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Christensen v. Quinn

United States District Court, D. South Dakota, Southern Division

September 10, 2014

ROSIE QUINN; SECOND CHANCE RESCUE CENTER; JAMES ADAMSON, individually and in his official capacity as a Turner County Commissioner; LUVERNE LANGEROCK, individually and in his official capacity as a Turner County Commissioner; JOHN OVERBY, individually and in his official capacity as a Turner County Commissioner; STEVE SCHMEICHEL, individually and in his official capacity as a Turner County Commissioner; LYLE VAN HOVE, individually and in his official capacity as a Turner County Commissioner; TIFFANI LANDEEN-HOEKE, individually and in her official capacity as Turner County State's Attorney; BYRON NOGELMEIER, individually and in his official capacity as Turner County Sheriff; JAY OSTREM, individually and in his official capacity as a Turner County Deputy; JIM SEVERSON, individually and in his official capacity as a Special Agent for the Division of Criminal Investigation; LARA CUNNINGHAM, individually and in her official capacity as a Revenue Agent for the South Dakota Department of Revenue and Regulations; THE HUMANE SOCIETY OF THE UNITED STATES a/k/a HSUS; WAYNE PACELLE; SCOTTLUND HAISLEY; DR. ADAM BAUKNECHT; EMERGENCY ANIMAL RESCUE SANCTUARY a/k/a EARS; DR. DAWN DALE; and TURNER COUNTY, SOUTH DAKOTA; Defendants

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For Daniel Reed Christensen, Plaintiff: Brian Lee Radke, Lee M. Pekoske, Sarah Marie Liberko, Radke Law Office, P.C., Sioux Falls, SD USA.

For Rosie Quinn, Second Chance Rescue Center, Defendants: Jack H. Hieb, Zachary W. Peterson, LEAD ATTORNEYS, Richardson, Wyly, Wise, Sauck, Hieb LLP, Aberdeen, SD USA.

For James Adamson, individually and in his official capacity as a Turner County Commissioner, Luverne Langerock, individually and in his official capacity as a Turner County Commissioner, John Overby, individually and in his official capacity as a Turner County Commissioner, Steve Schmeichel, individually and in his official capacity as a Turner County Commissioner, Lyle Van Hove, individually and in his official capacity as a Turner County Commissioner, Byron Nogelmeier, individually and in his official capacity as Turner County Sheriff, Jay Ostrem, individually and in his official capacity as a Turner County Deputy, Turner County, South Dakota, Defendants: Douglas M. Deibert, LEAD ATTORNEY, Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, SD USA.

For Tiffani Landeen-Hoeke, individually and in her official capacity as Turner County State's Attorney, Defendant: Lon J. Kouri, LEAD ATTORNEY, David A. Grennan, May & Johnson, P.C., Sioux Falls, SD USA.

For Jim Severson, individually and in his official capacity as a Special Agent for the Division of Criminal Investigation, Lara Cunningham, individually and in her official capacity as a Revenue Agent for the South Dakota Department of Revenue and Regulations, Emergency Animal Rescue Sanctuary, also known as EARS, Defendants: James Ellis Moore, James A. Power, LEAD ATTORNEYS, Woods, Fuller, Shultz & Smith, PC, Sioux Falls, SD USA.

For The Humane Society of The United States, also known as HSUS, Wayne Pacelle, Defendants: Thomas M. Frankman, LEAD ATTORNEY, Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD USA; Elizabeth S. Hertz, Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, SD USA.

For Scottlund Haisley, Defendant: Michelle Himes Randall, LEAD ATTORNEY, Richard D. Casey, Lynn, Jackson, Shultz & Lebrun, P.C., Sioux Falls, SD USA; Thomas G. Fritz, LEAD ATTORNEY, Lynn, Jackson, Shultz & Lebrun, PC, Rapid City, SD USA.

For Dr. Adam Bauknecht, Dr. Dawn Dale, Defendants: Gary J. Pashby, Michael Frederick Tobin, LEAD ATTORNEYS, Meghann M. Joyce, Boyce Greenfield Pashby & Welk, LLP, Sioux Falls, SD.

