Case Information
*1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MICHAEL SCHMIDT CIVIL ACTION
VERSUS No. 16-15902
BRETT STASSI, ET AL. SECTION I
ORDER AND REASONS
Eugenie Boisfontaine went missing in Baton Rouge in 1997. Her battered and decomposing body was found three months later in a Louisiana bayou. The murder
has never been solved.
Now, twenty years later, the search to find her killer is playing out on the Killing Fields —a nationally televised reality show on the Discovery Channel.
Detective Rodie Sanchez, a grizzled veteran of the Iberville Parish Sheriff’s office,
came out of retirement to lead the search for Eugenie’s murderer. Detective Sanchez
has vowed that only death will stop him.
The Sheriff’s investigators attempted to link potential suspects to DNA evidence found near the body. Most of the individuals of interest to the investigation
voluntarily provided the investigative team with DNA samples. Michael Schmidt—
Eugenie’s ex-husband—did not.
Detective Sanchez found that refusal suspicious. He could not believe that Schmidt, if Schmidt was truly innocent, would not want to help locate Eugenie’s
murderer. Further, the fact that Schmidt had the temerity to hire multiple criminal
defense lawyers, including the former United States Attorney for the Eastern District
of Louisiana, made Detective Sanchez all the more suspicious.
With Schmidt not cooperating, the investigators set out to obtain a DNA sample involuntarily. They initially tried a subpoena. But when Schmidt’s legal
team filed a motion to suppress, the investigators took another tack: they decided to
surreptitiously tail Schmidt until he unknowingly left DNA in public. Whether they
did so because it made for good television is entirely unclear.
Members of the investigative team followed Schmidt’s Hummer through Jefferson Parish until he stopped at a strip mall and went into a shop. One of the
officers jumped out of her unmarked chase vehicle and used a cotton swab on the
Hummer’s door handle. The Sheriff’s office then compared the DNA that was
obtained with the DNA found near Eugenie’s body. The DNA did not rule Schmidt
out as a potential suspect.
Schmidt believes that the officers’ conduct was unlawful. In particular, he objects that both (1) the swabbing of the car and (2) the DNA analysis constitute
unconstitutional searches under the Fourth Amendment. Schmidt also argues that
filming the process was a separate Fourth Amendment violation in and of itself. The
Sheriff and his officers disagree.
The parties filed cross motions [1] for summary judgment on the threshold question of whether either the swabbing or the DNA analysis constituted a Fourth
Amendment “search”. The officers also request qualified immunity. For the following
*3 reasons, the Court concludes that the swabbing of the door constituted a Fourth
Amendment search, but that the officers are entitled to qualified immunity on all
Fourth Amendment claims.
I.
A. Summary judgment is proper when, after reviewing the pleadings, the discovery and disclosure materials on file, and any affidavits, the court determines
that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party
seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett , 477 U.S. 317, 323 (1986). The party seeking summary judgment
need not produce evidence negating the existence of material fact, but need only point
out the absence of evidence supporting the other party’s case. Id. ; Fontenot v. Upjohn
Co. , 780 F.2d 1190, 1195 (5th Cir. 1986).
Once the party seeking summary judgment carries its burden pursuant to Rule 56, the nonmoving party must come forward with specific facts showing that there is
a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp. , 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied
by creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory
allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little
v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a
genuine issue of material fact exists when the “evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. ,
477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment
may not rest upon the pleadings, but must identify specific facts that establish a
genuine issue. Id. The nonmoving party’s evidence, however, “is to be believed, and
all justifiable inferences are to be drawn in [the nonmoving party’s] favor.” Id. at 255;
see also Hunt v. Cromartie , 526 U.S. 541, 552 (1999).
B. Governmental officers sued in their individual capacity are entitled to qualified immunity insofar as their conduct “did not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald , 457 U.S. 800, 818 (1982). When qualified immunity is properly applied,
“it protects all but the plainly incompetent or those who knowingly violate the law.”
Ashcroft v. al-Kidd , 563 U.S. 731, 743 (2011) (internal quotation marks omitted).
