Opinion
Cause No. IP01-1718-C-T/K
April 14, 2003
Ben S. Hoff III, Hoff Troiani, Nashville, IN.
Rudolph Wm. Savich, Attorney at Law, Bloomington, IN.
Andrew P. Wirick, Hume Smith Geddes Green Simmons, Indianapolis, IN.
ENTRY ON MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Plaintiffs allege violations of their rights under the Fourth Amendment to the United States Constitution. The Defendants have moved for summary judgment and moved to strike the Plaintiffs' surreply. The court decides as follows.
I. Summary Judgment Standard
Summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Windle v. City of Marion, Ind., 321 F.3d 658, 660-61 (7th Cir. 2003). The facts are viewed in the light most favorable to the nonmoving party and all reasonable inferences are drawn in that party's favor. Id. at 661.
II. Background Facts
With the one exception noted below, the following facts are taken from the Defendants' Statement of Material Facts as supported by appropriate citation to evidentiary materials. These facts are not disputed by the Plaintiffs. The Plaintiffs Tina D. Allender and Richard B. Allender brought this action under 42 U.S.C. § 1983 against the Defendants Dan. L. Huesman, John Hertz, Mike Moore, and Rick Followell, alleging violations of the Plaintiffs' federal constitutional rights under the Fourth Amendment.
The Complaint arises out of three incidents and a meeting.
First, on March 23, 2001, Defendant Rick Followell, a duly appointed deputy sheriff with the Brown County Sheriff's Department ("Sheriff's Department"), was dispatched to the Allender family property based on the complaint of the Mr. Allender's sister, Sandy Fields. It is undisputed that at the end of the driveway to the Allender property, just off the public road, two "Private Property, No Trespassing" signs were posted. When Deputy Followell arrived a number of guests were there following the funeral of Mr. Allender's mother. One of the guests went into the house and told Mr. Allender that a police officer was outside and wanted to speak to him. Mr. Allender went outside and asked Deputy Followell why he was on the property and what legal authority he had to be there. Mr. Allender said the property was owned by his wife. At the time Deputy Followell was sitting in a vehicle marked with the Sheriff's Department logos which was parked in the driveway leading up to the house. The deputy remained in his vehicle the entire time. After Mr. Allender told Deputy Followell why he and the others were there, he was told that Ms. Fields had complained of trespassing on the property. After talking to the deputy for a while, Mr. Allender told him that he had no right to be on the property. Deputy Followell then left.
The court understands that there is a hotly contested dispute among the Allender family over ownership of the real property on which the events at the center of this case occurred. Litigation on this subject is pending in the Brown County, Indiana Circuit Court. The property in question had been the residence of the parents of Richard and his siblings. A sister (Sandy Fields) and brother of Richard are questioning the validity of a deed purportedly issued by Richard's mother shortly before her death. The disputed deed allegedly created a joint tenancy between Richard's mother and his wife, Tina, with right of survivorship. Based on Richard Allender's previous visit to court (during which Tina appeared as a defense witness at trial), this imbroglio about the validity of a deed is no surprise. See United States v. Allender, 62 F.3d 909 (7th Cir. 1995), cert. denied, 516 U.S. 1076 (1996). The court makes no finding as to the true ownership of that real property because ownership is not material to this case, but for ease of reference refers in this entry to the property and house as the Allenders' or the Plaintiffs'.
This fact is taken from the Plaintiffs' additional facts offered on surreply.
Next, on March 29, 2001, Defendant Mike Moore, a duly appointed deputy sheriff with the Sheriff's Department, was dispatched to the Allender property in response to a complaint received by the Sheriff's Department that unauthorized persons were on the property and were taking things from the property. Mr. Allender was on a bulldozer, grading the driveway to the home with his son. He turned around and saw a vehicle marked with the Sheriff's Department logos parked in the driveway. He observed Deputy Moore speaking with an associate of Mr. Allender's, Mike Jaynes. Mr. Allender ran the bulldozer back up the driveway, shut it off and then asked Deputy Moore what he was doing. Deputy Moore exited his vehicle and asked Mr. Allender what right he had to be on the property. Mr. Allender responded that his wife owned the property and asked the deputy to step inside the house. Once inside, he showed the deputy the deed to the property, and the deputy told Mr. Allender that he would go back to the recorder's office and check it out. Mr. Allender asked the deputy to leave and he did.
Approximately one week later, the Allenders met with Sheriff Dan L. Huesman to discuss what was happening. They showed him the deed to the property and that was basically the conversation. At no time did Sheriff Huesman enter the Allender property.
On June 19, 2001, Defendant John Hertz, a duly appointed deputy sheriff with the Sheriff's Department, was dispatched to the Allender family residence based on a complaint. At the time Mr. Allender had rented the property to tenants. Neither Plaintiff was present when Deputy Hertz arrived. The tenants informed Mr. Allender that they observed Deputy Hertz on the premises in his police vehicle near the gravel-covered portion of the road by the driveway. When the Allenders arrived, Deputy Hertz was walking around the semi-trailer which was parked on the property and owned by the tenants. He then walked over to the Allenders and asked them what was going on, who owned the semi-trailer, why it was there, and if anything had been moved from the home. Mr. Allender told the deputy that he had no right to be there or ask him any questions. Deputy Hertz continued to question Mr. Allender, but did not arrest the Allenders, handcuff them, or restrain their liberty in any way. Deputy Hertz did not go inside the home.
III. Discussion
A. Motion to Strike Surreply
Before getting to the merits of the Allenders' claims, the court addresses the Defendants' Motion to Strike Plaintiffs' Surreply in Opposition to Defendants' Motion for Summary Judgment, Plaintiffs' Statement of Additional Facts and Plaintiffs' Designation And Tender of Additional Evidence. Local Rule 56.1(d) allows for a surreply in very limited circumstances: "If, in reply, the moving party relies upon evidence not previously cited or objects to the admissibility of the non-moving party's evidence, the non-moving party may file a surreply brief limited to such new evidence and objections. . . ." S.D. Ind. L.R. 56.1(d). These circumstances are not presented here.
In any event, consideration of the evidence offered by the Plaintiffs on surreply would not change the outcome of the dispositive motion, as discussed below.
The Plaintiffs argue that the Defendants made various factual assertions in their reply brief that were not made in their initial brief, for example, that the areas in question were viewable to the public. But, as the Plaintiffs concede, the Defendants did not offer additional evidence. And, the Defendants did not object to any evidence offered by the Plaintiffs in response to the summary judgment motion. Of course, counsel's argument in a brief to the extent not supported by evidentiary submissions will be disregarded by the court. Because the Plaintiffs' surreply was improper, the motion to strike the surreply is GRANTED.
B. Motion for Summary Judgment
The Allenders sued the Defendants under 42 U.S.C. § 1983. To establish a claim under § 1983, they must prove that: (1) the defendants deprived them of a right secured by the Constitution and laws of the United States, and (2) the defendants acted under color of state law. Windle v. City of Marion, Ind., 321 F.3d 658, 661 (7th Cir. 2003). The second element is undisputed in this case. The issue is whether the Defendants deprived the Plaintiffs of a right protected by the Constitution or federal law.
The Allenders contend that the deputies and sheriff violated their Fourth Amendment rights. The Fourth Amendment protects the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. Const. amend. IV. "The touchstone of Fourth Amendment analysis is whether a person has a `constitutionally protected, reasonable expectation of privacy.'" California v. Ciraolo, 476 U.S. 207, 211 (1986) (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring)). In deciding whether the expectation of privacy was reasonable, the court considers "`not whether the individual chooses to conceal assertedly private activity,' but instead `whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment.'" Ciraolo, 476 U.S. at 212 (quoting Oliver v. United States, 466 U.S. 170, 1821-83 (1983)). The Plaintiffs contend that they had a reasonable expectation of privacy in the areas the deputies entered because the areas were within the curtilage of their home.
Assuming without deciding that the Allenders have standing to bring the claims asserted in this case, the Defendants are nonetheless entitled to summary judgment. The Allenders cannot prove that any Defendant violated their Fourth Amendment rights.
