Riverdale Mills Corp. v. Pimpare

United States Court of Appeals
For the First Circuit

No. 04-1626

RIVERDALE MILLS CORP. and JAMES M. KNOTT, SR.,

Plaintiffs, Appellees,

v.

JUSTIN PIMPARE and DANIEL GRANZ,

Defendants, Appellants,

UNITED STATES; THREE UNKNOWN NAMED AGENTS OF THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY; and STEPHEN CREAVIN,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Lynch, Circuit Judge
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Jeffrey S. Bucholtz, Deputy Assistant Attorney General, with
whom Peter D. Keisler, Assistant Attorney General, Michael J.
Sullivan, United States Attorney, Barbara L. Herwig, Attorney,
Appellate Staff, Civil Division, Department of Justice, and Richard
A. Olderman, Attorney, Appellate Staff, Civil Division, Department
of Justice, were on brief, for appellants.
Paul D. Kamenar, with whom Warren G. Miller, Henry T. Dunker,
Daniel J. Popeo, and the Washington Legal Foundation were on brief,
for appellees.

December 22, 2004
 LYNCH, Circuit Judge. This case involves another episode

in the ongoing saga of disputes between the owner of a mill and the

United States Environmental Protection Agency (EPA). An earlier

episode is recounted in United States v. Knott, 256 F.3d 20 (1st

Cir. 2001). This episode involves issues of qualified immunity for

EPA inspectors who took wastewater samples.

James M. Knott, Sr., and Riverdale Mills Corporation

("Riverdale") sued two EPA inspectors, Justin Pimpare and Daniel

Granz, alleging violations of the plaintiffs' Fourth Amendment

right to be free from unreasonable searches.1 The plaintiffs

allege that the agents' sampling, without warrant or consent, of

wastewater from underneath a manhole located on Riverdale land in

Northbridge, Massachusetts, on the afternoon of October 21, 1997,

constituted a violation of the Fourth Amendment. The Fourth

Amendment claim is pursuant to Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

Pimpare and Granz defended, inter alia, on grounds of

qualified immunity; the district court denied their motion for

summary judgment on grounds of qualified immunity, and they

properly filed an interlocutory appeal. We reverse because, under

the first prong of the qualified immunity test, Knott and Riverdale

1
Riverdale also sued a third EPA agent, Stephen Creavin: the
district court granted Creavin qualified immunity. Riverdale Mills
Corp. v. United States, 337 F. Supp. 2d 247, 255-57 (D. Mass.
2004). The plaintiffs do not appeal this determination.

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have no reasonable expectation of privacy in this wastewater under

the circumstances shown in the record and therefore they have no

Fourth Amendment right. Even were this ruling incorrect, we would

reverse under the second prong, since the existence of such a

reasonable expectation was not clearly established law. We remand

for entry of judgment for Pimpare and Granz on qualified immunity

grounds.

I.

Riverdale manufactures plastic-coated steel wire

products. Knott is the company's president, treasurer, chief

executive officer, chairman of the board, and controlling

shareholder. During manufacture of the product, a water-based

cleaning process is used, and this cleaning process generates both

acidic and alkaline wastewater. Riverdale has a state permit

allowing it to put this wastewater into the public sewer system so

long as proper treatment (neutralizing the acidic or alkaline

qualities of the water, among other things) has been applied before

the wastewater reaches the public sewer.

In order to meet state and federal clean-water

requirements, Riverdale has a pretreatment system within its plant

which is supposed to treat and neutralize the acid or base

qualities of the wastewater before it reaches the public sewer.

After going through the pretreatment system, the wastewater flows

through a meter loop where the quantity of wastewater is measured

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to determine the sewer charges that Riverdale must pay to the town

of Northbridge. The wastewater then flows through a "test pit"

outside of Riverdale's plant ("Manhole 1") toward the public

sewer.2

Manhole 1 is roughly two feet deep and is covered by an

unmarked 171-pound steel manhole cover. It is located on a paved

street, Riverdale Street, that runs alongside the mill building.

