                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 08a0243p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                      X
                                 Plaintiff-Appellee, -
 WILLIAM JACOB,
                                                       -
                                                       -
                                                       -
                                                           No. 07-1534
           v.
                                                       ,
                                                        >
 TOWNSHIP OF WEST BLOOMFIELD, MICHAEL                  -
                                                       -
                            Defendants-Appellants. -
 KILLIAN, LARRY RUSHING,

                                                       -
                                                      N
                       Appeal from the United States District Court
                      for the Eastern District of Michigan at Detroit.
                  No. 03-70014—John Corbett O’Meara, District Judge.
                                             Argued: June 4, 2008
                                      Decided and Filed: July 3, 2008
                      Before: MERRITT, CLAY, and GILMAN, Circuit Judges.
                                              _________________
                                                   COUNSEL
ARGUED: Joseph Nimako, CUMMINGS, McCLOREY, DAVIS & ACHO, Livonia, Michigan,
for Appellants. Elizabeth A. Downey, STEINBERG, SHAPIRO & CLARK, Southfield, Michigan,
for Appellee. ON BRIEF: Joseph Nimako, CUMMINGS, McCLOREY, DAVIS & ACHO,
Livonia, Michigan, for Appellants. Elizabeth A. Downey, STEINBERG, SHAPIRO & CLARK,
Southfield, Michigan, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        CLAY, Circuit Judge. Defendant Michael Killian, a land ordinance enforcement officer
employed by the Township of West Bloomfield (“Township”), appeals the decision of the district
court denying him1summary judgment with respect to Plaintiff William Jacob’s claim brought under
42 U.S.C. § 1983. According to Plaintiff, Defendant violated his Fourth Amendment rights when
Defendant entered Plaintiff’s property without a warrant to inspect the property for criminal


         1
          Plaintiff brought various claims against Defendant, the Township and against Larry Rushing, another land use
inspector. Both Killian and Rushing were sued in both their individual and official capacities. Jacob v. Township of
West Bloomfield, 192 F. App’x 330, 332 (6th Cir. 2006). Only Plaintiff’s Fourth Amendment claims brought against
Defendant Michael Killian in his individual capacity are at issue in this appeal.


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No. 07-1534               Jacob v. Township of West Bloomfield, et al.                        Page 2


violations of a land use ordinance. Defendant claims that he is entitled to qualified immunity against
Plaintiff’s claim, but the district court denied this assertion of immunity. Because it is clearly
established that a criminal investigation must be conducted within the requirements of the Fourth
Amendment, we AFFIRM the decision of the district court.
                                    STATEMENT OF FACTS
        Upon receiving a complaint regarding the condition of Plaintiff William Jacob’s property,
Defendant Michael Killian investigated the property and discovered inoperable vehicles and “castoff
material” in the yard surrounding Plaintiff’s home. Jacob v. Township of West Bloomfield, 192 F.
App’x 330, 331 (6th Cir. 2006). Many of these items had been sitting on the property so long that
grass was growing around them. Id. Accordingly, Defendant notified Plaintiff that he was in
violation of a local land use ordinance. Id.
        After a series of investigations and notices which did not, in Defendant’s opinion, bring
about Plaintiff’s compliance with this ordinance, the Township eventually filed misdemeanor
criminal charges against Plaintiff. Id. at 332. In October of 1999, Plaintiff pled guilty to these
charges. In return for his guilty plea, the Township agreed to an arrangement whereby Plaintiff
would be given fourteen days to clean up his property. Id. If Plaintiff failed to achieve compliance
with the land use ordinance within this fourteen day period, Plaintiff would be sentenced to thirty
days in the county jail. