Bilida v. McCleod

United States Court of Appeals
For the First Circuit

No. 99-1263

CLAIRE BILIDA,

Plaintiff, Appellant,

v.

ANDREW McCLEOD, in his capacity as Director of the
Department of Environmental Management, OFFICER JEFFREY S.
BELMONTE, OFFICER SHEILA DiSARRO, DEPUTY CHIEF THOMAS GREENE,
and STATE OF RHODE ISLAND,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Boudin, Circuit Judge

John M. Verdecchia with whom Law Offices of John M.
Verdecchia and Linda MacDonald-Glenn were on brief for
appellant.
Brenda A. Doyle, Special Assistant Attorney General, with
whom Sheldon Whitehouse, Attorney General for the State of Rhode
Island, was on brief for appellees.
 May 5, 2000

BOUDIN, Circuit Judge. The sad history of this section

1983 case began in or around 1988 when Claire Bilida rescued an

orphaned raccoon thereafter named "Mia." Bilida and her family

raised the raccoon as a pet and kept her in a cage attached to

the back of the family's home in Warwick, Rhode Island. Mia

lived there for seven years until she was seized and destroyed

in August 1995 by the Rhode Island Department of Environmental

Management ("the Department") in the episode that provoked this

suit for violation of Bilida's constitutional rights.

On August 8, 1995, a Warwick police officer named

Kenneth Brierly entered Bilida's backyard in response to a

security alarm signal. While investigating the alarm, which

proved to be false, Brierly saw Mia in her cage. Uncertain

whether possession of the raccoon was legal, he called Nora

Legault, the city's animal control officer, and then left the

premises. A half hour or so later, Legault and Brierly returned

to find Bilida at home. Legault asked Bilida for her permit

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from the Department, which is required under Rhode Island law

for possession of raccoons and certain other animal species.1

Bilida told Legault that she had a permit but then was

unable to produce one. Legault and Brierly departed and

Legault returned to her office, called the Department, and

discovered that Bilida did not have a permit. The Department

then sent two of its officers (Jeffrey Belmonte and Sheila

DiSarro) to Bilida's home where the officers--who had no

warrant--entered Bilida's gated backyard and seized Mia after a

struggle with Bilida. DiSarro then issued Bilida a summons for

illegally possessing a raccoon but (according to Bilida) the

officers promised her that Mia would not be killed.

Having taken the racoon, the officers then consulted

with the deputy chief of the Department, Thomas Greene, and he

in turn contacted Susan Littlefield, the state's public health

veterinarian. Littlefield, after learning that Mia had been

hand fed by Bilida, told Greene that according to the state's

rabies protocol, Mia had to be euthanized and tested for rabies.

The protocol, which was adopted in response to a supposed

epidemic of raccoon rabies moving up the east coast in the early

1
A statutory provision enacted in 1971 prohibits possession
without a permit of certain wild animals, including the family
to which racoons belong. R.I. Gen. Laws § 4-18-3 (1998); see
also id. § 20-16-5 (1997). The current relevant regulations are
in R.I. Code R. 12 080 043.

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1990s, calls for animals in certain high risk "target species"

to be tested for rabies (which requires killing the animal)

under specified circumstances.2 With no further word to Bilida,

Mia was then shot, tested, and found to have no rabies

infection.

Bilida was prosecuted in state court for the

misdemeanor offense of possessing the raccoon without a permit.

R.I. Gen. Laws § 20-1-16 (1998). In the state proceeding,

Bilida obtained an evidentiary hearing on whether the final

warrantless entry onto her property and seizure of the raccoon

violated the Fourth Amendment made applicable to the states

through the Fourteenth Amendment. The state court judge found

that the officers had acted in good faith but also concluded

that they had violated the Fourth Amendment because no exigent

circumstances justified the warrantless entry and seizure of the

already caged animal. Following the suppression order, the

state abandoned the prosecution of Bilida.