For Bryan Gortmaker, Kimberlie Stahl, Interested Parties: James Ellis Moore, James A. Power, LEAD ATTORNEYS, Woods, Fuller, Shultz & Smith, PC, Sioux Falls, SD USA.

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Pending are motions for summary judgment by all defendants. Plaintiff, Daniel Reed Christensen, opposes each motion, and separately moves for summary judgment against defendants Humane Society of the United States, Wayne Pacelle, Scottlund Haisley, Dr. Dawn Dale, Dr. Adam Bauknecht, United Animal Nations, Tiffani Landeen-Hoeke, Rosie Quinn, Second Chance Rescue Center, Jim Severson, Lara Cunningham, and Jay Ostrem.


Viewing the facts in the light most favorable to the nonmoving party and noting all disputes of material facts, the facts are as follows:

Christensen lives on a farm in Turner County, South Dakota. Some time before 2009, Christensen began breeding and selling dogs, both on his property and that of his son David and daughter-in-law Kelly.

Quinn is the founder of Second Chance Rescue Center (SCRC), a nonprofit corporation whose mission is to prevent cruelty to animals. During 2009, Quinn was also the executive director of SCRC. SCRC had a contract with Turner County to provide animal control services for Turner County. Adamson, Langerock, Overby, Schmeichel, and Van Hove were, at all relevant times, the county commissioners for Turner County. Landeen-Hoeke was the Turner County state's attorney. Ostrem was a Turner County deputy sheriff. Nogelmeier was the Turner County Sheriff. Severson was an agent with the South Dakota

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Department of Criminal Investigation. Cunningham was a revenue agent with the South Dakota Department of Revenue.

HSUS is a national animal protection organization. Pacelle is the CEO of HSUS. In 2009, Haisley was the director of emergency services for HSUS. UAN[1] is a private, nonprofit entity that organizes volunteers to provide temporary care for displaced animals. HSUS and UAN regularly coordinated on joint operations. Dr. Bauknecht is a veterinarian licensed in Wisconsin who worked for an animal shelter in Wisconsin and previously volunteered with UAN. Dr. Dale is a Sioux Falls veterinarian who works for Dale Animal Hospital. Dr. Dale also served as a member of the board of directors for SCRC.

In early 2009, Quinn received a report that Christensen was selling dogs over the internet without a sales tax license. Quinn reported this information to Landeen-Hoeke, who in turn passed the information on to Cunningham. Cunningham determined that Christensen did not have a state sales tax license and prepared a written notice informing Christensen that he was operating as a retailer without a license and had three days to obtain a license, commonly known as a three-day notice to quit. At Landeen-Hoeke's request, Cunningham also prepared an affidavit so Landeen-Hoeke could charge Christensen with the misdemeanor offense of operating a business without a sales tax license.

Cunningham requested the assistance of Turner County law enforcement to act as an escort when she served the three-day notice. Severson, who was in the area working on a murder investigation, volunteered to accompany Cunningham. Ostrem and Deputy Sheriff Jared Overweg, who is not named as a defendant here, were responsible for serving an arrest warrant on Christensen for the misdemeanor charge. One of the law enforcement officials requested the presence of animal control at Christensen's residence, although there is a factual dispute regarding which party requested animal control's assistance.

On April 9, 2009, Cunningham drove to Christensen's property to serve the three-day notice. She was accompanied by Severson, Ostrem, Overweg, Quinn, and Dana Wigg, an animal control officer who is not a defendant in this matter. When the party arrived at Christensen's property, a garage door was open and vehicles were present. When Christensen did not answer his door, Cunningham began to walk around the other buildings on the property to see if she could locate Christensen. During this time, Cunningham was accompanied by at least some of the other law enforcement officials, but it is unclear how closely the group stayed together.

When Christensen could not be located at his property, Cunningham and Severson decided to travel to David and Kelly Christensen's property to see if Christensen could be found there. The rest of the party left Christensen's property. After it became clear that no one was present at David and Kelly's property, Cunningham and Severson returned to Christensen's property and waited on the side of the road across from Christensen's driveway for Christensen to return.

When Christensen returned, Severson notified Ostrem. At that time, Cunningham served the three-day notice on Christensen.