Pimpare noted in his affidavit that it "appears to be a public

street." Riverdale alleges that it privately owns this street,

which runs from a public road (Route 122) across Riverdale's

property along the northern side of the mill. The road dead ends,

however, at a set of concrete barriers before a bridge on

Riverdale's property. On the Route 122 entrance to Riverdale

Street, a sign reads "Bridge Closed -- Local Traffic Only." The

road is actually on top of an earthen dam built by earlier owners

of the plant and used to create a millpond opposite the Riverdale

mill. Riverdale has alleged in its complaint that Riverdale owns

Manhole 1; there is, as we found in a previous opinion,

considerable reasonable dispute about whether this is so. See

Knott, 256 F.3d at 32. However, since the case is before us at the

2
Manhole 1 is referred to as a "test pit" by both sides. There
is evidence that Knott allowed regulators to test there in the
past. A September 8, 1987 letter from Knott to the Chairman of the
Town of Northbridge Board of Sewer Commissioners refers to a "pit"
that is apparently Manhole 1 and states that "[t]his pit should be
all that is needed to do whatever the Sewer Department might ever
need to do with respect" to Riverdale's wastewater discharge.

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summary judgment stage, we must construe all disputed facts in the

record in favor of the non-movants, and thus, we treat the road as

privately owned by Riverdale.

The plant's wastewater flows past Manhole 1 through 300

more feet of pipe allegedly owned by Riverdale to Manhole 2, which

is further down Riverdale Street. At Manhole 2, the Riverdale pipe

carrying wastewater from Manhole 1 enters Manhole 2 as a separate

flow and merges with other flows within Manhole 2 (it is possible

to sample Riverdale's wastewater separately at Manhole 2 before it

merges with the other flows). Manhole 2 is indisputably publicly

owned and is part of the public sewer system. From there, the

wastewater eventually flows to the Town of Northbridge treatment

plant before being released into the Blackstone River.

On July 28, 1997, an anonymous tipster purporting to be

a Riverdale employee sent a letter to the EPA alleging that the

plant's pretreatment system was not being run properly and thus

that the plant might be discharging wastewater with improper pH

levels and other problems.

The EPA decided to look into it. On the morning of

October, 21, 1997, the Agency sent Pimpare and Granz to the mill to

perform an inspection. The two inspectors did not obtain a search

warrant, and there is no claim of exigent circumstances. Inspector

Pimpare first met with Knott and two high-level employees;

Inspector Granz arrived sometime during that opening meeting. At

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that meeting, Pimpare did not assert any statutory authority to

search Riverdale property but instead asked Knott to give his

consent to an inspection of the wastewater treatment facility,

including tests of the wastewater.

Both the complaint and Knott's affidavit state that Knott

"explicitly" told both Pimpare and Granz that they could sample

Riverdale's wastewater and tour its plant only on the "express

condition" that they be accompanied at all times by Knott or

Riverdale employees designated by Knott. We accept the district

court's conclusion that Knott's consent was given only on condition

that the agents be so accompanied at all times.3 See Knott, 256

F.3d at 23. At some point during the day, Knott also told the

inspectors that he owned the sewer lines under Manhole 1 and that

the public sewer did not begin until Manhole 2. Knott told the

inspectors this at a closing conference after all the sampling from

Manhole 1 had already been completed. Id. at 24. Knott alleges

that he also told the agents this fact at the opening meeting,

before any sampling was done.

That morning, right after the meeting, Pimpare and Granz

were taken by Knott and the two Riverdale employees directly to

Manhole 1, where the inspectors took samples from approximately

3
The agents' brief concedes that Knott imposed this condition.
Pimpare stated in an affidavit, however, that he understood Knott
merely to be indicating that Knott and the Riverdale employees
would "walk [Pimpare and Granz] around the premises," not that they
needed to be present for any inspecting to occur.

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10:40 am to 11:15 am. One sample was provided to a Riverdale

employee. This first sampling, then, was indisputably in

conformity with Fourth Amendment requirements, if any are

applicable, because it fell within the scope of consent.

The inspectors had earlier planned on setting up a 24-

hour composite sample, but this was not done. The reason why this

was not done is in some dispute. Pimpare's affidavit states that

it was infeasible because of the intermittent nature of the

wastewater discharges. He states that he told Knott this and "made

it clear to Knott that Granz and [Pimpare] would be taking

additional samples from the manhole throughout the day." He says

that Knott responded, "Okay." Knott gives a different account.

His affidavit states that Pimpare told him 24-hour composite

sampling would be a bad idea because it would be unsafe to leave

the equipment in the street. Knott says he offered the agents some

accommodations to fix this problem, which were declined. Knott

states that he was never told that the inspectors were going to

conduct periodic sampling throughout the day.