The curtilage is "the area outside the home itself but so close to and intimately connected with the home and the activities that normally go on there that it can reasonably be considered part of the home" to which the Fourth Amendment's protection extends. United States v. French, 291 F.3d 945, 951 (7th Cir. 2002); see also Oliver, 466 U.S. at 180; United States v. Redmon, 138 F.3d 1109, 1124 (7th Cir. 1997) (Flaum, J., concurring) (defining curtilage "as an area that receives heightened Fourth Amendment protection by virtue of the uses to which it is put and the extent to which those uses are exposed to the public"). The Supreme Court has identified a four factor inquiry to determine whether an area is within the curtilage: "[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." United States v. Dunn, 480 U.S. 294, 301 (1987). The "centrally relevant consideration," however, is "whether the area in question is so intimately tied to the home itself that it should be placed under the home's umbrella of Fourth Amendment protection." Id.
Though the areas traversed by the deputies were close to the house, "the proximity to the home, standing by itself, does not per se, suffice to establish an area as within the curtilage." French, 291 F.3d at 952 (citing Oliver, 466 U.S. at 182 n. 12). Consideration of the other factors identified in Dunn leads to the inescapable conclusion that the deputies did not enter the curtilage of the Allenders' home.
First, the Allenders cannot show that the areas which the deputies traversed were within an enclosure surrounding the home which would afford an expectation of privacy. The Seventh Circuit has concluded that "public drives, sidewalks, or walkways (even those which lead to a rear side door) are not within the curtilage of the home when they are not enclosed by a gate or fence." French, 291 F.3d at 953. In United States v. Evans, 27 F.3d 1219 (7th Cir. 1994), the court said that "it is not objectionable for an officer to come upon that part of [private] property which has been opened to public common use. The route which any visitor or delivery man would use is not private in the Fourth Amendment sense[.]" Id. at 1229 (quotation omitted) (holding that agent who had plain view of interior of home from the driveway had not made observation from curtilage); see also Bilida v. McCleod, 211 F.3d 166, 171 (1st Cir. 2000) (noting that curtilage is subject to the warrant requirement as long as the law enforcement agent "intrudes beyond areas (e.g., the path to the front door) where uninvited visitors are expected").
The deputies in this case drove up the driveway from the road to the house and took the path that any visitor or delivery man would use. Deputy Followell remained on the driveway at all times, and Deputy Moore left the driveway only when invited into the house by Mr. Allender. The Allenders offer evidence that the areas in question were enclosed by a wooden rail and wire fence, but the rail and fence would not prohibit view into the areas in question, and there is no evidence that at the time the deputies entered the property there were any physical barriers such as a closed or locked gate preventing their access onto the driveway or as they made their way toward the house. See United States v. Tolar, 268 F.3d 530, 532 (7th Cir. 2001) ("An open gate invites entry, and a chain-link fence does little to assert a privacy interest . . . in details visible from outside the fence."). Thus, the Allenders could have no reasonable expectation of privacy in their driveway.
Next, other than the two "Private Property, No Trespassing" signs posted at the end of the driveway just off the public road, there is no evidence that the Allenders took any other measures to protect the areas traversed by the deputies from observation by passers by. For this reason, United States v. Depew, 8 F.3d 1424, 1427-28 (9th Cir. 1993) (defendant chose the residence because it was in a remote, secluded area; it was not visible from the highway and the defendant had a post office box in town and read his own meter so no postal worker or meter reader came to his property, and defendant posted "No Trespassing" signs on property), on which the Allenders rely, is distinguishable. Though the house itself may have been obscured from the roadway, there is no evidence that the area where the deputies parked — twenty feet from the house — also was obscured from the roadway.
The posting of the "Private Property, No Trespassing" signs alone is insufficient. In Oliver v. United States, 466 U.S. 170 (1983), the Supreme Court rejected the argument that the steps taken to protect privacy establish that expectations of privacy in an open field are legitimate. Id. at 182. In that case, the petitioner and respondent had erected fences and "No Trespassing" signs around secluded property on which they planted marijuana. The Court said that Fourth Amendment protection did not extend to every area in which barriers had been erected and "No Trespassing" signs had been posted. Id. at 182 n. 13. And, as stated, there is no evidence of any physical barriers such as a closed or locked gate which would have prevented the deputies from driving their vehicles onto the driveway from the public road to the vicinity of the house. See United States v. Ventling, 678 F.3d 63, 65-66 (8th Cir. 1982) ( Fourth Amendment not violated by U.S. Forest Service special agent who entered publicly visible driveway where defendant had posted "No Trespassing" signs but did not maintain a locked or closed gate).
