protection afforded the curti-lage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” California v. Ciraolo, 476 U.S. 207, 213 , 106 S.Ct. 1809 , 90 L.Ed.2d 210 (1986). This protection, however, is not limitless. Id. (noting that police need not cover their eyes on public thoroughfares, nor to activities knowingly exposed to the public, nor when they observe from a public place).
*461 The property immediately surrounding Taylor’s home qualifies as curtilage under the Supreme Court’s four factor test, and is therefore entitled to Fourth Amendment protection. Defendants-Appellees claim that Rose did not intrude upon protected curtilage. The four factors used to determine whether an area is a home’s curtilage are:
(1) the proximity of the area claimed to be curtilage to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by.
Widgren, 429 F.3d at 582 (citations omitted). First, the property at issue immediately surrounds Taylor’s home. Indeed, the defendants-appellees do not contest the satisfaction of the first factor. Second, the property is also within an enclosure surrounding the home. While there might not be physical enclosures of this land, Taylor claims, that like the defendant in United States v. Depew, 8 F.3d 1424 (9th Cir.1993), he chose the property because it was remote, in a secluded area, not visible from any highway due to a long driveway, and had thick trees blocking any public view of the residence. Additionally, Taylor’s property is entirely fenced-in on two sides with six foot chain link fencing, including the gate entrance with the “No Trespassing” signs. Collectively, this satisfies the notion of an enclosed property. Third, the nature of the use of the land was for Taylor’s enjoyment, as well as his entrance and exit from the land. This, too, satisfies the standards for curtilage. Lastly, we have already mentioned some of steps taken by Taylor to protect the area from observation, including his choice of a secluded locale away from the highway, the fencing placed on the property, as well as the no trespassing signs. All four factors are satisfied, thus qualifying that area as curtilage and requiring Fourth Amendment protection. (NB: The district court acknowledged that Rose “likely breached the curtilage of the home.” Taylor, 402 F.Supp.2d at 847 n. 7).
C. Exceptions To Warrant Requirement
Given that Taylor had an expectation of privacy in his home and the surrounding curtilage, the next issue is whether a basis for the police action existed. First we consider the exigent circumstances exceptions to getting a warrant. The Sixth Circuit has held that:
In general, exigent circumstances exist when real immediate and serious consequences would certainly occur if a police officer were to postpone action to get a warrant. The exigent circumstances exception relies on the premise that the existence of an emergency situation, demanding urgent police action, may excuse the failure to procure a search warrant. The United States Court of Appeals for the Sixth Circuit has identified the emergency situations giving rise to the exigent circumstances exception to the warrant requirement as (1) hot pursuit of a fleeing felon, (2) imminent destruction of evidence, (3) the need to prevent a suspect’s escape, or (4) a risk of danger to the police or others.
See United States v. McClain, 430 F.3d 299, 304 (6th Cir.2005) Here, no exigent circumstances justify Rose’s warrantless search.
In the first place, one can ask the ex ante question as to whether Rose had probable cause to get a warrant to search the house. Rose was within his rights to go to the house to attempt to contact the homeowner regarding his visit, but Rose’s stated purpose for going to the house was his suspicion about a burglar/trespasser. He saw tire tracks and footprints leading *462 to the home. By themselves, these facts do not point in any particular direction. The tracks could just as well have belonged to the homeowner as to a trespasser. Similarly, with respect to the open curtains, they might just as well signal that the homeowner is at home, or might simply be an aesthetic choice. Still, Rose maintains that his years of experience taught him that burglars often leave curtains open in order to watch for oncoming homeowners. These circumstances do not rise to the level of exigent circumstances. There was no hot pursuit of a fleeing felon; there was no concern about imminent destruction of evidence; there was no need to prevent a suspect’s escape (indeed, there was no suspect!); and there was no risk of danger to police or others. While one could perhaps contend that fear of a burglar/trespasser might give rise to this last exception, the circumstances, and Rose’s behavior, both speak to the contrary. As discussed previously, tire tracks are ambiguous; they might merely have indicated that Taylor was on the property. They certainly are not clear harbingers of risk to the police or others. Similarly, Rose’s behavior on Taylor’s property did not indicate any danger, let alone risk of danger qualifying as exigent circumstances. Rose walked leisurely around the property, at times with both hands in his pockets. He never took out his weapon nor appeared concerned about any potential risk to his safety. Based on the facts then, Rose’s search was not justified by the exigent circumstances exception.
Similarly, the “community caretaking” exception does not apply to the facts of this case. The district court categorized the purposes of Rose’s search as “community caretaking.” The Supreme Court, in Cady v. Dombrowski, 413 U.S. 433, 441 , 93 S.Ct. 2523 , 37 L.Ed.2d 706 (1973), describes community earetaking as those actions that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” While in Cady the Court held that a warrantless search of a vehicle’s trunk for a weapon following the arrest of a police officer for drunk driving was incidental to the police function to protect the “safety of the general public,” the Court’s conclusion that the search was constitutional was premised in part on the Court’s “prior recognition of the distinction between motor vehicles and dwelling places.” Id. at 447 , 93 S.Ct. 2523 .
Case law indicates that the community caretaking function articulated in Cady has been principally applied to the warrantless searches of automobiles. See United States v. Bute, 43 F.3d 531, 535 (10th Cir.1994) (holding that the community caretaking exception to the warrant requirement is applicable only in cases involving automobile searches); see also United States v. Erickson, 991 F.2d 529, 531 (9th Cir.1993) (holding that the fact that a police officer is performing a community caretaking function, however, cannot itself justify a warrantless search of a private residence). The Sixth Circuit makes it clear that “the community eare-taking function of the police applies only to actions that are totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” United States v. Williams, 354 F.3d 497, 508 (6th Cir.2003) (citation omitted). With that in mind, it is clear that Rose’s conduct does not fall within the sanctuary of community caretaking. First, Rose’s search of Taylor’s property was not an automobile search. Second, by Taylor’s own admission, he walked around and peered into Taylor’s home because he was worried about a potential burglar/trespasser. Therefore, the very nature of this search was centered upon, not divorced from, detection, investigation, or acquisi *463 tion of evidence relating to the violation of a criminal statute. Therefore, it is inappropriate to apply the community caretak-ing exception to the facts of this case.
II. Qualified Immunity
Section 1983 imposes civil liability on any person who, acting under color of state law, deprives another person of the “rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983 . Taylor contends that Rose, while acting under color of state law, violated the Fourth Amendment by conducting an unreasonable search of his home. Rose concedes that he was acting under color of state law in his capacity as a state conservation officer. Nevertheless, Rose, in addition to denying a violation of the Fourth Amendment, also raised the affirmative defense of qualified immunity. The district court below found that Rose was entitled to qualified immunity. I disagree.
“Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 , 125 S.Ct. 596 , 160 L.Ed.2d 583 (2004) (citation omitted). Put another way, a state official sued in his individual capacity, such as Rose, performing a discretionary function is “shield[ed] ... from civil damages liability as long as [his] actions could reasonably have been thought consistent with the rights [he is] alleged to have violated.” Myers v. Potter, 422 F.3d 347, 352 (6th Cir.2005) (citations omitted).
The qualified immunity analysis requires a two-part inquiry evaluating two closely linked questions. Saucier v. Katz, 533 U.S. 194 , 200, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). First, in the light most favorable to the plaintiff, “do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier, 533 U.S. at 201 , 121 S.Ct. 2151 . Second, if a constitutional right was violated, “the next, sequential step is to ask whether the right was clearly established.” Id. Since I have already concluded that a constitutional right was violated, I move on to whether or not the right was clearly established. I believe that it was.
For a right to be clearly established, the “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987). “The right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.” Saucier, 533 U.S. at 202 , 121 S.Ct. 2151 (citation omitted). In making this determination, the court must “look first to decisions of the Supreme Court, then to decisions of this Court and other courts within our circuit, and finally to decisions of other circuits.” Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir.2005) (citation omitted). Government officials, however, can be on notice that their conduct violates established law “even in novel factual circumstances.” Hope, 536 U.S. at 741, 122 S.Ct. 2508 (citation omitted).
