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Rowley v. McArthur

United States District Court, D. Utah, Central Division

December 21, 2018

JAKE ROWLEY, et al Plaintiffs,
DANIEL D. MCARTHUR, et al Defendants.



         This matter is before the Court on Defendants' Motion for Summary Judgment on Remaining Claim of Plaintiff Jake Rowley, filed on June 13, 2018. (Dkt. No. 105.) Plaintiff timely filed a memorandum in opposition to Defendants' Motion on August 8, 2018. (Dkt. No. 112.) Defendants filed a timely reply in response to Plaintiff's opposition on September 28, 2018. (Dkt. No. 115.) Pursuant to civil rule 7-1(f) of the United States District Court for the District of Utah Rules of Practice, the Court elects to determine the motion on the basis of the written memoranda and finds that oral argument would not be helpful or necessary. DUCivR 7-1(f).


         Early in the morning of May 17, 2013, City of St. George code enforcement officer Malcom Turner drove by a rental house inhabited by Jake Rowley. (Dkt. No. 112 at 1-2.) Turner claims that as a result of that drive by, he observed potential municipal code violations on the property. Specifically, Turner reported that he first observed that the side-yard fence appeared to be in substantial disrepair. (Dkt. No. 105 at 5.) The fence was six feet high, upright, and enclosed the side-yard of the house which was fully attached to the backyard. (Dkt. No. 112 at 2, 5-6, 13; Dkt. No. 105 at 8; see also Dkt. No. 106-5.) Turner acknowledges that it is all one connected yard inside the fence. (See Dkt. No. 112 at 5; Dkt. No. 115 at 8.)

         The side-yard fence gate, located only 22 inches from Rowley's home, was ajar that morning. (Dkt. No. 112 at 2, 7.) Turner also claims that because the gate had been left open, any passerby could “view the junk and debris stored in the side-yard area from the street and front sidewalk” through the gate opening. (Dkt. No. 105 at 19.) Plaintiff disputes that assertion, claiming that “nothing” could be seen from the sidewalk or the street. (Dkt. No. 112-2 ¶36.)

         Turner walked across the front lawn to approach the gate to investigate further, entering Rowley's unenclosed “front of the east side-yard area of the house.” (Dkt. No. 112 at 22; Dkt. No. 105 at 12; Dkt. No. 115 at 7.) During the full inspection of Rowley's property, Turner took 11 photographs of the alleged violations. (Dkt. No. 112 at 15.) No. sidewalk or path led up to the gate entrance to the enclosed side-yard area at that time. (Id. at 2, 14-15.) Turner claims that he used a wide-angle lens camera to take pictures of inoperable unregistered vehicles, junk, trash, debris, and rubbish in the side-yard, a fence “unable to stand upright as designed without propping or additional support, ” with rotting fence posts on the inside of the fence, as well as other purported code violations. (Dkt. No. 105 at 6-7.) Defendants concede for purposes of this Motion that Turner opened the gate farther than it had been left open previously in order to take the pictures. (Dkt. No. 115 at 17.)

         Plaintiff claims that “there is no way” Turner could have taken those photographs unless the camera was placed beyond the inside edge of the fence, and thus that Turner “definitely shot the photograph of the inside of the fence from inside of the enclosed backyard.” (Dkt. No. 112 at 18.) Turner concedes that he “was able to walk up to the fence and be a few inches taller than the fence” and that he stood on Rowley's property to take the photographs of his side-yard “through his open gate.” (Dkt. No. 105 at 12; see also Dkt No. 115 at 11.) Defendants claim that there “could be a dispute of fact, ” however, as to whether Turner ever actually physically entered the enclosed side-yard, since Turner testified that he “was never required to enter the side-yard to take the pictures.” (Dkt. No. 105 at 11-12.)

