Property check of home by conservation officer not an unreasonable search

Under the “no good deed goes unpunished” category:

A Michigan homeowner sued a conservation officer who came onto his unoccupied property after seeing tiretracks stop and footprints continue in the snow. The officer conducted a property check to assure himself that the house had not been broken into because the curtains were open and unoccupied houses usually have the curtains drawn, and open curtains could indicate a burglar inside looking for approaching persons. The officer determined there was no break-in, but left his business card. The plaintiff had a security video running, and he sued the officer for nominal damages. The defendant agreed in the district court that the homeowner had a reasonable expectation of privacy, but determined that the officer’s entry onto the land and even looking in the windows was such a low level of intrusion that it did not satisfy the second Katz requirement. Taylor v. Mich. Dep’t of Natural Res., 502 F.3d 452, 2007 FED App. 0377P (6th Cir. 2007):

The nature of the property in which plaintiff claims an expectation of privacy weighs in favor of finding that society is willing to recognize that expectation as reasonable. After all, Officer Rose’s “property check” entailed observation of the interior of the home, “the prototypical and hence most commonly litigated area of protected privacy.” Kyllo v. United States, 533 U.S. 27, 34 (2001). However, it is important to note that Officer Rose did not enter the plaintiff’s home. Rather, he checked the doors and windows to assure that they were secure, and he engaged in a relatively unintrusive view into the building’s interior, per departmental custom. His survey of the premises lasted only around five minutes. “[T]he Fourth Amendment has drawn a firm line at the entrance to the house,” requiring exigent circumstances to justify a warrantless search. Payton v. New York, 445 U.S. 573, 590 (1980) (emphasis added).

There is even an exception to this rule based on suspicion of burglary. Past cases reveal an “established precedent that the police may ‘enter a residence … [if they] believe that there is a burglary in progress.” United States v. McClain, 430 F.3d 299, 304-305 (6th Cir. 2005), (citing United States v. Reed, 141 F.3d 644, 649 (6th Cir. 1998)). While such cases have indicated that probable cause and exigency are both required to justify warrantless entry, it makes sense for the law to impose a greater burden on officers entering a home to ensure its safety than it demands to justify looking inside through open windows. Officer Rose did not enter plaintiff’s home. He observed the interior of the house and its exterior from the outside only. The Supreme Court has stated that even the fact “that [an] area is within the curtilage does not itself bar all police observation.” Ciraolo, 476 U.S. at 213. Thus it becomes critical to examine the extent of the government intrusion, which Widgren has prescribed should include an inquiry into the methods used and purpose for the conduct at issue. Widgren, 429 F.3d at 583.

Considering Officer Rose’s limited methods of observation and the purpose of his conduct, we conclude that this “property check” is not a Fourth Amendment search. In terms of methods, existing Fourth Amendment jurisprudence distinguishes between cases in which officers engaged in “ordinary visual surveillance” and those in which the officers employ “technological enhancement of ordinary perception.” Kyllo, 533 U.S. at 31, 33. … Officer Rose, however, engaged in only a brief, minimally intrusive visual inspection.