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Christensen gave Cunningham permission to enter his house for the purpose of examining his business records. Cunningham and Severson then left Christensen's property to copy the records he provided. Ostrem arrested Christensen pursuant to the misdemeanor warrant and took Christensen in for booking. Christensen was released shortly thereafter. Subsequently, Christensen pleaded guilty to operating a business without a sales tax license, and he obtained a license within the three-day period.

In August 2009, Quinn received at least one complaint about a sick Weimaraner puppy that had been sold by Christensen. Based on that report, Quinn obtained a search warrant for David and Kelly Christensen's property, where she believed the Weimaraners were located. She executed that warrant on August 27, 2009, accompanied by Wigg and Ostrem. No Weimaraners were located on David and Kelly's property, and Ostrem noted that the health of the dogs present appeared adequate, although the living conditions observed were substandard. Quinn and Wigg also went to Christensen's property on August 27, 2009, although the record is in dispute as to how long they were on Christensen's property or what they did while they were there.

Based on the conditions observed at Christensen's property on April 9 and at both properties on August 27, Quinn decided to apply for search and seizure warrants for both properties. Quinn sent the draft affidavits in support of the warrant applications to Landeen-Hoeke for review. Landeen-Hoeke instructed Quinn to omit information from the warrant applications that had been obtained on April 9. The warrant applications also did not contain information that had been observed on August 27 at David and Kelly's property and at Dan Christensen's property.

On the morning of September 2, 2009, Quinn, Wigg, and Landeen-Hoeke appeared before State Circuit Court Judge Tim Bjorkman. Judge Bjorkman granted the search and seizure warrant for David and Kelly's property, but denied the application for Christensen's property. Judge Bjorkman allowed Quinn to testify, but again denied the warrant application. Landeen-Hoeke asked Judge Bjorkman if he would consider additional evidence observed by Quinn when she walked around Christensen's property. After Judge Bjorkman said he would consider that evidence, Landeen-Hoeke and Quinn stepped out of the courtroom briefly. When they returned, Quinn testified about her observations from April 9. After hearing the additional information, Judge Bjorkman issued the search and seizure warrant for Christensen's property.

In the days leading up to September 2, 2009, Quinn reached out to HSUS for assistance in removing what she anticipated to be a large number of dogs from both properties. HSUS arranged for a team, led by Haisley, to assist Turner County law enforcement with the search and seizure warrants. UAN, which frequently partnered with HSUS on such operations, arranged to have some volunteers present to care for the dogs once they were removed. Temporary housing for the dogs was set up at the Turner County Fairgrounds.

After Judge Bjorkman issued the two search and seizure warrants, Quinn, Ostrem, and the HSUS team proceeded to David and Kelly's property. Once all the dogs were removed from that property, the team moved to Christensen's property. In all, 173 dogs[2] were seized from both

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properties and transported to the Turner County Fairgrounds, where volunteers examined each animal. HSUS filmed its activities at the properties and the fairgrounds.

Subsequently, a grand jury indicted Christensen on 173 counts of inhumane treatment of an animal. While the criminal charges were pending, some of the dogs seized from Christensen died, while others were adopted or placed in foster care. After a suppression hearing, State Court Magistrate Judge Tami Bern ruled that Quinn misled Judge Bjorkman when requesting the September 2 warrants and ordered the evidence from the warrants suppressed. Subsequently, the criminal charges against Christensen were dismissed on July 2, 2010. Docket 73-5.

After the criminal charges against him were dismissed, Christensen[3] filed this suit, alleging a conspiracy to commit various constitutional violations and other state-law causes of action. According to Christensen, the defendants conspired to (1) illegally search his property on April 9, 2009; (2) illegally seize his property and deprive him of his due process rights on September 2, 2009; (3) commit the torts of malicious prosecution and intentional infliction of emotional distress; (4) violate the South Dakota Animal Enterprise Protection Act; and (5) engage in conduct amounting to criminal trespass and intentional damage to private property. See Docket 133 (amended complaint). All defendants have moved for summary judgment, and Christensen has also moved for summary judgment against some, but not all, defendants.[4]


Summary judgment is appropriate if the movant " shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party can meet this burden by presenting evidence that there is no dispute of material fact or by showing that the nonmoving party has not presented evidence to support an element of its case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To avoid summary judgment, " [t]he nonmoving party may not 'rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.'" Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)).

Summary judgment is precluded if there is a factual dispute that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For purposes of a summary judgment motion, the court views the facts and the inferences

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drawn from such facts " in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).



A. Official Capacity Claims

1. Cunningham and Severson

The Eleventh Amendment generally bars suits for damages against a state or state officials in their official capacities unless the state waives its sovereign immunity. See, e.g., Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). To support his official capacity claims against Severson, Christensen asserts that the state could be liable for failure to train Severson, or for deliberate indifference to Severson's allegedly poor job performance indicated by inmate suits and past credibility questions, Severson's aggressiveness, and the fact that Severson took time off from a murder investigation to assist with the service of a three-day notice. Docket 367 at 53-57. Christensen contends that those facts create " a jury question as to whether Severson qualifies for 11th Amendment protection." Docket 367 at 57.

Immunity from suit is a question of law for the court, not a question of fact for a jury to decide. See, e.g., Lopez v. Mendez, 432 F.3d 829, 835 (8th Cir. 2005) (discussing sovereign immunity); Entergy Ark., Inc. v. Nebraska, 358 F.3d 528, 556 (8th Cir. 2004) (" Whether a state has waived its sovereign immunity is a question of law which we review de novo." ). Christensen fails to address how South Dakota waived its immunity under the Eleventh Amendment. The cases cited by Christensen deal with liability for supervisors or for local governments, not state governments.[5] Because there is no evidence that South Dakota has consented to suit, Severson is entitled to summary judgment on Christensen's official capacity claims.

Furthermore, neither a state nor its officials acting in their official capacities are " persons" who may be sued for money damages under § 1983. See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 617, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002); Will, 491 U.S. at 71; McLean v. Gordon, 548 F.3d 613, 618 (8th Cir. 2008). The only relief requested by Christensen is money damages. Docket 133 at 29-30. Accordingly, Christensen's official capacity claims against Severson for money damages also fail because Severson, in his official capacity, is not a proper party under § 1983.

The amended complaint asserts claims against Cunningham in both her individual and official capacities. Christensen concedes, however, that there is no evidence to support a claim against Cunningham in her official capacity.[6] Docket 367 at 54.

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Thus, Cunningham is entitled to summary judgment with regard to the claims alleged against her in her official capacity.

2. Adamson, Langerock, Overby, Schmeichel, Van Hove, Landeen-Hoeke, Nogelmeier, Ostrem, and Turner County

Christensen alleges that Turner County, the Turner County Sheriff, a deputy sheriff, the Turner County state's attorney,[7] and the Turner County Commissioners[8] also participated in the conspiracy to deprive him of his Fourth Amendment rights. To subject the county defendants to liability in their official capacities,[9] Christensen must show that the constitutional violations alleged stemmed from an unconstitutional policy or custom. See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (" Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, 'the entity's 'policy or custom' must have played a part in the violation of federal law.'" (quoting Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985))). " Assuming the existence of an unconstitutional [government] custom, a § 1983 claimant cannot recover unless the claimant also proves that the custom caused the resulting injury." Ricketts v. City of Columbia, Mo., 36 F.3d 775, 779 (8th Cir. 1994). " '[I]t is when execution of a government's policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983.'" Id. (alterations and emphasis retained) (quoting Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1977)).

Christensen points to the following policies or customs of Turner County: the

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contract with SCRC giving Quinn the powers of a peace officer based on a repealed statute; Nogelmeier's policy of turning all animal control cases over to Quinn; and the policy or custom of giving Landeen-Hoeke too much power and the failure to remove her from office. See Docket 443 at 28 (contract with SCRC); id. at 29 (Nogelmeier's practice of allowing Quinn to handle the case); id. at 30-31 (Landeen-Hoeke's employment).

First, Christensen has failed to show that the allegedly unconstitutional policies are actually unconstitutional. The fact that the legislature repealed the statute upon which the contract between Turner County and SCRC was based calls into question the validity of the arrangement between the county and SCRC, but it does not implicate the federal constitutionality of the arrangement. Second, Christensen provides no support for the proposition that Nogelmeier's policy of allowing a private party with a government contract to investigate animal cruelty or neglect cases is unconstitutional. See, e.g., Filarsky v. Delia, 132 S.Ct. 1657, 1665-66, 182 L.Ed.2d 662 (2012) (" Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent work force to secure the services of private individuals." ). Third, even if Landeen-Hoeke is the inept official Christensen alleges, it would not be unconstitutional for Turner County to employ her.[10]

Furthermore, Christensen fails to show any of the alleged policies to be the cause of a violation of his Fourth Amendment rights. Even if the facts relating to the alleged conspiracy are true, the source of Christensen's harm is not any of the policies that he claims are unconstitutional, but rather the source of his harm is the conduct of the individuals. Additionally, Christensen fails to identify evidence of similar prior behavior amounting to a custom by any of these officials. Because Christensen cannot show that the policies he alleges as the bases for the county defendants' liability are unconstitutional or that the policies themselves inflicted the injury he claims to have suffered, the county defendants are entitled to summary judgment on the official capacity claims brought against them.

B. Individual Capacity Claims

Section 1983 provides a cause of action against any " person who, under the color of any statute, ordinance, regulation, custom, or usage, of any state" causes the deprivation of a right protected by federal law or the United States Constitution. 42 U.S.C. § 1983. In this case, Christensen alleges that the defendants conspired to deprive him of his constitutional rights. " To prove a § 1983 conspiracy claim against a particular defendant, the plaintiff must show: that the defendant conspired with others to deprive him or her of a constitutional right; that at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and that the overt act injured the plaintiff." Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999). A plaintiff " is additionally required to prove a deprivation of a constitutional right or privilege in order to prevail

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on a § 1983 civil conspiracy claim." Id.

A conspiracy may be, and often is, shown by circumstantial evidence. See Small v. McCrystal, 708 F.3d 997, 1010 (8th Cir. 2013). " 'The question of the existence of a conspiracy to deprive the plaintiffs of their constitutional rights should not be taken from the jury if there is a possibility the jury could infer from the circumstances a 'meeting of the minds' or understanding among the conspirators to achieve the conspiracy's aims.'" Id. (quoting White v. McKinley, 519 F.3d 806, 816 (8th Cir. 2008)). Nonetheless, " '[a] party may not cry 'conspiracy' and throw himself on the jury's mercy . . . . There must be a genuine issue about a material fact[.]'" Mershon v. Beasley, 994 F.2d 449, 452 (8th Cir. 1993) (quoting Gramenos v. Jewel Companies, 797 F.2d 432, 436 (7th Cir. 1986)). " To advance past the summary judgment stage, [a plaintiff] must 'allege with particularity and specifically demonstrate material facts that the defendants reached an agreement.'" Reasonover v. St. Louis Cnty., Mo., 447 F.3d 569, 582 (8th Cir. 2006) (quoting Marti v. City of Maplewood, Mo., 57 F.3d 680, 685 (8th Cir. 1995)).

1. Count II

Count II alleges a violation of Christensen's Fourth Amendment rights. According to Christensen, defendants Severson, Nogelmeier, Ostrem, Cunningham, Adamson, Langerock, Schmeichel, Van Hove, Quinn, SCRC, and Turner County conspired to deprive Christensen of his Fourth Amendment rights when they served the three-day notice and arrest warrant on Christensen on April 9, 2009.[11]

a. Fourth Amendment Protection

Before addressing whether any defendant is entitled to qualified immunity on Count II, the court will examine whether Christensen can show a Fourth Amendment violation on April 9, 2009. See Askew, 191 F.3d at 957 (requiring a plaintiff to show a deprivation of a constitutional right or privilege).

i. Christensen's House

The Fourth Amendment provides that the " right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. " [W]hen it comes to the Fourth Amendment, the home is first among equals." Florida v. Jardines, 133 S.Ct. 1409, 1414, 185

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L.Ed.2d 495 (2013). A Fourth Amendment violation occurs when an officer commits an unlicensed physical intrusion into a protected area or violates a person's reasonable expectation of privacy. See id. at 1417 (" The Katz reasonable-expectations test 'has been added to, not substituted for,' the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas." (italics in original) (quoting United States v. Jones, 132 S.Ct. 945, 951-52, 181 L.Ed.2d 911 (2012)).