2
R.I. Rabies Control Board, Rules & Regulations Governing
Rabies Control Within the State of Rhode Island §§ 2.00(b), 7.01
(rev. ed. Nov. 1994). Whether the nature of Bilida's exposure
to Mia required euthanizing the raccoon is not entirely clear
from the language of the protocol; it refers inter alia to cases
of possible exposure "via . . . saliva . . . and . . . [a] pre-
existing break in the skin . . . ." There is no indication
whether Bilida's feeding or handling of Mia resulted in such
exposure.

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 Bilida filed her own complaint in the federal district

court, naming as defendants the director of the Department,

deputy chief Greene, the two officers who had made the seizure

(Belmonte and DiSarro), veterinarian Littlefield (later

dismissed by consent), and the State of Rhode Island. She

asserted federal claims under 42 U.S.C. § 1983 for violations of

her constitutional rights of "privacy," due process, and

protection against unreasonable search and seizure.3 The

complaint sought a declaration that Bilida's rights had been

violated, punitive damages, and other unspecified relief.

In a thoughtful opinion, the district court granted the

defendants' motion for summary judgment, holding that no federal

right of privacy was violated; that the warrantless search and

seizure were justified by the "plain view" exception to the

warrant requirement; and that Bilida had no property interest in

Mia to trigger a right to due process pertaining to Mia's

treatment. Bilida v. McCleod, 41 F. Supp. 2d 142 (D.R.I. 1999).

The district court dismissed the state claims without prejudice.

28 U.S.C. § 1367(c)(3) (1994). On this appeal, Bilida's main

arguments are that preclusion doctrine required a finding that

3
Companion state claims were made for invasion of privacy,
intentional and negligent infliction of emotional distress,
conversion, assault and battery, malicious prosecution, and
false arrest.

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the search and seizure were illegal and that in any event the

district court erred in its legal rulings on the plain view and

property issues.

Rhode Island law determines whether the state ruling

in the criminal case is to be given preclusive effect in the

federal action. 28 U.S.C. § 1738 (1994); Allen v. McCurry, 449

U.S. 90 (1980). In general, Rhode Island law requires for

collateral estoppel ("issue preclusion" in modern terms) that

the issue earlier determined must have been identical to the

issue raised in the later action, actually litigated, and

necessarily decided; that the prior proceeding resulted in a

final judgment on the merits; and that the party against whom

issue preclusion is asserted or someone with whom he is in

privity was a party to the prior proceeding. State v. Jenkins,

673 A.2d 1094, 1096 (R.I. 1996); E.W. Audet & Sons, Inc. v.

Firemen's Fund Ins. Co., 635 A.2d 1181, 1186 (R.I. 1994); see

also Restatement (Second) of Judgments § 27 (1982).

We agree that the issue--the legality of the search and

seizure--is the same in both cases, and it is no bar to

preclusion that the rulings were made in different courts and

that the prior case was criminal while the latter was civil.

See Glantz v. United States, 837 F.2d 23, 25 (1st Cir. 1988).

Whether a final judgment exists might be debated since we are

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dealing with an intermediate ruling that led simply to an

abandonment of the prosecution, but Rhode Island may not be

rigid as to this requirement, see State v. Presler, 731 A.2d

699, 702-04 (R.I. 1999). However, none of the defendants other

than the State of Rhode Island was a party to the criminal

proceeding, and we doubt that a Rhode Island court would deem

those individual defendants in privity with the state insofar as

they are now being sued in their individual capacities.

Although no Rhode Island case in point has been cited

to us, most precedent indicates that individual state officials

are not bound, in their individual capacities, by determinations

adverse to the state in prior criminal cases. E.g., Kraushaar

v. Flanigan, 45 F.3d 1040, 1050 (7th Cir. 1995); see generally

18 Wright, Miller & Cooper, Federal Practice and Procedure §

4458, at 508 (1981). The reason is that the interests and

incentives of the individual police or officials are not

identical to those of the state, and the officers normally have

little control over the conduct of a criminal proceeding.4 Thus,

whether there was a violation remains an open issue.

