explaining that the “presence of fences, closed or locked gates, and ‘No Trespassing’ signs on an otherwise open field . . . has no constitutional import”
How later courts described this case
- explaining that the “presence of fences, closed or locked gates, and ‘No Trespassing’ signs on an otherwise open field . . . has no constitutional import”
- finding that property consisting of 175 acres, with no buildings, bordered by an interstate highway a major state highway is an “open field”
- "Although a landowner who is present and attempting to bar entry may have a subjective expectation of privacy, the Supreme Court has rejected 'the suggestion that steps taken to protect privacy establish that expectations of privacy in an open field are legitimate.’ [Oliver, 466 U.S.] at 182, 104 S.Ct. [1735]. For constitutional purposes, therefore, a landowner’s presence does not differ in consequence from the erection of a fence or 'No Trespassing’ sign: none of these actions creates a reasonable expectation of privacy in open fields.”
- “[The] presence of fences, closed or locked gates, and ‘No Trespassing’ signs on an otherwise open field . . . has no constitutional import”
Written by the judges who cited it.
The opinion
*375 DAVID A. NELSON, Circuit Judge,
dissenting.
Rule 33, Fed.R.Crim.P., authorizes the granting of a new trial “if required in the interest of justice.” Judge Zatkoff, the district judge who conducted both of defendant Rapanos’ trials, concluded that “a miscarriage of justice will result” if Mr. Rapanos is fined or sent to prison on the strength of a verdict returned by a jury that saw the defendant raked over the coals in cross-examination for electing to exercise rights which the judge believed were secured by the United States Constitution. United States v. Rapanos, 895 F.Supp. 165, 169 (E.D.Mich.1995) (quoting United States v. Thame, 846 F.2d 200, 207 (3d Cir.), cert. denied, 488 U.S. 928 , 109 S.Ct. 314 , 102 L.Ed.2d 333 (1988)). 1
Judge Zatkoff knew far more about this complex criminal case than I do. Given the respect to which his view of the case is entitled, I find myself unable to conclude that Judge Zatkoff abused his discretion in determining that the interest of justice required a new trial. I agree with the conclusion reached by my colleagues on the panel as to the timeliness of the defendant’s post-trial motion, but I respectfully dissent from the panel’s decision to reinstate a verdict which the trial court found to be tainted.
I
If error has crept into the trial of a criminal case, as the majority opinion notes (quoting United States v. Breinig, 70 F.3d 850, 852 (6th Cir.1995), which in turn quotes United States v. McBride, 862 F.2d 1316, 1320 (8th Cir.1988)), the judge who presided at the trial is the person best situated to “weigh the errors against the record as a whole” in order to determine whether a new trial is justified. A judge who has seen and heard the entire proceeding, listening to all the evidence and arguments of counsel and perhaps sensing the reactions of the jurors, will obviously have a better feel for the case than “an appellate court reading a cold record-” Breinig, id. The trial judge, accordingly, will be in a much better position to determine the need for a new trial than any appellate panel can hope to be. See United States v. Draper, 746 F.2d 662, 665-66 (10th Cir.1984).
Where, as is true here, large portions of the trial proceedings have been omitted from the transcript furnished the appellate panel, the panel cannot even attempt “[to weigh] the record as a whole.” Accordingly, unless Judge Zatkoff was clearly wrong in concluding that he should have stopped the prosecution from cross-examining defendant Rapa-nos about what the defendant was trying to hide when he refused to let a team of government investigators enter his property, it seems to me that we have no sensible alternative but to let the retrial order stand.
My understanding of the factual background differs in a few respects from that reflected in the majority opinion. Before addressing the legal question, therefore, it may be helpful for me to sketch out some of my factual assumptions.
II
Two senior government ecologists inspected Mr. Rapanos’ Salzburg Road land with Rapanos and his lawyer on March 1,1989, in order to determine if there were regulated wetlands on the site. On the basis of this on-site inspection, as one of the ecologists subsequently testified, the officials made a determination that the property contained “rather extensive wetlands.”
The officials did not collect soil samples and vegetation specimens on March 1 — as they would have done had they intended to delineate the boundaries of the wetlands— but one of them, Regional Supervisor Richard Sikkenga, wrote the words “wetland DETERMINATION]” in his daily journal. 2 *376 The officials told Mr. Rapanos and his lawyer that a delineation of the wetlands would be necessary before a permit could be issued for commercial development of the property. It might take the Department of Natural Resources months to find time for performing a delineation, the officials said, and they recommended that Mr. Rapanos have the delineation done by an outside consultant instead.