“Once a defendant invokes qualified immunity . . . the burden shifts to the plaintiff
to demonstrate the inapplicability of the defense.” McCreary v. Richardson , 738 F.3d
651, 655 (5th Cir. 2013).
A plaintiff must make two showings to overcome a qualified immunity defense.
First, the plaintiff must show that the officer’s conduct violated a constitutional right.
See Heaney v. Roberts , 846 F.3d 795, 801 (5th Cir. 2017). Second, the plaintiff must
show that the constitutional right at issue was clearly established at the time of the
alleged violation. Id. A court has the discretion to consider the qualified immunity
analysis in any order it chooses. See Pearson v. Callahan , 555 U.S. 223, 236 (2009).
II. The parties dispute the threshold issue of whether swabbing the door of Schmidt’s Hummer constituted a Fourth Amendment “search.” The Court concludes
the swabbing was a search under the Fourth Amendment, but that a reasonable
officer could conclude otherwise.
A. Between United States v. Katz [2] and United States v. Jones , [3] the sine qua non of a Fourth Amendment search was a governmental intrusion into an area in which
an individual had a reasonable expectation of privacy. See Smith v. Maryland , 442
U.S. 735, 740 (1979). Thus, “notions of physical trespass based on the law of real
property were not dispositive” in Fourth Amendment analysis, United States v.
Knotts , 460 U.S. 276, 285 (1983), and the Amendment’s reach did not “turn upon the
presence or absence of a physical intrusion,” id. at 280 (emphasis added). “An actual
trespass” was “neither necessary nor sufficient to establish a constitutional violation.”
United States v. Karo , 468 U.S. 705, 713 (1984).
Under the Katz approach, the officers here would not have performed a Fourth Amendment search. An individual has no reasonable expectation of privacy in the
exterior of an automobile. See Carswell v. Lewis , 417 U.S. 583, 590-93 (1974)
*6 (plurality opinion). Thus, even though a detective certainly touched Schmidt’s car
with the cotton swab, the detective’s conduct would not have implicated Schmidt’s
Fourth Amendment rights because Schmidt had no reasonable expectation of privacy
in materials on the exterior of his car. Cf. New York v. Class , 475 U.S. 106, 114 (1986)
(“The exterior of a car, of course, is thrust into the public eye, and thus to examine it
does not constitute a ‘search.’”).
Jones , however, altered (or at least clarified) Fourth Amendment doctrine. Specifically, held that an individual need not invariably have a reasonable
expectation of privacy before a governmental intrusion constitutes a Fourth
Amendment search. See 565 U.S. at 406. Instead, Jones instructs that some—but
not all—trespasses are also Fourth Amendment searches. See Jones , 565 U.S. at 406-
12. So the net-net of Jones is that governmental actions can constitute Fourth
Amendment searches “even without a showing of any intrusion upon a justified
expectation of privacy.” 2 Wayne R. LaFave et al, Criminal Procedure § 3.2 (4th
Westlaw ed. 2016); cf. United States v. Turner , 839 F.3d 429, 434 (5th Cir. 2016)
(articulating two-part test).
In returning trespass to the forefront of Fourth Amendment law, Jones prompts just as many questions as it answers. For example, not all trespasses
constitute Fourth Amendment searches. See, e.g. , Oliver v. United States , 466 U.S.
170 (1984); United States v. Beene , 818 F.3d 157, 162-63 (5th Cir. 2016). And, perhaps
even more importantly, trespass “has taken many forms and changed over time.” Orin
S. Kerr, The Curious History of Fourth Amendment Searches 2012 Sup. Ct. Rev. 67,
90. But neither Jones nor Florida v. Jardines provides much guidance as to what
version of trespass law this Court is supposed to follow. Compare Jardines , 133 S.
Ct. 1409, 1417 (2013) (observing that “[o]ne virtue of the Fourth Amendment’s
property-rights baseline is that it keeps easy cases easy,” and explaining that
“physically intruding on . . . property to gather evidence is enough to establish that a
search occurred”), with id. at 1424 (Alito, J., dissenting) (“[T]he real law of trespass
provides no support for the Court’s holding today. While the Court claims that its
reasoning has ‘ancient and durable roots,’ its trespass rule is really a newly struck
counterfeit.” (citation omitted)).
