NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0688n.06
Filed: September 24, 2007
No. 06-4470
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FRED JOHNSON, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
TRENT WEAVER; EARL WOGLEMUTH; ) SOUTHERN DISTRICT OF OHIO
OHIO DEPARTMENT OF NATURAL )
RESOURCES DIVISION OF WILDLIFE; )
SAMUEL W. SPECK; SCOTT ZODY; and )
JAMES R. TUNNELL, )
)
Defendants-Appellees. )
Before: MOORE and COOK, Circuit Judges; and ACKERMAN, District Judge.*
COOK, Circuit Judge. Fred Johnson filed this action under 42 U.S.C. § 1983 against Ohio
Department of Natural Resources (ODNR) officers, claiming violation of the Fourth Amendment
in searching his house, barns, and farm. The district court granted summary judgment in favor of
the ODNR officers, and we affirm.
*
The Honorable Harold A. Ackerman, Senior United States District Judge for the District of
New Jersey, sitting by designation.
No. 06-4470
Johnson v. Weaver
I
The disputed searches’ genesis was a deer check-in station’s call to ODNR officer Trent
Weaver, reporting the delivery of a gun-shot carcass during Ohio archery season. Suspecting an out-
of-season kill, Ohio Rev. Code §§ 1531.02, 1531.99, Weaver and fellow officer Erryl Wolgemuth
thought it a prudent first investigatory step to visit the hunter responsible—conspicuously identified
on the deer’s tag as Jeremy MacIntosh, living at 10240 Carlisle Pike in Germantown, Ohio.
Arriving at the property the next morning, they found their investigation immediately stalled
by the locked gate and “No Trespassing” signs a quarter mile up the driveway. As it turned out,
MacIntosh’s address was a tenant house on Johnson’s seventy-acre fenced-in farm. And soon after
the officers arrived, Johnson appeared, coming down the driveway on his way to work. He claimed
that MacIntosh was gone and refused Weaver and Wolgemuth’s entry onto the farm. Johnson
repeatedly denied entry and became increasingly belligerent, sparking an altercation that resulted in
Weaver and Wolgemuth arresting him.1
With Johnson in jail, Weaver and Wolgemuth returned to the farm, now accompanied by
ODNR Investigator James Tunnell, and walked to MacIntosh’s house, where they met and
questioned MacIntosh (Johnson having lied about his absence). MacIntosh, who identified his
relationship to Johnson as stepson, claimed that he shot the deer with a bow and arrow. Weaver,
1
The arrest gave rise to a separate lawsuit, dismissed for failure to prosecute.
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Johnson v. Weaver
spotting the lie, suggested that MacIntosh show them the scene of the kill. After the group briefly
entered Johnson’s barns, they walked the farm’s fields, where Weaver noticed a 12-gauge shotgun
slug casing twenty-five yards from a bloody spot on the grass. At this point, MacIntosh recanted
his earlier story, told the officers that Johnson, not he, shot the deer, and memorialized his statement
in writing:
On Saturday 07 October 2000 my step dad Fred Johnson killed a 16 point buck on
the farm in German Township Montgomery County. He told me that he killed it with
a shotgun. He didn’t want to take it and check it in. I wanted it so Fred and I took
it to the deer checking station. I gave false information to the person who computed
the deer harvest form. I told them that I killed it with a bow and arrow. Later my dad
and I took it to Payne’s Deer Processor. The head went to Millard’s Taxidermy in
Carlisle.
With this statement, Weaver and Wolgemuth sought and obtained a search warrant. And
although the warrant listed the tenant house’s address, 10240 Carlisle Pike, that evening Weaver,
Wolgemuth, and several other officers executed the warrant at Johnson’s house at 10232 Carlisle
Pike. There, they seized three shotguns and several shells; testing later matched one of the guns to
the earlier-found spent casing.
Johnson filed a complaint in district court under 42 U.S.C. § 1983 alleging multiple
violations of his Fourth Amendment rights. In September 2006, the district court granted the
defendants’ motion for summary judgment.
II
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Johnson v. Weaver
We review a district court’s order granting summary judgment de novo, Daughenbaugh v.