After conducting this initial round of sampling at

Manhole 1, Pimpare states that he and Granz were taken on a tour of

the mill by Knott and the two employees. Pimpare states that at

the conclusion of this tour, he again told Knott and the two

employees that he would need to conduct more testing at Manhole 1;

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he asserts that Knott did not object. Knott disputes that Pimpare

told him the agents would need to conduct more tests at Manhole 1.

In any event, Pimpare and Granz took samples from Manhole

1 during two additional intervals that afternoon: between 12:40 pm

and 1:15 pm, and between 3:00 pm and 3:04 pm. These sampling

events are the crucial ones for purposes of this appeal. Knott

states that Pimpare and Granz took these samples without him or any

of his representatives present, and thus that this afternoon

sampling exceeded the scope of his consent. The inspectors concede

that no Riverdale representatives were present for this sampling.

The sampling occurred, however, on the street in front of the plant

and in full view of Riverdale employees. Id. at 23. A sample from

the 12:40 pm to 1:15 pm testing was given to one of the Riverdale

employees, who signed a chain of custody form. Id. at 24. Before

leaving the area that day, the inspectors also took samples from

Manhole 2.

The data resulting from the October 21 sampling led the

EPA to obtain an administrative search warrant and to search the

facility pursuant to this warrant on November 7, 1997. A second,

criminal search warrant was executed on July 19, 1998. These later

searches are not at issue in this appeal; only the October 21, 1997

afternoon sampling is relevant.

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 II.

Riverdale and Knott were indicted by a grand jury on

August 12, 1998, based on evidence found in these searches, for two

counts of violating the Clean Water Act, 33 U.S.C. § 1251 et seq.,

by discharging industrial waste into publicly owned treatment works

in violation of a national pretreatment standard for pH levels.

See 33 U.S.C. §§ 1317(b)(1), 1319(c)(2)(A); 40 C.F.R. §

403.5(b)(2). Knott and Riverdale moved to suppress evidence

obtained during the October 21, 1997 and November 7, 1997 searches.

The district court granted the motion in part: it determined that

the afternoon sampling on October 21 had exceeded the scope of

Knott's consent because neither Knott nor a designated Riverdale

employee had been present. It thus suppressed the fruits of those

afternoon searches but declined to suppress any evidence obtained

on November 7. Knott, 256 F.3d at 25. The government sought leave

of court to dismiss the indictment without prejudice on April 23,

1999, and such leave was granted on May 6, 1999. Id.

The district court then granted a motion by Riverdale to

recover reasonable attorneys' fees under the Hyde Amendment on the

grounds that the prosecution against it had been vexatious. United

States v. Knott, 106 F. Supp. 174, 179-80 (D. Mass. 2000). This

court reversed. Knott, 256 F.3d at 36. In the course of

conducting our inquiry, we noted that although the district court's

order suppressing the results of the October 21 search was not

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before us, the "issue was close" because of the "factual disputes"

surrounding the events of October 21 and the "at the very least .

. . ambiguous" nature of the conditions imposed on Knott's consent

to the sampling. Id. at 31, 35-36. We also noted that even if the

inspectors exceeded the scope of their permission, this "could just

as well have rested on an honest mistake of fact or misapprehension

of the authority they had been granted," an interpretation

supported by the fact that the inspectors provided a Riverdale

employee with a sample of the afternoon's testing. Id. at 31.

Knott and Riverdale then brought this civil action in

federal district court for damages, based on alleged constitutional

violations, against the United States, Pimpare, Granz, and another

EPA agent, Stephen Creavin. On March 16, 2004, the district court

denied Pimpare's and Granz's motions for summary judgment on the

grounds of qualified immunity. Riverdale Mills Corp. v. United

States, 337 F. Supp. 2d 247, 254-55 (D. Mass. 2004). The court

correctly articulated the three-part test for qualified immunity

(which we discuss later), looking first at whether the facts viewed

most favorably to the plaintiff allege the violation of a

constitutional right; second whether the constitutional right

allegedly violated was clearly established; and third whether the

defendants nonetheless deserve qualified immunity because their

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actions were objectively reasonable. See Abreu-Guzman v. Ford, 241

F.3d 69, 73 (1st Cir. 2001).4

On the first prong of the test, the district court held

that Riverdale's allegation that Pimpare and Granz exceeded the

scope of Knott's consent to the October 21 search of wastewater in

Manhole 1, if true, constituted a violation of Riverdale's Fourth

Amendment rights. Riverdale Mills Corp., 337 F. Supp. 2d at 255.