Here, the search involved the physical touching of Schmidt’s Hummer in a public parking lot. The search, however, did not damage the Hummer in any way.
Accordingly, this Court has to make two determinations when evaluating whether a
Fourth Amendment search occurred:
• Does the trespass-trigger for Fourth Amendment coverage extend to a trespass to chattels?
• If so, was the physical touching a trespass to chattels even though the touching did not harm or otherwise affect the Hummer?
Jones— which addressed a trespass against a car—settles that a trespass to chattles can constitute a Fourth Amendment search regardless of whether there is a
reasonable expectation of privacy. See 565 U.S. at 410 (observing that officers
“trespassorily inserted” the GPS tracker on the Jeep); see also id. at 419 & n.2 (Alito,
J., concurring) (implying Court was concluding that search was a trespass to
chattles). Thus, just as a trespass to land can constitute a Fourth Amendment search,
a trespass to chattles may as well. See, e.g. , United States v. Ackerman , 831 F.3d
1292, 1307-08 (10th Cir. 2016). And there is no question that an automobile—unlike
an open field—is protected by the Fourth Amendment: an automobile is “an effect as
that term is used” in the Fourth Amendment. Jones , 565 U.S. at 404. [4]
But was this a trespass to chattles? That is a trickier issue. As Justice Alito’s Jones concurrence explained, the elements of the tort have changed since the
founding. “At common law, a suit for trespass to chattels could be maintained if there
was a violation of the dignitary interest in the inviolability of chattels.” 565 U.S. at
419 & n.2 (Alito, J., concurring) (internal quotation marks omitted). Meanwhile,
“today there must be some actual damage to the chattel before the action can be
maintained.” Id. (internal quotation marks omitted). So the choice of a particular
understanding of trespass can be outcome determinative when applying if a
search does not damage or otherwise affect a particular chattel.
The Court concludes that it should follow the view that an officer need not cause damage before committing a trespass to chattels. Not only is that the view of
the Second Restatement of Torts, see Restatement (Second) of Torts § 217, [5] but it also
*9 has the added advantage of not making the scope of the Fourth Amendment turn on
whether someone scratches the paint.
The officers raise two main counter-arguments. Neither succeeds.
First, the officers point the Court to Cardwell ’s conclusion that police did not violate the Fourth Amendment when they scraped paint off a car that was left in a
public parking lot. See 417 U.S. 583 (1974) (plurarily). But the Cardwell plurality
opinion—beyond relying solely on the reasonable expectation of privacy examination
that was subsequently supplemented with the trespass inquiry in Jones ( id. at 591) [6]
—is procedurally inapposite. In particular, though Cardwell does begin the inquiry
by considering many of the factors traditionally examined when determining whether
a Fourth Amendment search occurred, Cardwell does not definitively resolve the
issue. Instead, Cardwell ultimately relies on the Court’s conclusion that there was
probable cause for the search. See id. at 592 (“Under circumstances such as these,
where probable cause exists, a warrantless examination of the exterior of a car is not
unreasonable under the Fourth and Fourteenth Amendments.”). By contrast, here,
the parties have just addressed the threshold question of whether there was a search
*10 and they have not addressed probable cause. So it is too early to consider whether
Cardwell excuses the officers’ swabbing.
Second, the officers also analogize the swabbing to case law permitting officers to examine garbage left on a street corner. See, e.g. , California v. Greenwood , 486
U.S. 35 (1988). The officers suggest that Schmidt “abandoned” his DNA on the
exterior of his car and, therefore, it did not violate the Fourth Amendment for officers
to acquire the abandoned DNA via the swabbing. But whatever the constitutionality
of searching Schmidt’s curbside garbage for his abandoned DNA (a question on which
the Court expresses no opinion), the officers’ argument that they may trespass to
acquire “abandoned” property is not viable post- Jardines . See 133 S. Ct. at 1417
(“That the officers learned what they learned only by physically intruding on
[defendant’s] property to gather evidence is enough to establish that a search
occurred.”).
The Court concludes that the undisputed facts of this case establish that the officers committed a trespass to chattels when they swabbed Schmidt’s Hummer.