         Besides taking the enclosed side-yard photos, Turner also entered the top of the unenclosed 22.5-foot-long driveway. (Dkt. No. 112 at 14-15.) While there, Turner took a picture of the rear license plate on Rowley's truck indicating an expired registration. (Dkt. No. 105 at 5.) The license plate was on the back side of the truck facing toward the garage, with the rear of the truck about four feet from the house. (Dkt. No. 112 at 14.) According to Plaintiff, Turner “admitted that he had to pass through [Plaintiff's] stuff” to take a picture behind the truck, and would have been “standing amid Rowley's tools and the supplies that Rowley was storing” adjacent to Rowley's parked truck to take the photographs. (Id. at 25; Dkt. No. 105 at 15.) These items were “within a couple feet of Rowley's home, ” and included a used washing machine, his son's bicycle which was being repaired, electrical cords, weightlifting weights, and tools for his work as a tile setter and a woodworking project. (Dkt. No. 112 at 2, 14-15.) Although the truck and driveway were visible from the public street, Plaintiff alleges that the expired license plate was not visible to the public at the time of the alleged search. (See Dkt. No. 112 at 31.)

         Later that day, Turner sent an Administrative Code Enforcement notice to the owners of the house; Rowley consequently faced threatened eviction if he did not remove or repair the offending violations. (Dkt. No. 4 at 4, 16, 20.) In response to this notice, around June 17, 2013 Rowley repaired his fence over a period of one to two days. (Dkt. No. 105 at 11; Dkt. No. 112 at 13.) His repairs left his side-yard completely unscreened and open to public visibility during those two days. (Dkt. No. 105 at 20.)

         On the day of Turner's alleged search, Rowley lived in his rented home with his eight-year old son and nine-year old daughter. (Dkt. No. 112 at 13.) Rowley testifies that at that time, his children played in the backyard “on almost a daily basis, ” with a trampoline they used several times per week, bikes which his children would ride almost daily, his son's toy truck and red wagon, and a hot tub which he and his children would regularly bathe in. (Id. at 13-14.) He also asserts that he would have family gatherings and barbeques there, and kept the family dog there along with Rowley's valuable possessions like his boat, tools, and motorcycles. (Id.) Accordingly, he claims that the only people who accessed the side-yard gate to the backyard were Rowley and his children. (Id. at 15.)

         Plaintiff further alleges that the top five feet of his driveway served as the house porch (as an extension of his garage) because there was no porch area near the front door. (Id. at 14.) He would typically park his truck on the lower portion of the driveway below the porch area so his kids could play basketball and “catch” on both the porch area and the front lawn on either side of the driveway. (Id.) On nice days, he would pull his exercise and wood working equipment out from the garage to use them in that “porch” area. (Id.)


         The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The U.S. Supreme Court has instructed that, at a minimum, courts applying Fourth Amendment jurisprudential protections “must assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” United States v. Jones, 565 U.S. 400, 406 (2012). Therefore, “[i]n determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve.” Virginia v. Moore, 553 U.S. 164, 168 (2008).

         The Government's physical intrusion on constitutionally protected private property for the purpose of obtaining information undoubtedly “would have been considered a ‘search' within the meaning of the Fourth Amendment when it was adopted.” United States v. Jones, 565 U.S. 400, 404-05 (2012). The seminal common-law case for ascertaining the original public understanding of the Fourth Amendment's meaning is Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765), which the Supreme Court has described as a “a monument of English freedom undoubtedly familiar to every American statesman at the time the Constitution was adopted, and considered to be the true and ultimate expression of constitutional law with regard to search and seizure.” Jones, 565 U.S. at 405. In Entick, the court explained that property rights were intimately connected with its search-and-seizure analysis, stating in part:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law.” Entick, 95 Eng. Rep. at 817.

See also Jones, 565 U.S. at 405. Relying heavily on this established tradition and supporting caselaw, the Supreme Court in Jones concluded that “[t]he text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to ‘the right of the people to be secure against unreasonable searches and seizures'; the phrase ‘in their persons, houses, papers, and effects' would have been superfluous.” Id. Accordingly, for much of the Supreme Court's history, its Fourth Amendment jurisprudence was based on the common-law trespass doctrine. See Kyllo v. United States, 533 U.S. 27, 31 (2001).

         “[W]hen it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). Indeed, an individual's right “to retreat into his own home and there be free from unreasonable government intrusion” has always been at the “very core” of the Fourth Amendment. See Silverman v. United States, 365 U.S. 505, 511 (1961). Also clearly established at the time of the founding were the common law protections of what Blackstone identified as the “curtilage or homestall, ” where the “house protects and privileges all its branches and appurtenants.” 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769) (emphasis added). More specifically, curtilage has been defined as the area “immediately surrounding and associated with the home, ” and has historically been treated as part of the home itself under the Fourth Amendment. Oliver v. United States, 466 U.S. ...

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