City of Tiffin, 150 F.3d 594, 597 (6th Cir. 1998), and will affirm if “there is no genuine issue as to
any material fact and . . . the moving party is entitled to a judgment as a matter of law,” Fed. R. Civ.
P. 56(c).
A
Johnson bases his first Fourth Amendment claim on the allegation that the officers trespassed
when they defied his order to stay out and nevertheless proceeded up the driveway. While it is
axiomatic that the Fourth Amendment protects the home and its curtilage, the “land immediately
surrounding and associated with the home,” United States v. Oliver, 466 U.S. 170, 180 (1984), it is
equally clear that this protection does not extend to the home’s neighboring open fields because
those areas “do not provide the setting for those intimate activities that the [Fourth] Amendment is
intended to shelter,” id. at 179; see also Hester v. United States, 265 U.S. 57, 59 (1924) (“[T]he
special protection accorded by the Fourth Amendment . . . is not extended to the open fields.”).
Because the driveway constitutes an “open field,” Johnson holds no reasonable privacy expectation
in it, and his efforts to shield that area from any manner of unwelcome guest prove inconsequential.
See United States v. Rapanos, 115 F.3d 367, 372–73 (6th Cir. 1997) (explaining that the “presence
of fences, closed or locked gates, and ‘No Trespassing’ signs on an otherwise open field . . . has no
constitutional import”). True, the officers trespassed, but the Oliver Court confirmed that this state-
law violation is of no constitutional moment:
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Johnson v. Weaver
The law of trespass . . . forbids intrusions upon land that the Fourth Amendment
would not proscribe. For trespass law extends to instances where the exercise of the
right to exclude vindicates no legitimate privacy interest. Thus, in 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.
466 U.S. at 183–84 (footnotes omitted). In light of these principles, the officers did not violate the
Fourth Amendment in traversing the driveway.
Johnson attempts to distinguish his case from the average open fields case, citing his prior
refusal to allow the ODNR officers entry. But a landowner who is present and attempting to bar
entry has at most “a subjective expectation of privacy,” and the Supreme Court rejects “the
suggestion that steps taken to protect privacy establish that expectations of privacy in an open field
are legitimate.” Rapanos, 115 F.3d at 373 (quoting Oliver, 466 U.S. at 182). This additional factor
therefore does not give rise to a Fourth Amendment violation. Id.
Nor did the officers violate Johnson’s Fourth Amendment rights when they knocked on the
tenant house door. MacIntosh lived there; Johnson’s ownership alone does not create a reasonable
expectation of privacy. See, e.g., Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978) (collecting cases);
Stoner v. California, 376 U.S. 483 (1964); Chapman v. United States, 365 U.S. 610 (1961).
B
Johnson counters that the officers exceeded the open fields rule when they searched his barns.
For summary judgment, we take as true that the officers searched the barns and that the barns
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Johnson v. Weaver
constitute curtilage. The district court nonetheless found that the officers were qualifiedly immune
for lack of a clearly established right, based on the Supreme Court’s decision in Georgia v.
Randolph, 547 U.S. 103 (2006), and we agree.
The preliminary question is whether MacIntosh had authority to consent to a search of
Johnson’s barns. An exception to the Fourth Amendment’s prohibition on warrantless searches
applies where officers obtain voluntary consent to search, either from the person whose property is
searched, Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (citing Schneckloth v. Bustamonte, 412
U.S. 218 (1973)), or “from a third party who possessed common authority over or other sufficient
relationship to the premises or effects sought to be inspected,” United States v. Matlock, 415 U.S.
164, 171 (1974). Common authority enables a third party to consent to a search if that third party
has “joint access or control for most purposes.” 415 U.S. at 171 n.7. Even if third-party consent
comes from a person without actual authority, the search is nonetheless valid if the police relied, in
good faith, on the third party’s apparent authority to consent to the search. Rodriguez, 497 U.S. at
188–89. An objective standard applies, and the search is valid if the officers reasonably could
conclude from the facts available to them that the third party had authority to consent to the search.