The court found defendants' attempted analogy between wastewater

and trash left on the curbside for public-waste disposal (which

receives no Fourth Amendment protection because there is no

reasonable expectation of privacy) to be unpersuasive. Id. On the

second prong, whether the law constituting the constitutional

violation was clearly established, the court simply noted that

"there can be no doubt that the law regarding the necessity for a

search warrant is clear." Id. Finally, on the third prong, the

court held that a reasonable officer would have understood that he

was exceeding the scope of Knott's consent. Id. The court also

4
In the same opinion, the district court granted Creavin, who
did not conduct sampling on October 21, qualified immunity on the
grounds that he did not violate Riverdale or Knott's Fourth or
Fifth Amendment rights. Riverdale Mills Corp., 337 F. Supp. 2d at
255-57. Knott and Riverdale have not appealed this determination.
The court also allowed a Federal Tort Claims Act claim against the
United States, on the basis of malicious prosecution, to survive
summary judgment. Id. at 252-54. This claim is also not before
us. On November 1, 2004, after a bench trial, the district court
issued an opinion and filed judgment for the United States on the
malicious prosecution claim. Riverdale Mills Corp. v. United
States, Civ. A. No. 00-40137-NMG, 2004 WL 2711300 (D. Mass.
November 1, 2004).

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noted that a reasonable officer would have known that in the

absence of consent, a warrant was necessary to sample the

wastewater at Manhole 1. The court stated this was shown by the

fact that the agents sought consent in the first place on October

21 and that they obtained a warrant before searching again on

November 7. Id. Granz and Pimpare filed a timely interlocutory

appeal of this denial of qualified immunity.

III.

We have jurisdiction over an interlocutory appeal from a

denial of qualified immunity, where, as here, the denial rests on

purely legal questions and not on disputed issues of fact. Dwan v.

City of Boston, 329 F.3d 275, 278 (1st Cir. 2003). Review is de

novo. Id.

Qualified immunity provides "an entitlement not to stand

trial or face the other burdens of litigation." Saucier v. Katz,

533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.

511, 526 (1985)). Qualified immunity is designed to protect most

public officials: "it provides ample protection to all but the

plainly incompetent or those who knowingly violate the law."

Malley v. Briggs, 475 U.S. 335, 341 (1986).

As most recently explained by Justice Breyer in his

concurring opinion in Brosseau v. Haugen, the test laid out in

Saucier has two basic parts: "Saucier requires lower courts to

decide (1) the constitutional question prior to deciding (2) the

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qualified immunity question." No. 03-1261, 2004 WL 2847251, at *5

(Dec. 13, 2004) (Breyer, J., concurring). This Circuit has usually

explained qualified immunity as a three-stage test by subdividing

Saucier's second stage into two distinct questions.5 See Abreu-

Guzman, 241 F.3d at 73. The three-part test asks first: "Taken in

the light most favorable to the party asserting the injury, do the

facts alleged show the officer's conduct violated a constitutional

right?" Saucier, 533 U.S. at 201. As to the second prong, we have

asked "whether the right was clearly established at the time of the

alleged violation" such that a reasonable officer would "be on

notice that [his] conduct [was] unlawful." Suboh v. Dist.

Attorney's Office, 298 F.3d 81, 90 (1st Cir. 2002).

On the third prong, we ask whether a "reasonable officer,

similarly situated, would understand that the challenged conduct

violated" the clearly established right at issue. Id. It is not

always evident at the time an official takes an action that a

clearly established right is involved. For example, the factual

situation might be ambiguous or the application of the legal

standard to the precise facts at issue might be difficult; in

either case the officer's actions may be objectively reasonable and

she may be entitled to qualified immunity. See Saucier, 533 U.S.

at 205; Suboh, 298 F.3d at 95-97. In this last stage we consider

5
However, the second and third prongs have occasionally been
combined into one step in this circuit. See Tremblay v. McClellan,
350 F.3d 195, 199-200 (1st Cir. 2003).

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any material facts as long as they are undisputed. See Suboh, 298

F.3d at 90.