Christensen identifies evidence that at least some of the officers came up to his house before walking around his property. See Docket 369-3 at 3 (stating that Cunningham knocked on the door to Christensen's house on April 9, 2009). But approaching a house and knocking on a door does not violate the Fourth Amendment. See Florida v. Jardines, 133 S.Ct. 1409, 1416, 185 L.Ed.2d 495 (2013) (" Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is 'no more than any private citizen might do.'" (quoting Kentucky v. King, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011)); Nikolas v. City of Omaha, 605 F.3d 539, 545-46 (8th Cir. 2010) (" It is clear that, without a warrant, Benson could enter the property through its open gate and proceed up the driveway to the front door of the main residence . . . . Likewise, viewing the exterior of the garage while proceeding up the driveway required no warrant." ). Furthermore, Christensen does not identify any evidence that any official intruded on his home itself beyond approaching the door and knocking. See Docket 369-12 at 7-8 (testifying that when Christensen did not answer his door, the group looked around the outbuildings for Christensen but never went behind his house). Christensen also does not contend that Cunningham's presence in his house or inspection of his business records, both of which took place after Christensen was home and with his consent, violated the Fourth Amendment. See Docket 369-3 at 6-7 (stating that Christensen consented to law enforcement entering his house and inspecting his business records). Because no Fourth Amendment violation took place at Christensen's home itself, the court must determine whether the other buildings on Christensen's property enjoy Fourth Amendment protection.

ii. Curtilage

The Fourth Amendment protects a person's home and the area immediately around it to which " the intimate activity associated with the sanctity of a man's home and privacies of life" extend. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). This protection, however, " does not extend past the curtilage. Officers are permitted to enter a resident's property to observe buildings located outside the home's curtilage." United States v. Gerard, 362 F.3d 484, 487 (8th Cir. 2004). Property outside the curtilage does not enjoy Fourth Amendment protection, and society does not recognize a reasonable privacy interest in open fields. Oliver, 466 U.S. at 179-80. Accordingly, to demonstrate a violation of his Fourth Amendment rights, Christensen must show that the areas entered by the government agents on April 9, 2009, were part of the curtilage of his home.

It is unclear whether a curtilage determination is a factual or legal question. Following the Supreme Court's decision in Ornelas v. United States, 517 U.S. 690, 116

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S.Ct. 1657, 134 L.Ed.2d 911 (1996), several circuits have treated curtilage determinations as legal conclusions and have applied de novo review. See, e.g., United States v. Cousins, 455 F.3d 1116, 1121 (10th Cir. 2006) (collecting cases). Although the Eighth Circuit has applied clear error review to curtilage determinations at least twice post- Ornelas, it has recognized a potential conflict between clear error review and Ornelas. See United States v. Bausby, 720 F.3d 652, 655-56 (8th Cir. 2013); United States v. Wells, 648 F.3d 671, 675-76 (8th Cir. 2011) (" [W]ere we the first panel of our court to review a district court's curtilage determination post- Ornelas, we might well hold that de novo review applies to such determinations. But we are not the first. . . . Having acknowledged the conflict in our holdings, it is not within our power to resolve it. Nor would resolution of that conflict affect the result in this case." ). Similarly, the outcome in this case does not depend on whether a curtilage determination is a question of law or fact. There are no genuine factual disputes that might impact whether the buildings in question are part of the curtilage of Christensen's home.

To decide whether outbuildings are part of the curtilage, a court should consider " the proximity of the buildings to the farmhouse, whether the farmhouse and [buildings] are within the same enclosure, the nature and uses of the [buildings] and the steps [Christensen] took to protect the [buildings] from being seen by others." Gerard, 362 F.3d at 487 (citing United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)). " [T]hese factors are not applied mechanically or in isolation . . . ." Id. at 488.