Mr. Rapanos subsequently engaged Dr. Frederick Glenn Goff for this purpose, selecting him from a consultants’ list prepared by the state. On March 16, 1989, Dr. Goff met on the site with Regional Director Sikkenga and Charles Dodgers, a member of Mr. Sik-kenga’s staff. Among the subjects discussed were the methodology to be used in performing a delineation and the locations at which cores of soil would be extracted. Mr. Rapa-nos did not attend this particular on-site session, but his lawyer, Jake Allen, did attend. Mr. Allen was undoubtedly privy to the discussion about extracting core samples from various parts of the property.
The preliminary results of Dr. Goffs delineation studies did not satisfy Mr. Rapanos, and Dr. Goff was discharged. Mr. Rapanos seems to have felt, rightly or wrongly, that like two consultants who followed him, Dr. Goff was trying to curry favor with the Department of Natural Resources, thereby protecting his consulting business, by treating as “wetlands” areas that were not in fact wetlands under what Rapanos conceived to be a commonsense view of things.
Mr. Rapanos thought of wetlands in terms of swamps, or marshes, or bogs. He ultimately took the position that for the most part, at least, his Salzburg Road property— which had been heavily wooded until he set up a sawmill and cut the timber — was simply not subject to regulation under a statute dealing with the discharge of pollutants into the nation’s navigable waters.
Notwithstanding the absence of a comprehensive wetland delineation, and proceeding without a permit, Mr. Rapanos removed (or ground up) tree stumps, shrubs, and other vegetation from the Salzburg Road property; tilled and graded the soil; and brought in a considerable quantity of sand. Mr. Dodgers, of the Department of Natural Resources, entered the site repeatedly during May, July, and August of 1989 and observed the progress of the work on areas that he considered to be wetlands. Mr. Dodgers took a series of photographs, some of which were introduced in evidence at trial.
Mr. Dodgers drafted a cease and desist order that was issued by District Supervisor Steven Spencer on July 24. Dodgers then conducted three on-site inspections — taking photographs each time — after the cease and desist order had been issued. These inspections took place on August 9, 10, and 14. Finally, on August 22, 1989, a team of five DNR officials — Harrington, Sikkenga, Spencer, Dodgers, and Program Coordinator Peg Bostwick — met with Mr. Rapanos at the entrance to his property.
During the second trial of the case, the prosecutor repeatedly tried to get Mr. Rapa-nos to admit that he was told on August 22 that the team had been assembled “to do a wetland delineation.” 3 Mr. Rapanos denied having been told this, and his testimony seems consistent with that of at least some of *377 the state witnesses. Whether or not a delineation had been planned for August 22, however, it appears to be beyond dispute that members of the team gave Mr. Rapanos to understand that at some point they intended to perform a delineation. Mr. Rapanos took vigorous exception to their doing so.
According to testimony given at the second trial by Program Coordinator Peg Bostwick, Mr. Rapanos was
“unwilling to accept any delineation or mapping of wetland boundaries on the property by our staff. He indicated he felt that there were differences between state methods and federal methods that made it too confusing. There was discussion about that with our staff. Our staff attempted to clarify for him that there was not a great deal of difference, but all he needed to do was to follow the state law. He indicated that was not satisfactory.
He indicated that until he researched the subject and came up with a method of mapping wetland boundaries that was acceptable to him, he would not accept any definition of boundaries that we would make on that property.”
Mr. Rapanos and his lawyer undoubtedly understood that the work which the DNR expected to perform on the Salzburg Road property would entail the collection of a significant quantity of physical evidence. Subsequent events support that understanding. On November 7, 1989, an expanded team from the DNR went on the property with a search warrant. Although the team still did not perform a comprehensive delineation— the government has acknowledged that no such delineation was ever performed on the property — a member of the team used a bucket auger to extract 12-inch soil samples from up to five feet below the surface of the ground. Thirty-five such samples were bagged and taken off the property, along with numerous specimens of vegetation.
Mr. Rapanos was unwilling to give his consent to any of this, at least in the absence of a satisfactory understanding on the standards to be used by the people doing the work. He made his position clear to the DNR team at the meeting on August 22, and he adhered to that position at a meeting he and his lawyer had with Messrs. Harrington and Spencer on August 30.
It was not just a cursory inspection for which consent was being withheld. (There had been many such inspections already, of course.) Rapanos and his lawyer must have known that the DNR officials wanted physical evidence — the taking of soil samples had been discussed as early as March 16, it will be recalled, in the presence of lawyer Allen— and Rapanos and Allen were insisting that the officials get a search warrant before entering the property. Judge Zatkoff ultimately concluded that Mr. Rapanos had a constitutional right to insist on the warrant — and if my understanding of the facts is correct, I think he did too.