The First Prong

The Supreme Court has stated that courts should begin

with the first prong, that is, whether the facts as seen in the

light most favorable to the injured party show that the officers'

conduct violated a constitutional right. See Saucier, 533 U.S. at

201; see also Bellville v. Town of Northboro, 375 F.3d 25, 30 (1st

Cir. 2004). This first step is meant to aid in the "law's

elaboration from case to case." Saucier, 533 U.S. at 201.

The issue of how specific the first prong is meant to be

is an issue that has troubled courts for some time. See Tremblay

v. McClellan, 350 F.3d 195, 199-200 (1st Cir. 2003); DiMeglio v.

Haines, 45 F.3d 790, 795-97 (4th Cir. 1995) (explaining different

types of inquiries that courts have performed at the first prong,

although ultimately concluding -- pre-Saucier -- that this prong

need not be decided first).

The level of specificity depends on the stage of the

proceedings at which a qualified immunity defense is brought. A

qualified immunity defense can, of course, be brought as a Fed. R.

Civ. P. 12(b)(6) motion for failure to state a claim upon which

relief can be granted. In such a case the entire qualified

immunity analysis, including the first prong, must be based only on

the facts stated in the complaint itself. See, e.g., Butler v. San

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Diego Dist. Attorney's Office, 370 F.3d 956, 963-64 (9th Cir.

2004). At the 12(b)(6) stage, the question on the first prong is

whether, using all of the well-pleaded facts stated in the

complaint and viewing them in the light most favorable to the

plaintiff, the plaintiff has stated a claim for a violation of some

constitutional right. The first prong inquiry at this 12(b)(6)

stage is unlikely to be very specific, given that federal civil

practice is based on notice pleading, where great specificity is

not required, Alternative Sys. Concepts, Inc. v. Synopsys, Inc.,

374 F.3d 23, 29 (1st Cir. 2004), and that there is no heightened

pleading requirement for civil rights cases, Leatherman v. Tarrant

County Narcotics Intelligence & Coordination Unit, 507 U.S. 163,

168 (1993); Educadores Puertorriqueños en Acción v. Hernández, 367

F.3d 61, 67-68 (1st Cir. 2004).

Where, as here, qualified immunity is brought at the

summary judgment stage, the inquiry on the first prong is somewhat

different. The language in Saucier is ambiguous on this point; the

case refers both to "the facts alleged" and to the "parties'

submissions." 533 U.S. at 201. But subsequent Supreme Court cases

have clarified, implicitly if not explicitly, that courts assessing

the first prong at summary judgment should look beyond the

complaint to the broader summary judgment record. See Groh v.

Ramirez, 124 S. Ct. 1284, 1293 (2004) (noting on the first prong

defendants' version of a statement made to the plaintiffs, but

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pointing out that one plaintiff had filed an affidavit contesting

this account, and concluding that the summary judgment "posture of

the case . . . obliges us to credit [plaintiff's] account"); Hope

v. Pelzer, 536 U.S. 730, 734 n.1 (2002) (laying out the normal

summary judgment test before assessing even the first prong of the

qualified immunity test). The first prong inquiry will usually

gain specificity at this summary judgment stage because of the

ability to determine then whether plaintiff's claim survives in

light of all the uncontested facts and any contested facts looked

at in the plaintiff's favor, rather than just the allegations that

appear on the face of the complaint.

We emphasize that the rule stating that the first prong

must be performed before the rest of the qualified immunity

analysis is not completely inflexible. The purpose of starting

with the first prong is to aid in law elaboration. Saucier itself

suggests that this law elaboration function will be well served

only in "appropriate cases," 533 U.S. at 207, and we have

previously noted that in some cases, such as where the claim

depends on a "kaleidoscope of facts not yet fully developed," the

law elaboration function is not well served and thus the Saucier

rule may not strictly apply. Dirrane v. Brookline Police Dep't,

315 F.3d 65, 69-70 (1st Cir. 2002).6 Moreover, the level of

6
Indeed, three Supreme Court justices expressed concern in a
recent concurrence that a rigid application of the Saucier rule --
that the first prong must be decided before the rest of the

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specificity at which the first prong is analyzed may change

depending on a given inquiry's utility in further elaborating the

law.

Nonetheless, it is clear that when performing the first

prong of the analysis, it is generally inadequate to state a very

generalized proposition such as whether it is a constitutional

violation for enforcement officers to perform an unreasonable

search. See Int'l Action Ctr. v. United States, 365 F.3d 20, 25

(D.C. Cir. 2004) ("It does no good to allege [on the first prong]

that police officers violated the right to free speech, and then

[on the second prong to] conclude that the right to free speech has

been clearly established in this country since 1791."); see also

Butera v. Dist. of Columbia, 235 F.3d 637, 646-47 (D.C. Cir. 2001).