4 As for the state, it cannot be held liable under section
1983. Will v. Michigan Dep't of State Police, 491 U.S. 58
(1989). Nor can officers be sued in their official capacities
for the relief sought here: damages and a declaration regarding
past violations of law. Will, 491 U.S. at 71; Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
146 (1993).

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 We turn therefore to the merits. The Fourth Amendment

protects against "unreasonable" searches and seizures and,

broadly speaking, an unconsented-to, warrantless entry into the

home by government agents is presumptively unreasonable--valid

only if an exception to the warrant requirement applies. McCabe

v. Lifeline Ambulance Serv., Inc., 77 F.3d 540, 544 (1st Cir.),

cert. denied, 519 U.S. 911 (1996); see generally 1 LaFave,

Search and Seizure § 2.3, at 465 (3d ed. 1996). Places adjacent

to the home, known as "curtilage," have generally been subject

to the warrant requirement so far as the government agent

intrudes beyond areas (e.g., the path to the front door) where

uninvited visitors are expected. See 1 LaFave, supra, § 2.3(f),

at 504-09; Daughenbaugh v. City of Tiffin, 150 F.3d 594, 603

(6th Cir. 1998).

In general, this warrant requirement applies to civil

as well as criminal searches, Soldal v. Cook County, 506 U.S.

56, 66-67 & n.11 (1992), and whether the entry is by the police

or some other government official, Michigan v. Tyler, 436 U.S.

499, 504-05 (1978). Civil "administrative" entries and

investigatory searches, especially into business premises, have

sometimes been upheld based on a regulatory scheme in lieu of a

judicial warrant. See, e.g., Griffin v. Wisconsin, 483 U.S.

868, 873 (1987); United States v. Biswell, 406 U.S. 311, 314-15

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(1972); McCabe, 77 F.3d at 545; see also 4 LaFave, supra, §

10.1(c). But the defendants have not relied upon such an

administrative scheme in this case.5

The defendants argue in this case that the presumptive

warrant requirement was overcome by linking together several

settled exceptions. They claim, and the district court held,

that the original entry of Officer Brierly was justified as an

exigent circumstance, viz., the security alarm signal that he

was investigating; that Mia was then noticed by Brierly and

subject to a seizure without a warrant under the "plain view"

doctrine; and that the later entry into the backyard by Belmonte

and DiSarro and their seizure of the raccoon was an extension of

Brierly's earlier entry and sighting of the raccoon and did not

need to be independently supported by a warrant.

Warrantless entries are most often justified by

"exigent circumstances," the best examples being hot pursuit of

a felon, imminent destruction or removal of evidence, the

threatened escape by a suspect, or imminent threat to the life

or safety of the public, police officers, or a person in

5
There now appears to be a scheme under Rhode Island law for
warrantless searches of property where target species are kept
pursuant to a state-issued permit, see R.I. Code R. 12 080 043,
§ 2.2(f); 12 080 045, § 3.7 (1997), but even if there was a
comparable scheme in 1995, it may not have applied to Bilida
(ironically because she did not hold a permit).

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residence. See McCabe, 77 F.3d at 545. Brierly's entry into

the backyard in response to the silent security alarm is a

perfectly good example of a perceived imminent threat, and

Bilida herself does not claim that Brierly's initial entry was

unjustified.

Once Brierly was in the backyard, he was entitled under

the plain view doctrine to seize "contraband . . . left in open

view and . . . observed . . . from a lawful vantage point . . .

." Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (citations

omitted). The rationale is that assuming an initial lawful

entry, the view "from a lawful vantage point" involves no

further intrusion on privacy and the "warrantless seizure of

[the] contraband" is justified because seeking a warrant "would

often be impracticable" and, in any event, "would do little to

promote the objectives of the Fourth Amendment." Id. If

Belmonte and DiSarro were lawfully in Bilida's backyard,

arguably the plain view doctrine would have permitted Mia's

seizure, at least once lack of a permit was established.

