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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