Such an inquiry does nothing to further elaborate the law.

In this case, Granz and Pimpare have raised the qualified

immunity defense on summary judgment and not as a 12(b)(6) motion.

We take it as undisputed at this stage that the agents lacked a

warrant and that they exceeded the scope of Knott's consent.7

qualified immunity inquiry -- was unwise because of its tendency to
lead to wasted judicial resources and to constitutional decisions
that were insulated from judicial review. These justices thus
asked that the rule be reconsidered. See Brosseau, 2004 WL
2847251, at *5 (Breyer, J., concurring). However, the Saucier rule
has not been overruled by the Supreme Court.
7
Pimpare and Granz do not argue that Riverdale is a
"pervasively regulated business" that can be searched for this
purpose without a warrant. See New York v. Burger, 482 U.S. 691,
699-703 (1987) (discussing the exception to the warrant requirement

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These issues, however, go only to the "reasonableness" of any

Fourth Amendment "search."

The threshold issue is whether there was a "search" at

all for Fourth Amendment purposes. Granz and Pimpare's actions

were only a "search" if Riverdale had a reasonable expectation of

privacy in the wastewater underneath Manhole 1. See Kyllo v.

United States, 533 U.S. 27, 31-33 (2001); see also Katz v. United

States, 389 U.S. 347, 351-52 (1961). Under the Katz doctrine,

courts are required to differentiate between the question of

whether a search is reasonable and the antecedent question of

whether there is a Fourth Amendment "search" at all. The

antecedent question turns on, first, whether there is a subjective

expectation of privacy, and, second, whether society is willing to

recognize that expectation as objectively reasonable. We will

assume Riverdale had a subjective expectation of privacy. That

still leaves the objective part of the test. We ask whether any

subjective expectation of privacy that Riverdale might have had was

one which society was willing to accept as objectively reasonable.

The key issue for the first prong, then, is whether

Riverdale, based on the undisputed material facts and any disputed

material facts looked at in its favor, had an objectively

for inspection of commercial premises in "closely regulated"
industries). We do not address this issue. Nonetheless, the
commercial context is relevant to the reasonableness of any
expectation of privacy.

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reasonable expectation of privacy in the wastewater underneath

Manhole 1. More specifically, our inquiry is whether a company has

a reasonable expectation of privacy in industrial wastewater that

is on a private street and underneath a 171-pound manhole cover but

300 feet away from and flowing irrevocably into the public sewer

system.

The EPA inspectors urge that we adopt a per se rule that

there is never a reasonable expectation of privacy in wastewater.

This we decline to do. Judgments about reasonable expectations of

privacy are very fact-specific, and there may be fact situations

where wastewater is entitled to constitutional protection. See Dow

Chem. Co. v. United States, 476 U.S. 227, 238 n.5 (1986)

(reasonable expectation of privacy issues, like most Fourth

Amendment issues, "must be decided on the facts of each case, not

by extravagant generalizations"); United States v. Burnette, 375

F.3d 10, 16 (1st Cir. 2004). Factual variations might matter here:

suppose, for example, the wastewater is from a sewage holding tank

attached to a mobile home used as a residence by a sole occupant,

and a sample is searched and seized for evidence of drug use.

Because, in some situations, people have a reasonable expectation

of privacy in their own bodily waste, see, e.g., Skinner v. Ry.

Labor Executives Ass'n, 489 U.S. 602, 617 (1989) (chemical analysis

of urine sample is a "search" for Fourth Amendment purposes; tested

subject has a reasonable expectation of privacy), the character of

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the matter seized (i.e., wastewater) may not prove to be

dispositive on the issue of reasonable expectation of privacy.

The trash cases that the agents cite also do not support

their per se rule. These cases do not establish that trash can

never be protected for Fourth Amendment purposes; rather they hold

only that trash left in bags on or near the curb for collection by

a third party is unprotected. See, e.g., California v. Greenwood,

486 U.S. 35, 40-42 (1988); United States v. Scott, 975 F.2d 927,

929 (1st Cir. 1992); United States v. Wilkinson, 926 F.2d 22, 27

(1st Cir. 1991).