However, the Supreme Court has said that where a search

is lawful only because of exigent circumstances, the search must

be "strictly circumscribed by the exigencies which justified its

initiation." Terry v. Ohio, 392 U.S. 1, 25-26 (1968); see also

Mincey v. Arizona, 437 U.S. 385, 393 (1978). The original

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concern about the silent alarm had entirely dissipated when

Belmonte and DiSarro returned to the property, well after

Brierly's second departure, to seize the racoon. It is hard to

see why a new entry, after the legally entering officer has left

the premises and for a quite different purpose, should avoid the

warrant requirement, absent some new exigent circumstance or

other excuse for failing to get a warrant.6

We cannot be certain how the Supreme Court would view

this matter since Michigan v. Tyler, 436 U.S. 499 (1978), sends

conflicting signals. There, firefighters entered a burning

building, extinguished a fire and seized some evidence in plain

view. But darkness, heat and steam prevented a complete

investigation into the cause of the fire, and the fire

investigators returned a few hours later and seized additional

items in plain view. The Supreme Court upheld this second

entry, seemingly because of the continuing urgent need to

determine the cause of the fire so as to rule out the risk of

6Accord, e.g., DiCesare v. Stuart, 12 F.3d 973, 978 (10th
Cir. 1993); Middleton v. Indiana, 714 N.E.2d 1099, 1102 (Ind.
1999) ("Once police officers leave a home where they believe
they saw evidence in plain view, they are essentially in the
same position as any officer with reliable information . . . .
In the absence of exigent circumstances or one of the other
recognized exceptions, the proper measure . . . is to obtain a
warrant."); cf. Mann v. Cannon, 731 F.2d 54, 60 (1st Cir. 1984)
(approving reentry where initial danger remained largely
unabated).

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recurrence, and they treated the seizure of plain view evidence

as merely incidental. See id. at 510-11.

Given the proximity in time and purpose between the

initial search and valid reentry, Tyler has encouraged courts to

consider multiple factors in deciding whether there are two

separate searches or merely a continuing one justified by the

original exigency; and this inquiry may sometimes make sense.

Cf. Mann v. Cannon, 731 F.2d 54, 59-60 (1st Cir. 1984) (citing

Michigan v. Clifford, 464 U.S. 287 (1984)). But where the

justification for the original warrantless entry has completely

expired and the officials have left, we see no basis in Tyler or

in constitutional policy for any general rule that officials can

then reenter without a warrant simply to seize contraband or

evidence that was seen in plain view during the original entry.

The best that can be said for the broader reading of

Tyler is that when privacy has already and only recently been

breached by the original entry, it is already "lost." Cf. Vance

v. United States, 676 F.2d 183, 188 n.8 (5th Cir. 1982). But

for most people, especially in the case of a private residence,

a second entry is independently disagreeable. Of course, the

first entry and the plain view sighting may provide the police

with ample basis for securing a warrant; but warrants from a

neutral magistrate are normally required, absent an exigency,

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even where the evidence supporting probable cause is

overwhelming. See Thompson v. Louisiana, 469 U.S. 17, 21-22

(1984) (per curiam) (a two-hour search of home on same day after

a legal entry not justified by diminished expectation of

privacy); Mincey, 437 U.S. at 391.

In the district court, the defendants urged two other

supposed exigencies to justify their warrantless entry and

seizure: a public health emergency posed by the caged raccoon

and an imminent realistic threat that the "evidence" would

otherwise be secreted or destroyed. The district judge thought

that neither of these grounds, although permissible in the

abstract, were made out by the circumstances of this case and

the defendants do not seriously urge them in this court. That

is enough for purposes of this appeal.

In this court, Bilida's other substantive federal claim

is that the seizure and destruction of Mia violated Bilida's due

process rights (the complaint's generalized "privacy" claim has

not been pursued on this appeal). Bilida's brief presents a

short argument as to why Bilida should be regarded as having a

sufficient property interest in the raccoon to entitle her to

due process and she suggests that at the very least she was

entitled to some kind of notice and a hearing before Mia was

destroyed.