III
I agree with my colleagues on the panel that the Salzburg Road property must be treated as “open fields.” We are also in agreement, I believe, on the proposition that the open fields doctrine is limited in scope to what can be seen in such fields. See, in this connection, Allinder v. State of Ohio, 808 F.2d 1180, 1184-86 (6th Cir.1987), and the cases there cited. The open fields doctrine does not give the government carte blanche to mine evidence from beneath the surface of the fields. Yet here the jury heard extensive testimony about the taking of soil borings, and the jury could fairly have inferred that this was one of the things to which Mr. Rapanos and his lawyer were unwilling to agree. I have no doubt that Judge Zatkoff drew such an inference.
The cross-examination to which Mr. Rapa-nos was subjected is far too long to be set forth in its entirety, and the passages excerpted in the majority opinion give an accurate sense of what the prosecutor was up to. One further passage may be of interest, however:
“Q. What were you trying to hide?
A. I’m sorry?
Q. What were you trying to hide?
A. Nothing. I’m just following orders.
*378 Q. Who is the boss, you or Mr. Allen?
A. In that respect, Mr. Allen.
Q. So you and Mr. Allen were trying to hide something?
A. No.”
This exchange appears in the transcript only a page or two after the prosecutor attempted to establish that Mr. Rapanos understood that the purpose for which the DNR team had gathered at the site on August 22 was to perform a wetland delineation forthwith.
The district court’s published opinion on the granting of a new trial speaks for itself, and I shall not attempt to summarize the opinion here. We must not forget the context in which the district court rendered its decision, however, and in this connection it seems to me that the following circumstances deserve emphasis:
— The evidence of the defendant’s guilt was far from overwhelming, and the jury’s verdict could have gone either way in this case. 895 F.Supp. at 169-70 .
— At one stage in its deliberations the jury even reported a deadlock, “with several people on each side that say they won’t change their minds.” Id. at 170 .
— Although the defendant was not entitled to an acquittal on the basis of prose-cutorial misconduct (among other things, the defendant had objected to being likened to the devil and to having his treeless property compared to the Warsaw ghetto without Jews), there was certainly “prosecutorial overkill” in this case. Id. at 169 .
A circumstance not mentioned by the district court, but one that strikes me as significant, is that the jury heard a great deal about Mr. Rapanos attempting to hide the findings made by Dr. Goff on the extent to which there were wetlands on the Salzburg Road property. I do not mean to suggest that the prosecutor was guilty of any impropriety in this connection. I do think, however, that the Goff situation was likely to have lent particular bite to the cross-examination of Mr. Rapanos about what he was trying to hide by refusing to let a DNR team enter his property.
I am far from sure, based on what I have been able to read, that I would have granted a new trial had I been in Judge ZatkofFs shoes. But I was not in his shoes. For reasons indicated above, I know less about the case than Judge Zatkoff did. And whether Judge Zatkoff was right or wrong in his assessment of the interest of justice, I am not persuaded that he abused his discretion in making the judgment call he did. I would let the order for a new trial stand.
. The "interest of justice" standard is such a broad one that the granting of a new trial is not necessarily dependent upon the trial court's concluding that it committed legal error. In the interest of justice, a trial court may grant a new trial based on reconsideration of its disposition of any discretionary matter. See United States v. Vicaria, 12 F.3d 195, 198 (11th Cir.1994).
. The other official, Hal Harrington, testified that a "determination" involves the question whether wetlands are present on a site at all, while a formal “delineation” is an exercise that results in *376 quite a precise demarcation of the boundaries of the wetlands. The usage in the trial record is far from consistent, even on Mr. Harrington's part, and a Corps of Engineers "Wetlands Delineation Manual" that was received in evidence seems to use the terms interchangeably. The manual indicates that where on-site inspections are necessary, even "routine determinations” — to say nothing of "comprehensive determinations”— may entail digging soil pits at representative locations and taking samples of soil from beneath the surface.
. The understanding that a “delineation” was intended is also reflected in a trial brief filed by the government on July 5, 1994, during the course of the first trial. In response to an objection to the cross-examination of Mr. Rapanos about his refusal to let the team on the property prior to the issuance of a search warrant, the brief argued that the government was entitled to show that "the main reason that the DNR could not make an earlier (and hence more accurate and complete) delineation of the wetlands on defendant’s property was that defendant prevented DNR from entering the property ... at an earlier time, thereby giving defendant more time in which to alter the condition of the land.” (Emphasis supplied.) The government did not cite the "open fields” doctrine at all in this connection.