In their response to the motion for summary judgment, the Allenders offered no evidence to establish the nature of the uses to which the areas in question were put. Thus, consideration of the third Dunn factor supports the conclusion that the deputies were not in an area within the curtilage of the home.
With their surreply, however, the Allenders attempted to show that the areas in question were put to special use. For the reasons previously stated, this part of the surreply was improper and should be stricken. Thus, the additional evidence offered on surreply fails to raise a triable issue as to the uses of the areas at issue. Yet, even if the Plaintiffs' additional evidence is considered and viewed in the light most favorable to them, it along with all the other evidence of record fails to create a genuine issue as to whether the deputies entered the curtilage of the home.
That is, with the possible exception of Deputy Hertz who allegedly walked around to the rear of the house. But even if he entered the curtilage, the Plaintiffs have not shown that he violated their Fourth Amendment rights for the reasons stated below.
The Allenders' additional evidence establishes that the house is located at the end of a gravel driveway off of a public road, which driveway is approximately three-tenths of a mile long. The house is almost totally obscured from the public road by trees. The deputies parked their vehicles on the driveway about twenty feet from the house and within the fenced area which extended between twenty-five feet and fifty yards from the house on its sides. Two "Private Property, No Trespassing" signs were posted at the end of the driveway just off the public road. Over the years, the Allender family engaged in activities such as children playing, tending to horses, and taking photographs on memorable occasions within the fenced area.
None of the photographs submitted by the Plaintiffs raises a reasonable inference that any of these activities took place on the driveway where the deputies parked their vehicles. Many of the photographs appear quite dated, and Mr. Allender states that these activities occurred "over the years." (R. Allender Aff. ¶ 11.) There is no evidence that the types of activities depicted in the photographs took place in the areas at issue during a more recent time period. And, even assuming that the Plaintiff's evidence raises a genuine issue of material fact as to the uses of the areas traversed by the deputies, consideration of at least two of the other four Dunn factors lead to the conclusion that these areas were not within the home's curtilage (again with the possible exception of Deputy Hertz's alleged walk around to the back door).
Moreover, even if the deputies encroached upon the curtilage of the Allenders' home, they did not violate the Fourth Amendment because law enforcement may encroach upon the curtilage for the purpose of asking questions of the occupants. See United States v. Hammen, 236 F.3d 1054, 1059 (9th Cir. 2001). The undisputed evidence is that this was the purpose for which the deputies entered the areas of the Allender property and this is what the deputies did once there. Also, a law enforcement officer "may, in good faith, move away from the front door when seeking to contact the occupants of a residence." Id. at 1060 (holding officers' actions in leaving front door and circling house in an attempt to locate someone with whom they could talk did not violate Fourth Amendment). Thus, even if Defendant Hertz entered the curtilage, he did not violate the Plaintiffs' Fourth Amendment rights by walking up to the front door of the house, knocking on it, and then when no one answered, walking around to the rear of the house.
The only deputy to actually enter the house was Deputy Moore, and that was at Mr. Allender's specific request that he step inside. Once Mr. Allender asked him to leave, he did. Entering the home on Mr. Allender's request cannot constitute an invasion of the Allenders' reasonable expectation of privacy, and, the Plaintiffs have offered no evidence that Deputy Moore rummaged through their home while he was inside. Indeed, they do not allege that he did anything untoward inside the house.
The Plaintiffs complain that Deputy Followell videotaped the entire sequence of events while he was on the property, and argue that video surveillance is one of the most intrusive forms of searches performed by the government. They also complain that the deputy did not offer his sympathies to Mr. Allender. One could question whether what happened in this case amounts to video surveillance, but, in any event, "[v]ideo surveillance of a common or open area is generally not considered a search." State v. Thomas, 642 N.E.2d 240, 245 (Ind.Ct.App. 1994) (citing Florida v. Riley, 488 U.S. 445, 449 (1989)). The evidence is that the video camera was mounted onto Deputy Followell's vehicle which was parked on the driveway, an area not entitled to Fourth Amendment protection, and captured only those persons or things in front of the vehicle. The Allenders have not offered sufficient evidence to raise a triable issue as to whether this limited videotaping infringed on their reasonable expectation of privacy. Although it may have been polite for Deputy Followell to offer his sympathies to Mr. Allender for his mother's death, the failure to do so does not amount to a constitutional violation. See Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 474 (7th Cir. 1997) (allegations that officer was grumpy, discourteous and had an unpleasant demeanor did not allege acts of constitutional dimension).