Whether there is a reasonable expectation of privacy

depends on a variety of factors in addition to the character of the

substance as wastewater. The commercial context is relevant; this

may reduce Riverdale's expectation of privacy somewhat. See Dow

Chem. Co., 476 U.S. at 237-38; United States v. Beaudoin, 362 F.3d

60, 65 (1st Cir. 2004).

The fact that Manhole 1 is on private property is

relevant, but that fact alone does not resolve the issue one way or

the other. The contours of the Fourth Amendment are not

coterminous with property and trespass law. See Oliver v. United

States, 466 U.S. 170, 183-84 (1984) ("[I]n the case of open fields,

the general rights of property protected by the common law of

trespass have little or no relevance to the applicability of the

Fourth Amendment."); Katz, 389 U.S. at 351. This case does not

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involve stationary wastewater in holding lagoons entirely on

private property and shielded from public access, in which there

may be stronger expectations of privacy. While it is of some

support to Riverdale that this wastewater was found on private

property, that support is limited. It is also relevant that

Manhole 1 was located on a private road; this street is an area of

Riverdale property that is most akin to an open field rather than

to a more heavily protected type of area, like curtilage or the

interior of a home or business. See, e.g., Dow Chem. Co., 476 U.S.

at 235-37 (applying the open field and curtilage doctrines that had

developed in a residential context to an industrial setting).

Ultimately, we conclude that the controlling fact here is

that the wastewater at Manhole 1 is irretrievably flowing into the

public sewer, which is only 300 feet away. The wastewater will

inevitably reach Manhole 2, where the public sewer begins, after

only a short period of time, and once it reaches that point, any

member of the public can take a sample. Wastewater at Manhole 1

under these circumstances is similar to trash left out on the curb

for pick-up by the trash collector, which enjoys no reasonable

expectation of privacy, even if left in opaque bags. See

Greenwood, 486 U.S. at 40-41; Scott, 975 F.2d at 928-29; Wilkinson,

926 F.2d at 27. In the case of trash left on the curb, there is no

reasonable expectation of privacy both because a passerby can

rummage through the trash while on the curb and because the trash

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has been intentionally left outside for a third-party garbage

collector, who in the near future will take the trash and be free

to examine it. Greenwood, 486 U.S. at 40-41.

It is true that a passerby cannot as easily sample

wastewater while it is underneath Manhole 1 as he can pick through

garbage. However, because the wastewater will assuredly enter the

public sewer and will flow there so quickly, the trash analogy

controls even if it is not exact. Plaintiffs make an implicit

argument that they should be able to expect privacy up until the

point at which their wastewater can no longer be differentiated

from the other sewage flows. This argument misfires. Riverdale

had no cut-off valve at Manhole 1, and thus no way to stop the

irretrievable flow to the public sewer. On these facts, Riverdale

has abandoned any reasonable expectation of privacy in the

wastewater by allowing it to flow irretrievably into a place where

it will be "exposed . . . to the public." Id. at 40.

Riverdale relies heavily -- and incorrectly -- on the

Massachusetts Supreme Judicial Court decision in Commonwealth v.

Krisco Corp., 653 N.E.2d 579 (Mass. 1995). This case held that a

commercial proprietor had a reasonable expectation of privacy in a

dumpster located in an adjacent alley that was gated at either end

by the owner (thus completely out of sight of passersby) until the

trash collector actually arrived. See id. at 584. It is surely

relevant for Fourth Amendment purposes whether and to what extent

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someone seeks to "preserve" something as "private" by keeping it

away from public scrutiny. Katz, 389 U.S. at 351. But Manhole 1

does not play the same role as the gates in Krisco. The gates in

Krisco reasonably told the public to stay out of the area around

the dumpster and even left it ignorant as to what was in that area;

they represented affirmative steps to exclude the public from the

area.

By contrast, a manhole cover is normally intended less to

keep people out than to provide them access: the manhole cover,

even if heavy, is one of the few points from which an underground

sewer can be reached. Moreover, a manhole cover, unlike a gate or

fence, is not intended to leave passersby ignorant as to the

contents within. Fences might hide any number of highly private

objects; manholes, however, generally give access only to a few

sorts of things, most commonly a sewer (or underground wires or

pipes). Placing otherwise unprotected wastewater underneath a

manhole cover does not create a reasonable expectation of privacy

where one did not exist before. At any rate, the trash in Krisco,

which was being held stationary behind the gates for pickup, is

quite different than the wastewater here, which is not being held

within Manhole 1 but rather is flowing through it on its way to the

public sewer.