Under that trespass also constituted a Fourth Amendment search. Thus,
Schmidt is entitled to partial summary judgment in that the swabbing constituted a
search under the Fourth Amendment. The Court stresses that given the present
procedural posture—the parties addressed only the threshold issue of whether the
swabbing was a Fourth Amendment search—the Court expresses no opinion on the
search’s ultimate constitutionality.
B. Nonetheless, the Court concludes that, under the second prong of the qualified immunity analysis, the officers are entitled to qualified immunity. The law at the
time of the swabbing did not clearly establish that the swabbing was a Fourth
Amendment search. Accordingly, the officers’ conduct did not violate clearly
established constitutional law.
To be sure, the right to be free from unreasonable searches and seizures is clearly established. However, that “abstract rule[] give[s] officials little practical
guidance as to the legality of particular conduct.” Kinney v. Weaver , 367 F.3d 337,
350 (5th Cir. 2004) (en banc). Therefore, when evaluating qualified immunity, this
Court must look beyond broad constitutional guarantees and focus instead on
whether officials have received “particularized” notice that “their conduct is
unlawful.” Id.
On that point, the law is simply too unsettled after Jones for the Court to conclude that it is “beyond debate,” Ashcroft v. al-Kidd , 563 U.S. 731, 741 (2011), that
the officers performed a Fourth Amendment search. Neither Jones nor Jardines is
precise as to the body of property law this Court is supposed to follow when applying
Jones ’s trespass test. That unanswered question at the time of the swabbing would
permit a reasonable officer to conclude that the swabbing did not constitute a Fourth
Amendment search.
For example, a reasonable officer could have concluded—just as the Supreme Court has in the Fifth Amendment context—that -triggering trespasses are
“determined by reference to existing rules or understandings that stem from an
independent source such as state law.” Georgia v. Randolph , 547 U.S. 103, 144 (2006)
(Scalia, J., dissenting). A reasonable officer could then pivot from that understanding
of the Fourth Amendment, and conclude that because the brief, harmless, nearly
imperceptible touching would not constitute an actionable trespass under certain
understandings of modern tort law, see 565 U.S. at 419 & n.2 (Alito, J., concurring),
it did not constitute a Jones -triggering trespass. Therefore qualified immunity is
proper: an officer should not be denied qualified immunity simply because he or she
looked to what an actionable trespass was as opposed to the more technical definition
of a trespass. See generally Restatement (Second) of Torts § 217 cmt. a (“This Section
sets forth the ways in which a trespass may be committed. It does not purport to state
the circumstances or conditions under which a trespass makes the actor liable.”).
After all, Jones —notwithstanding Justice Alito’s observation that there “was no actual damage to the vehicle,” id. —is not necessarily dispositive of the question
here as to whether a touching must cause harm before constituting a Fourth
Amendment search. involved the permanent (or at least semi-permanent)
physical attachment of a GPS tracker to a car. By contrast here, police only briefly
touched Schmidt’s Hummer and the vehicle was not affected in any other way.
An officer could conclude that the difference between a temporary, imperceptible swabbing and a physical installation was material to the Fourth
Amendment analysis. It is a simple matter of physics—Force = Mass x
Acceleration [7] —that any mass added to a car necessarily affects the car. So although
the trespass in Jones may not have harmed the car, it certainly affected it in a small,
yet nonetheless ultimately measurable and concrete fashion. Thus, a reasonable
officer could fairly distinguish the swabbing here from the tracker in on the
grounds that the swabbing—beyond removing some DNA—had no concrete effect on
the vehicle or its owner whatsoever (beyond, perhaps, turning up less-than-helpful
evidence on Schmidt).
Because a reasonable officer could fairly conclude that the swabbing of the door handle in a public parking lot did not constitute a Fourth Amendment search, the
officers are entitled to qualified immunity with respect to the swabbing.
III. In addition to challenging the door swabbing as an unconstitutional search under the Fourth Amendment, Schmidt also argues that the DNA analysis
constituted a Fourth Amendment search.
But courts disagree on whether a DNA analysis constitutes a Fourth Amendment search. Compare United States v. Davis , 690 F.3d 226, 250 (4th Cir.