The Allenders argue that the Defendants have the burden to show probable cause or exigent circumstances to justify a warrantless search. However, this assumes that the Allenders had a constitutionally protectable privacy interest in the areas the deputies entered. As explained, they did not, so the Defendants need not show probable cause or exigent circumstances. See Siebert v. Severino, 256 F.3d 648, 654 (7th Cir. 2002) ("[I]f a search occurs outside the home or the home's curtilage — even if it is on private property — the Fourth Amendment's guarantee applies only if the property owner has a legitimate expectation of privacy in the area.").
As for Sheriff Huesman, the Defendants contend he is entitled to summary judgment because he did not personally participate in the alleged deprivation of the Plaintiffs' constitutional rights. "Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus, liability does not attach unless the individual defendant caused or participated in a constitutional deprivation." Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996), cert. denied, 520 U.S. 1230 (1997) (quotation omitted). The Allenders offer evidence that they met with Sheriff Huesman, showed him the deed to the property and asked him to inform his deputies to stay off their property. However, Sheriff Huesman did not inform the dispatchers and all deputies about the deed and instructed his deputies to respond to all complaints from Ms. Fields as if there were no history behind the complaints. The Plaintiffs argue that the sheriff "adopted a policy that every call should be answered regardless of the history of the caller" which resulted in the repeated violations of their Fourth Amendment rights. (Pls.' Mem. Opp'n Defs.' Mot. Summ. J. at 13.)
Even assuming some personal involvement by Sheriff Huesman or the existence of such a policy, since none of the deputies violated the Allenders' Fourth Amendment rights, neither the Sheriff's conduct nor the existence of such a policy could have violated their Fourth Amendment rights either. See Windle v. City of Marion, Ind., 321 F.3d 658, 663 (7th Cir. 2003) ("As for the claim of municipal liability, a plaintiff must prove that the individual officers are liable on the underlying substantive claim in order to recover damages from a municipality under either a failure to train or failure to implement theory."). Thus, to the extent the Defendants are sued in their official capacities, the claims against them are claims against the County, see, e.g., Kentucky v. Graham, 473 U.S. 159, 165 (1985); Boyce v. Moore, 314 F.3d 884, 890-91 (7th Cir. 2002) (claim against a defendant in his or her official capacity is essentially a claim against the municipality); and, the official capacity claims fail because the Plaintiffs cannot show a constitutional deprivation. See Tesch v. County of Green Lake, 157 F.3d 465, 477 (7th Cir. 1998) (no municipal liability under § 1983 where no underlying substantive liability).
Though the Complaint does not state in what capacities the Defendants are being sued, it does allege that they were acting under color of law, which suggests official capacity claims. See Stevens v. Umsted, 131 F.3d 697, 706 (7th Cir. 1997).
The court holds that the Allenders have insufficient evidence to raise a triable issue as to whether any Defendant deprived them of a Fourth Amendment right. Therefore, the Defendants are entitled to summary judgment in their favor. Moreover, even if the Plaintiffs could raise a genuine issue of material fact as to the deprivation of a Fourth Amendment right, it appears that the Defendants would be entitled to qualified immunity, which would shield them in their individual capacities from liability for damages. See Flynn v. Sandahl, 58 F.3d 283, 289 (7th Cir. 1995). The Allenders have not and cannot show that the deputies or the sheriff violated a right that was clearly established, that is, they cannot show that "in the light of pre-existing law" the unlawfulness of the conduct of the deputies or the sheriff in this case was "apparent." White v. City of Markham, 310 F.3d 989, 993 (7th Cir. 2002).
IV. Conclusion
The Defendants' motion to strike surreply is GRANTED and their motion for summary judgment will be GRANTED. Judgment will be entered.
ALL OF WHICH IS ORDERED.