See id. at 186–89; see also United States v. Ayoub, No. 06-1610, 2007 WL 2323848, at *3 (6th Cir.
Aug. 16, 2007).
The facts available to the officers in this case show that MacIntosh had apparent, if not actual,
authority to consent to a search of the barns. First, the deer tag listed MacIntosh as the deer’s owner
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Johnson v. Weaver
and 10240 Carlisle Pike, a residential house located on Johnson’s farm, as MacIntosh’s address. Cf.
United States v. Moore, 130 F. App’x 728, 735 (6th Cir. 2005) (finding actual and apparent authority
where third party “had signed the lease agreement, had a key to the apartment, was unconstrained
in her movement within and to and from the apartment, and the rental contained her personal
property”). Second, MacIntosh’s unrebutted written statement informed the officers of his stepson
relationship to Johnson. We have recognized that, “[a]s a general consideration, there is every
reason to suppose that mature family members possess the authority to admit police to look about
the family residence, since in common experience family members have the run of the house.”
United States v. Clutter, 914 F.2d 775, 777 (6th Cir. 1990) (twelve and fourteen year-old children
could consent to search of mother’s bedroom). And we have no difficulty applying this reasoning
to the barns, which, Johnson admits, functioned for food and livestock storage, and as a second
garage—in other words, as “areas of usage common to all members of the family.” Id. Further,
“absent special circumstances, all rooms in the residence can be said to be areas of usage common
to all members of the family.” Id. Those special circumstances embrace only situations where
“family members . . . exclude from this common authority access to areas where they wish to
maintain an expectation of privacy, even from other members of the family.” Id.; see also United
States v. Gillis, 358 F.3d 386, 391 (6th Cir. 2004) (“Guests and co-residents in a house may have
privacy interests in specific property which cannot be waived by a third party’s consent to a general
search of the premises.” (citing United States v. Block, 590 F.2d 535, 541–42 (4th Cir. 1978))). But
the record includes no clues that Johnson locked the barns, or that he otherwise restricted
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Johnson v. Weaver
MacIntosh’s access to them. Under these circumstances, the government carries its burden of
demonstrating that the warrantless search of the barns was by consent because MacIntosh “enjoyed
that degree of access and control over [these areas] that afforded [him] the right to permit
inspection,” Clutter, 914 F.2d at 778, and because the deer tag listed 10240 Carlisle Pike as
MacIntosh’s address and the officers understood him to be Johnson’s stepson.
That leaves us to consider the effect of Johnson’s prior refusal in light of the Supreme
Court’s recent holding in Randolph that if a potential defendant with self-interest in objecting is
present and actually objects, a third party’s consent does not suffice for a reasonable search. 547
U.S. at 121. The Randolph Court also condemned third-party consent where there is “evidence that
the police have removed the potentially objecting tenant from the entrance for the sake of avoiding
a possible objection.” Id. Assuming that the officers violated the Fourth Amendment under
Randolph, qualified immunity—specifically, its “clearly established” prong—shields them from
personal liability.
To determine whether qualified immunity protects an official whose conduct violated a
constitutional right, the court must consider whether that right was clearly established. Saucier v.
Katz, 533 U.S. 194, 201 (2001). If the constitutional right was not clearly established at the time of
the challenged conduct, qualified immunity is proper because “an official could not reasonably be
expected to anticipate subsequent legal developments.” Harlow v. Fitzgerald, 457 U.S. 800, 818
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Johnson v. Weaver
(1982). Randolph, far from applying clearly established law, was a departure.2 In fact, the upshot
of some of our pre-Randolph cases was the exact opposite—we found valid consent from third
parties’ common authority over shared premises even after a potential defendant had already refused
the search. See, e.g., United States v. Sumlin, 567 F.2d 684, 688 (6th Cir. 1977) (“We cannot see
how the additional fact of Appellant’s initial refusal to consent in any way lessened the risk assumed
that his co-occupant would consent.”); J.L. Foti Constr. Co. v. Donovan, 786 F.2d 714, 717 (6th Cir.
1986) (same). Thus, because the officers did not violate a right clearly established at the time of the
challenged conduct, their claim to qualified immunity prevails.
