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Westmore v. Hyde

United States District Court, W.D. Wisconsin

September 21, 2017




         Following a five-day trial, a civil jury concluded that defendants David Hyde and Terri Provost search of plaintiffs' property was reasonable and that those defendants, as well as defendant Callae Hyde, had reasonably seized (or authorized the seizure of) plaintiffs' donkey and horses. (Special Verdict -- Liability (dkt. #140).) On May 27, 2016, the clerk entered final judgment on all claims in favor of defendants. (Dkt. #146.) Plaintiffs Patricia and Dwight Westmore subsequently filed post-trial motions to alter or amend the judgment, which purport to challenge: (1) the jury's verdict as to their Fourth Amendment unreasonable search claims; and (2) the court's earlier grant of summary judgment on plaintiffs' claim for denial of procedural due process in connection with defendants' seizure of their donkey (See 5/5/16 Op. & Order (dkt. #93). (Dkt. #154.) For the reasons explained below, the court will deny plaintiffs' motion.[1]


         Plaintiffs technically moved the court to alter or amend the first three answers on the Special Verdict form to “Yes” and to amend the court's judgment, citing Federal Rule of Civil Procedure 59(e), even though Rule 59 authorizes district courts to amend judgments, not verdicts. See Frazier v. Boyle, 206 F.R.D. 480, 492 (E.D. Wis. 2002). In the same motion, plaintiffs alternatively seek an order for a new trial. Under Rule 59(a), a party may be entitled to a new trial “if the verdict is against the clear weight of the evidence or the trial was unfair to the moving party.” Whitehead v. Bond, 680 F.3d 919, 927 (7th Cir. 2012). To prevail on a Rule 59(e) motion to amend judgment, a party must “demonstrate a manifest error of law or present newly discovered evidence.” Seng-Tiong Ho v. Taflove, 648 F.3d 489, 505 (7th Cir. 2011); see also Harrington v. City of Chi., 433 F.3d 542, 546 (7th Cir. 2006) (a Rule 59(e) motion must “clearly establish” a manifest error of law). Regardless, plaintiffs are not entitled to relief under the applicable standards of review.

         I. Unreasonable Search

         A. Jury Instructions

         Plaintiffs argue that the court's instructions to the jury contained two material misstatements of law: (1) the closing liability instructions confused the jury by explaining the “plain view” doctrine in connection with a search, rather than a seizure; and (2) the court's response to a question from the jury added to that confusion by conflating the plain view doctrine with the “exigent circumstances” doctrine, which applies to both warrantless searches and seizures. Although the reasoning is difficult to follow and underwhelming, plaintiffs then assert that these errors “incorrectly suggested” the jury should find defendants' searches were not unreasonable “if defendants could merely ‘see something' from plaintiffs' driveway.” (Pls.' Opening Br. (dkt. #155) 8.)[2]

         With respect to the closing liability instructions, plaintiffs emphasize the following language from the “Unreasonable Search” instruction, which concerns the extension of the Fourth Amendment's protection against unreasonable searches to areas beyond the home itself:

Generally, there is no Fourth Amendment expectation of privacy for areas that can be viewed from a driveway, walkway or other areas that can be openly viewed by the public, including the visible interior of a barn or other structure when the doors are left open to public view. In determining whether a property owner has a reasonable expectation of privacy in a barn or other structure on their property, you may consider such factors as:
• its proximity to the home;
• whether it is fenced-in or closed;
• whether anything obstructs access to or view of it; and
• whether it is a typical location for a property owner to engage in private activities.

(Pls.' Opening Br. (dkt. #155) 5 (emphasis removed) (quoting Liability Jury Instructions (dkt. #142) 3).) Plaintiffs fail entirely, however, to articulate the reasons why they believe this portion of the instructions misstated the law, aside from insisting repeatedly that the “plain view” doctrine only applies to seizures, not searches, which on its face, at least, appears to be a non sequitur.

         Even taking the plaintiffs' excerpted, underlined language out of context from the whole “unreasonable search” instruction, neither the words “plain view, ” nor the elements of the plain view doctrine are included; nor do they appear anywhere else in the court's unreasonable search instructions. On the contrary, the language only addresses the scope of the property owners' reasonable expectation of privacy in areas that can be viewed from a driveway or walkway, including unobstructed views into an open barn or other structure on the property. As reflected in the final jury instructions conference, the court adopted this instruction after plaintiffs objected to defendants' much broader proposal, which described the concept of access by “open field” on the theory that none of the pastureland or outbuildings granted any expectation of privacy. Thus, the portion of the instructions plaintiffs would emphasize concerns only whether a search occurred within the meaning of the Fourth Amendment, and it was specifically directed to assist the jury in thinking about what defendants could see from different positions on plaintiffs' property without implicating their reasonable “expectation of privacy.” (See, e.g., 5/26/16 a.m. Trial Tr. (dkt. #153) 42-43, 50-51.) Tellingly, plaintiffs did not object to the introduction of the concept of an expectation of privacy, just to the court's attempt to better define that for the jury. (Id.)

         Plaintiffs' citing of a Second Circuit case for the proposition that the “distinction between searches and seizures is of critical importance as a matter of law” under the plain view doctrine just furthers the confusion. In Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991), the court simply held that warrantless seizures do not violate the Fourth Amendment when the government official's “initial intrusion . . . [was] lawful so that he can justify being in a position to make his discovery” and he “had probable cause to believe that the item seized was evidence of a crime.” Id. at 561 (citations omitted). That holding has no significance here. First, as noted previously, the language from the jury instruction in this case makes no reference, either explicit or implicit, to the plain view doctrine. Plaintiffs' description of it as the so-called “plain view” instruction derives from a shorthand label used by the parties and the court to refer to the language defining a reasonable expectation of privacy, as reflected in discussions about the liability jury ...

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