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 While the state might have more to say in its favor in

a full-scale trial, it is not apparent why Mia should have been

destroyed without providing Bilida an opportunity to object and

obtain some kind of administrative review or judicial

intervention. Seemingly, no state law required Mia's immediate

destruction, and an administrative policy--even if one applied

here, see note 2, above--can always be waived or modified.

There is no indication of a genuine emergency, such as the

biting of a child by an apparently rabid dog. And Bilida says

she was told that Mia would not be killed.

Nevertheless, the due process clause protects

"property" interests; and while the notion of property interest

has been stretched quite far in certain contexts, e.g., Goldberg

v. Kelly, 397 U.S. 254 (1970), it depends importantly on what

interests are recognized under state law. See Board of Regents

v. Roth, 408 U.S. 564, 577 (1972); Marrero-Garcia v. Irizarry,

33 F.3d 117, 121 (1st Cir. 1994). Citing these cases, the

district court ruled that "even where additional process might

be laudable," the court could not "create constitutional

protection for objects that the state has declared illegal to

possess." 41 F. Supp. 2d at 151.

A number of cases hold, as the district court did here,

that a claimant has no property interest in "per se contraband,"

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i.e., something that it is illegal merely to possess. E.g.,

Boggs v. Rubin, 161 F.3d 37, 40 (D.C. Cir. 1998), cert. denied,

120 S. Ct. 45 (1999); Lyon v. Farrier, 730 F.2d 525, 527 (8th

Cir. 1984). Cf. One 1958 Plymouth Sedan v. Pennsylvania, 380

U.S. 693, 699 (1965). Because a raccoon taken from the wild

cannot lawfully be possessed in Rhode Island without a permit,

the district court deemed Mia to fall into the same category.

With little enthusiasm, we agree with the district court that

state law undermines Bilida's claim of the required property

interest.

Under Rhode Island law, "wild game within a state

belongs to the people in their collective sovereign capacity"

and is not subject to "private ownership except in so far as the

people may elect to make it so." State v. Kofines, 80 A. 432,

440 (R.I. 1911) (quoting Ex Parte Maier, 37 P. 402 (Cal. 1894)).

State law makes illegal possession of raccoons taken from the

wild without a permit issued by the Department. See note 1,

above. This amounts to saying that, under state law, Mia could

not be reduced to private ownership and lawfully possessed as

property without a permit. Needless to say, this would be a

different case if Bilida did have a permit, but she no longer

claims ever to have had one.

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 We have concluded so far that Bilida does not have a

valid claim based on procedural due process but might well have

a valid Fourth Amendment claim. However, defendants say that

even assuming a violation, the individual defendants are not

liable for damages under section 1983 because of qualified

immunity. (As already noted, the state is not liable for

damages in any event.) The district court did not reach this

issue because it rejected all of the constitutional claims on

the merits.

Government officials are "shielded from liability for

civil damages" under section 1983 unless their conduct violates

"clearly established statutory or constitutional rights of which

a reasonable person would have known." Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). The test is whether "under the

circumstances that confronted the official, 'a reasonable

official would understand that what he is doing violate[d] that

right.'" Berthiaume v. Caron, 142 F.3d 12, 15 (1st Cir. 1998)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The

question here thus is whether Belmonte and DiSarro should have

known that their warrantless entry and seizure violated the

Fourth Amendment.

Given the lack of clarity in prior precedent, we are

satisfied that a reasonable government agent could easily have

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believed that the final reentry and seizure of Mia was a

protected extension of the original, lawful entry by Officer

Brierly. The district court found that the final entry was

lawful and, given Tyler, we have reached the contrary result

only by a very close margin. Qualified immunity leaves "ample

room for mistaken judgments" and protects "all but the plainly

incompetent or those who knowingly violate the law." Malley v.