It is axiomatic that the Fourth Amendment protects homeowners from unreasonable government searches. See supra. In this case, it would be clear to a reasonable officer that Rose’s conduct was unlawful. Indeed, the above analysis leads to such a conclusion. To wit, Rose, without consent, conducted a warrantless search, breaching the curtilage of the home absent any exigent circumstances. Moreover, even under the express laws of Michigan regulating the Department of Natural Resources, Rose was aware that as “an officer appointed by the Department,” any author *464 ized entry upon “private property” for the purposes of “patrolling, investigating or examining” violations of gaming laws without a warrant “does not include dwellings or dwelling houses or that which is within the curtilage of any dwelling house.” M.C.L.S § 324.1602(1).
Although this standard requires considering the specific facts here, we need not do so to the point of absurdity. Clearly, this was a home in a remote location, and we do not have a direct case holding that a police officer cannot constitutionally search remote homes — fortunately we do not need one. The Fourth Amendment provides protection to all “home[s]” — tenement, farmhouse, and mansion alike. Given these circumstances, a reasonable officer should conclude that this investigation did violate Taylor’s constitutional rights.
III. Prospective Injunctive Relief
Taylor also seeks review of the district court’s ruling that he lacks standing to seek injunctive relief against Humphries in her official capacity as director of the DNR.
The jurisdiction of the federal court is limited by the threshold constitutional requirement of an actual case or controversy. See U.S. Const, art. Ill, § 2. “Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 , 110 S.Ct. 1717 , 109 L.Ed.2d 135 (1990) (internal quotations and citations omitted). Further, “[pjast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” L.A. v. Lyons, 461 U.S. 95, 102 , 103 S.Ct. 1660 , 75 L.Ed.2d 675 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974)). The district court correctly applied Lyons to the case at hand. In Lyons , the plaintiff sought a permanent injunction against the defendant city of Los Angeles, enjoining it from using chokeholds during an arrest unless the victim was threatening the immediate use of deadly force. Lyons, 461 U.S. at 98 , 103 S.Ct. 1660 . The Court held that the plaintiff failed to establish a case or controversy justifying the injunction sought because his standing depended on whether he was likely to suffer future injury from a police officer’s chokehold. Id. at 105 , 103 S.Ct. 1660 . The Court held that the plaintiff lacked standing because he was unable to show an imminent threat of future police brutality. Id. Ultimately, the Court concluded that,
[ajbsent a sufficient likelihood that he will again be wronged in a similar way, [the plaintiff] is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional.
Id. at 111 , 103 S.Ct. 1660 .
Here, the district court correctly applied this reasoning to Taylor. Taylor has alleged that a custom or practice of the DNR is unconstitutional. Like the plaintiff in Lyons , Taylor’s standing hinges on whether he is likely to suffer future injury from the allegedly unconstitutional policy. And, as in Lyons , Taylor has failed to show any likelihood of future injury. At best, Taylor has shown that he was subject to a single instance of unconstitutional activity, and might one day, as a homeowner, be subject to such injury again. But “while past illegal conduct might constitute evidence ... regarding whether there is a real and immediate threat of repeated injury, ‘where the threat of repeated injury *465 is speculative or tenuous, there is no standing to seek injunctive relief.’ ” Blakely v. United States, 276 F.3d 853, 873 (6th Cir.2002) (quoting Grendell v. Ohio Supreme Court, 252 F.3d 828, 833 (6th Cir.2001)). Taylor’s fear of future injury is especially tenuous given the letter he received from then-DNR director Cool, promising no further security checks on Taylor’s property. Like the plaintiff in Lyons , without any evidence of a threat of repeated injury, Taylor is no more entitled to an injunction than any other homeowner in the State of Michigan who asserts nothing more than that a certain law enforcement practice is unconstitutional. Lyons, 461 U.S. at 111 , 103 S.Ct. 1660 . Accordingly, I would affirm the district court’s denial of Taylor’s request for injunctive relief.
Conclusion
For the reasons stated above, I believe the decision of the district court should be reversed in part, and affirmed in part.
. The exchange went as follows: I asked, “You agree, I think, that if the officer had happened to see, say, a marijuana plant growing inside the house when he looked in the window, that evidence couldn't be used to convict the homeowner of growing plants. So, if that’s the case, then why isn’t this a Fourth Amendment violations?” Counsel for Defendants-Appellees first noted the complexity of Fourth Amendment jurisprudence, and then answered, “I thought I might get asked a question like that from you, and I thought about it, and I thought about it, and I’m not sure what the answer is.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9575303. Public record. Not legal advice.