2012) (“[T]he government’s extraction of Davis’ DNA sample from his clothing and
creation of his DNA profile for testing in the Neal murder investigation constituted
unreasonable searches under the Fourth Amendment.”), with Commonwealth v.
*14 Arzola , 26 N.E.3d 185, 193-94 (Mass. 2015) (“[W]e doubt that the Fourth Amendment
reasoning of the Davis court will be adopted by the United States Supreme Court.”),
and Raynor v. State , 99 A.3d 753, 764 (Md. 2014) (The Davis Court’s conclusion that
the DNA testing at issue in that case constituted a Fourth Amendment search rested
on what may now be a faulty premise . . . .”). Therefore, the officers are entitled to
qualified immunity with respect to the DNA analysis “because we do not subject
officials to monetary liability for picking the losing side when there is divergent case
law.” McCreary , 738 F.3d at 658 (internal quotation marks omitted). The Court does
not address whether the DNA analysis was a Fourth Amendment search.
IV. Finally, Schmidt argues that officers unconstitutionally permitted the Discovery Channel to film the swabbing. In support, Schmidt relies on Wilson v.
Layne ’s holding that bringing news reporters into a home during a search violates
the Fourth Amendment. See 526 U.S. 603 (1999).
Wilson , however, is distinguishable. The filmed swabbing at issue here took place in a public parking lot—not a home. See Wise v. City of Richfield , No. 02-4274,
2005 WL 361492, at *3 (D. Minn. 2005) (distinguishing Wilson on the ground that
Wilson concerned a search of a residence). Unlike a home, an individual has no
reasonable expectation of privacy in how their car exterior appears in a public place.
See, e.g. , Class , 475 U.S. at 114; cf. Cardwell , 417 U.S. at 590 (“A car has little capacity
for escaping public scrutiny.”). Thus, the officers are entitled to qualified immunity
on the filming claim because filming the exterior of a car in a public parking lot did
not violated clearly established constitutional law.
V.
Accordingly,
IT IS ORDERED that Michael Schmidt’s motion for summary judgment is GRANTED IN PART . The swabbing of the Hummer door constituted a Fourth
Amendment search. The remainder of Schmidt’s motion for summary judgment is
DENIED.
IT IS FURTHER ORDERED that the officers’ motion for summary judgment is GRANTED IN PART. All federal claims against the officers in their individual
capacities are DISMISSED WITH PREJUDICE . The remainder of the officers’
summary judgment motion is DENIED .
New Orleans, Louisiana, April 18, 2017.
_______________________________________ LANCE M. AFRICK UNITED STATES DISTRICT JUDGE
[1] R. Doc. No. 16; R. Doc. No. 17.
[2] See 389 U.S. 347, 360-62 (1967) (Harlan, J., concurring).
[3] 565 U.S. 400 (2012).
[4] See generally U.S. Const. Amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects , against unreasonable searches and seizures, shall not be violated . . . .” (emphasis added)).
[5] See United States v. Sweeney , 821 F.3d 893, 899 (7th Cir. 2016) (“The Restatement approach to trespass is a good starting point.”) (citing Laurent Sacharoff, Constitutional Trespass , 81 Tenn. L. Rev. 877, 891 (2014)).
[6] The same is true of New York v. Class —another case that the officers attempt to rely on. See 475 U.S. 106, 114 (1986). Further, even under the test set out in Class , none of the VIN-specific reasoning, see id. (“A motorist must surely expect that such regulation will on occasion require the State to determine the VIN of his or her vehicle . . . . [I]t is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of the automobile.”), would necessarily carry over to the facts here. Thus, while Class may be somewhat helpful to the officers at the atmospheric level when determining whether the constitutional rights at issue were clearly established, it is of little help in responding to the argument that the swabbing constituted a Fourth Amendment search under .
[7] See also Lapsley v. Xtek, Inc. , 689 F.3d 802, 812 n.3 (7th Cir.2012) (“In the centuries since publication of the Principia , only a few exceptions have been found for Newton’s Second Law. Einstein discovered that as velocity nears the speed of light, corrections need to be made to account for effects of special relativity. Also, there are complications at the extremely small scale of quantum mechanics.”).