Briggs, 475 U.S. 335, 341, 343 (1986). This might appear to

dispose of the damage claims against the officers for the Fourth

Amendment violation, but there is an unusual caveat.

Although qualified immunity normally turns on objective

circumstances, not subjective intent, Harlow, 457 U.S. at 818-

819, this likely means objective circumstances actually known to

the officer, see Anderson, 483 U.S. at 641. If Belmonte and

DiSarro knew nothing about Brierly's lawful entry and plain view

perception, it might seem odd to grant them immunity based

solely on the opacity of the law governing warrantless reentry.

It is not clear that Belmonte and DiSarro knew the precise

nature and timing of the prior searches, although they did know

(according to testimony at the state suppression hearing) that

the Warwick police and animal control officer had been at the

scene.

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 However, Belmonte and DiSarro did know from the radio

dispatcher that a superior officer, one Captain Tyler, had

directed them to go to Bilida's address and seize the racoon.

Belmonte so testified explicitly in deposition testimony that

has not been challenged. Belmonte (and by attribution DiSarro)

also knew that "the decision had already been made" to seize the

racoon. Thus they were being directed not merely to

"investigate" the subject but to seize a racoon at a specific

address following an investigation by the police and animal

control officer. In our view, these circumstances establish

qualified immunity for these two officers, who were the only

present individual defendants implicated in the seizure (as

opposed to the destruction) of the animal.

Plausible instructions from a superior or fellow

officer support qualified immunity where, viewed objectively in

light of the surrounding circumstances, they could lead a

reasonable officer to conclude that the necessary legal

justification for his actions exists (e.g. a warrant, probable

cause, exigent circumstances). 7 Here, there were no warning

7 Cf. United States v. Hensley, 469 U.S. 221, 232 (1985)
(officers making stop in objective reliance on a bulletin issued
by another department may have qualified immunity in civil suit
even if there is not in fact reasonable suspicion). Compare
Varrone v. Bilotti, 123 F.3d 75, 81 (2d Cir. 1997) (officers
entitled to rely on superior's plausibly legal instructions),
with Diamondstone v. Macaluso, 148 F.3d 113, 126 (2d Cir. 1998)

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signs or bases for suspicion about the lawfulness of the order.

On the contrary, Belmonte and DiSarro knew that the police and

an animal control officer had recently been at the scene and

that a racoon--a target species for rabies--was there. Upon

receiving an explicit order to go to the home and seize the

animal, they had every reason to think that Captain Tyler had

secured a warrant or concluded (possibly based on exigent

circumstances unknown to Belmonte and DiSarro) that one was

unnecessary.

Qualified immunity shields the officers only from

damage suits, cf. Rodi v. Ventetuolo, 941 F.2d 22, 31 (1st Cir.

1991), and Bilida explicitly seeks declaratory relief. But

declaratory relief is discretionary, Ernst & Young v. Depositors

Economic Protection Corp., 45 F.3d 530, 534-35 (1st Cir. 1995),

and we are confident that the district court would rightly

refuse any declaratory relief over and above that which this

opinion affords. Our opinion establishes that, if the facts are

as Bilida claims, the Fourth Amendment did not permit a

warrantless entry and seizure of the racoon, at the time the

racoon was actually seized, on the theory that this was a mere

continuation of a prior lawful entry.

(officer could not rely on advice of superiors that was clearly
contrary to law).

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 It is not perfectly clear that the facts are exactly

as Bilida claims (in particular, the officers claimed at one

point below that Bilida consented to the entry although not the

seizure), but we cannot believe that a trial to resolve

remaining factual questions could be justified merely to afford

Bilida a declaratory judgment without any prospect of damage

relief on the federal claim. Thus, we can conceive of no

purpose for remanding this matter for further proceedings in

federal court, although Bilida is entirely free to pursue her

pendant state claims in state court. It need hardly be said

that this outcome is not an endorsement of the state's

procedures for treatment of pet racoons.

Affirmed.

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