The buildings surrounding Christensen's home are various distances from Christensen's house itself. See Docket 174-9 at 9 (listing distances). The measured distances range from 18.5 feet to 284 feet. Id. But distance alone is not determinative. Gerard, 362 F.3d at 487 (" The distance alone, however, is not determinative that [a building] should be treated as an adjunct of the house." ). Similarly, some of the buildings are located on the same side of the driveway as the house but outside of what appears to be a small yard, while others sit across the driveway from the house. See Docket 337 at 21. Significantly, Christensen emphasizes that the buildings were separated from the house by chain-link fences. See Docket 367 at 37-40 (arguing that the outbuildings were enclosed to prevent intrusion); Docket 369-17 (showing two barns separately enclosed by chain-link fences).

Pictures of the outbuildings demonstrate that the buildings on Christensen's property[12] (1) were separated from the home by chain-link fences and kennels that contained dogs, debris, and water dishes containing discolored and dirty water; (2) were surrounded by overgrown vegetation and in some instances large amounts of dog feces; and (3) were boarded up where windows had once been but contained holes through which dogs could pass from the interior of the building to the kennels. See Docket 351-4 (showing the kennels and overgrown vegetation outside one of Christensen's buildings); Docket 419-1 at 1-4 (showing buildings surrounded by chain-link kennels, overgrown vegetation, and dog feces, and showing covered windows and holes in the sides of buildings); Docket 419-3 at 6 (showing a large amount

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of feces and mud surrounding a building); Docket 430-1 (showing a dog skeleton outside one of the buildings). Additionally, Christensen designates as evidence videos shot by HSUS personnel that further illustrate the state of the outbuildings on Christensen's property. See Docket 361-28, scene 10 (depicting conditions); scene 11 (same); scene 13 (same); scene 16 (same); see also United States v. Mooring, 137 F.3d 595, 597 (8th Cir. 1998) (" After seeing a video tape of the barn's interior, the district court noted 'that a picture is worth a thousand words,' and the video confirmed the barn was not associated with the Moorings' domestic life." ). In fact, Christensen himself argues that the condition and structure of the buildings should have indicated to any reasonable officer that Christensen was not inside, indicating that the use of the buildings was not consistent with human presence. See Docket 367 at 7 (discussing finding a dead rat behind one of the " rickety" doors); id. at 43 (" Given that Cunningham also claims she couldn't even figure out how [Christensen] could have entered the building and have managed to shut the rickety door behind him so that it stayed shut in the manner in which Cunningham and Severson found it, makes any claim that Severson and Cunningham were legitimately looking into the building in order to locate Christensen preposterous." ).

In considering the steps Christensen took to protect the buildings from observation, the buildings are set off from the highway by a row of trees, but they would be visible from the driveway as a visitor approached the house. See Docket 337 at 21. " The fact that one's view from the road of the [buildings at issue] is obscured by the trees does not itself establish that [those buildings] should be included within the farmhouse's Fourth Amendment protection." Gerard, 362 F.3d at 488. Although they are surrounded by chain-link fences, such fences do not limit visual observation and offer little protection from inspection. See United States v. Tolar, 268 F.3d 530, 532 (7th Cir. 2001) (" [A] chain-link fence does little to assert a privacy interest (as opposed to property interest) in details visible from outside the fence." ). In some instances it would have been possible to peer into the interior of the buildings through holes. See, e.g., Docket 419-1 at 1-4 (showing holes).

After weighing the four Dunn factors, the court concludes that the outbuildings on Christensen's property were not part of the curtilage of his home.[13] Although some of the buildings were close to the home, some were a great distance. The buildings were separately enclosed by fences, which set them off from the house itself. Overall, the layout of Christensen's property weighs in favor of a finding that the buildings are not part of the curtilage of his house. The buildings were also not protected from public view. Although they would not have been easily visible

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from the road bordering Christensen's property, they would have been visible from the driveway, where any member of the public might stand. The fences would not have obstructed one's view of the buildings, and the interiors would have been visible to anyone who could approach and look through one of the holes.

The most persuasive factor, though, is the nature and use of the buildings. Their appearance makes it clear that the buildings were not associated with domestic activities of an intimate or private nature. They were fenced off, surrounded by overgrown vegetation, dilapidated, unlit, and in several cases were surrounded by large amounts of waste. The state of these buildings is inconsistent with " the intimate activity associated with the sanctity of a man's home and privacies of life . . . ." See Oliver, 466 U.S. at 180. Therefore, the ...

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