C
Johnson next targets two defects in the search warrant the officers executed at his house.
First, Johnson points out that every fact cited in the affidavit to establish probable cause resulted
from the officers’ interview with MacIntosh, suggesting that this information somehow poisoned the
2
The Randolph Court itself noted the split of authority on whether one occupant may give
valid consent to a search of shared premises when a co-tenant was present and objecting:
All four Courts of Appeals to have considered this question have concluded that
consent remains effective in the face of an express objection. See United States v.
Morning, 64 F. 3d 531, 533–536 (CA9 1995); United States v. Donlin, 982 F. 2d 31,
33 (CA1 1992); United States v. Hendrix, 595 F. 2d 883, 885 (CAD.C. 1979) (per
curiam); United States v. Sumlin, 567 F. 2d 684, 687–688 (CA6 1977). Of the state
courts that have addressed the question, the majority have reached that conclusion as
well. See, e.g., Love v. State, 355 Ark. 334, 342, 138 S. W. 3d 676, 680 (2003);
Laramie v. Hysong, 808 P. 2d 199, 203–205 (Wyo. 1991); but cf. State v. Leach, 113
Wash. 2d 735, 744, 782 P. 2d 1035, 1040 (1989) (en banc) (requiring consent of all
present co-occupants).
547 U.S. at 108 n.1.
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Johnson v. Weaver
warrant. True, the officers relied solely on MacIntosh’s tip in obtaining the search warrant, but, as
we explained above, the initial trespass onto Johnson’s farm and the discussions with MacIntosh
were permissible under the Fourth Amendment. In the absence of a Fourth Amendment violation,
the trespass does not undermine the magistrate’s probable-cause finding. Cf. United States v.
Hopper, 58 F. App’x 619, 626 (6th Cir. 2003).
Second, Johnson argues that the search warrant violated the Fourth Amendment’s
particularity requirement because it listed an incorrect house number and did not adequately describe
the contraband to be seized. To determine whether a warrant’s description passes constitutional
muster, we do not ask whether it “is technically accurate in every detail,” but whether it is “sufficient
to enable the executing officer to locate and identify the premises with reasonable effort [so that]
there is [no] reasonable probability that another premises might be mistakenly searched.” United
States v. Durk, 149 F.3d 464, 465 (6th Cir. 1998) (internal citations and quotation marks omitted).
Despite the incorrect address, the warrant satisfies this standard: the affidavit accurately described
the house (“a 2-story Brown Brick with attached garage” and “brown roof”); described an unusual
feature (“House has a black cattle fence on the east, south, and west side”); and identified Johnson
as the occupant. Plus, the warrant’s affiant had visited Johnson’s farm that day, when MacIntosh
disclosed the shotgun’s location. See id. at 465 (warrant valid despite incorrect address); United
States v. Pelayo-Landero, 285 F.3d 491, 495–96 (6th Cir. 2002) (same). And the warrant
specifically identified the items sought, which were the alleged crime’s tools and fruits. See United
States v. Henson, 848 F.2d 1374, 1383 (6th Cir. 1988).
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Johnson v. Weaver
D
Finally, Johnson contests the scope of the search at his home, appearing simply to argue that
because “the guns and ammunition sought were immediately accessible,” the officers’ search was
overbroad because it lasted an hour and included looking through private areas such as bedroom
drawers and medicine cabinets. In other words, “once the shells were found,” Johnson argues, the
officers were not permitted to continue searching in “private areas.” We disagree. Obviously more
shotgun shells could be hidden elsewhere. This is particularly the case as the officers’ affidavits
reflect that they saw Johnson hurry into the house upon returning from jail. To find the shells—a
small, easy-to-conceal item—the officers could reasonably look in medicine cabinets or bedroom
drawers where such items could be hidden. Under these circumstances, we conclude that the
officers’ search of Johnson’s home was reasonable. See Brindley v. Best, 192 F.3d 525, 531–32 (6th
Cir. 1999).
III
We affirm the district court’s judgment.
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No. 06-4470
Johnson v. Weaver
KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I concur in
the judgment of the court.
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