We hold that based on the summary judgment record and

using the normal summary judgment standard, Riverdale's Fourth

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Amendment rights were not violated and the agents are entitled to

qualified immunity on the first prong. We thus need not reach the

other two prongs of the qualified immunity analysis; we address the

second prong merely as an alternative ground for decision, should

we be wrong on the first prong.

The Second Prong

The second prong asks whether the constitutional right

that the officer allegedly violated was "clearly established" at

the time of the incident such that it would "be clear to a

reasonable officer that his conduct was unlawful in the situation

he confronted." Saucier, 533 U.S. at 202. The core concern is one

of notice to the officers on the particular facts that they faced.

See Suboh, 298 F.3d at 90. The Supreme Court has made it quite

clear that the second inquiry is a specific one; it is necessary to

look at the particular factual context. See Brosseau, 2004 WL

2847251, at *3; Hope, 536 U.S. at 739-41; Saucier, 533 U.S. at 201-

02, 207-09 (The question under the second prong on the facts of the

case was "whether [the] general prohibition against excessive force

was the source for clearly established law that was contravened in

the circumstances [the] officer faced."); Wilson v. Layne, 526 U.S.

603, 614-15 (1999) ("It could plausibly be asserted that any

violation of the Fourth Amendment is 'clearly established,' since

it is clearly established that the protections of the Fourth

Amendment apply to the actions of police . . . . However, [for the

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second prong] the right allegedly violated must be defined at the

appropriate level of specificity before a court can determine if it

was clearly established."); Anderson v. Creighton, 483 U.S. 635,

639-40 (1987).

This does not mean that the facts of prior cases must be

materially similar, but merely that the prior case law must give

the officer reasonable notice that the specific conduct she is

alleged to have committed in this litigation is unlawful. See

Hope, 536 U.S. at 739-46; see also Suboh, 298 F.3d at 94 (second

prong does not require that there have been another case "exactly

on all fours with the facts of this case").

The district court below erred by posing the second prong

as whether "the law regarding the necessity for a search warrant is

clear." Riverdale Mills Corp., 337 F. Supp. 2d at 255. This is

too abstract an inquiry, at either the first or the second prong.8

The proper question is whether an officer on October 21, 1997,

should have understood based on prior law that it was unlawful,

without a warrant or consent, to take industrial wastewater from

underneath a manhole cover on a privately-owned street, but headed

irretrievably to a public sewer 300 feet away.

8
Similarly, Riverdale argues that the right that needs to be
clearly established is the constitutional requirement of a search
warrant for a commercial establishment, as set forth in See v. City
of Seattle, 387 U.S. 541, 543 (1967). That is surely too broad an
articulation in light of the requirements of the second prong.

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 The law did not clearly establish any such Fourth

Amendment right. We have found no court decisions holding that

there is a reasonable expectation of privacy in industrial

wastewater on its way to a public sewer. The law goes the other

way.9 The most obvious analogy, as we have noted, is between solid

waste left out for the trash collector, for which there is usually

no reasonable expectation of privacy, and liquid waste flowing into

the public sewer system. See Greenwood, 486 U.S. at 40-42; Scott,

975 F.2d at 929; Wilkinson, 926 F.2d at 27; see also United States

v. Hall, 47 F.3d 1091, 1093, 1097 (11th Cir. 1995) (no reasonable

expectation of privacy for trash in commercial dumpster that was

located in employee parking lot reachable via private paved road).

Even if Riverdale had a reasonable expectation of privacy in its

wastewater at Manhole 1, prior law would not have put an officer on

notice that producers of industrial wastewater located underneath

a manhole on a private street but headed for a public sewer 300

feet away enjoyed a reasonable expectation of privacy in the

wastewater. The officers are entitled to immunity on the second

prong of the qualified immunity analysis as well.

9
One state court held that there was not a reasonable
expectation of privacy in wastewater that was probed from a manhole
within a company's plant, where that wastewater was flowing into
the public sewer system. People v. Elec. Plating Co., 683 N.E.2d
465, 469-70 (Ill. App. Ct. 1997).

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 IV.

The district court's denial of qualified immunity to

Pimpare and Granz is reversed, and the case is remanded for entry

of judgment in their favor. Costs are awarded to Pimpare and

Granz.

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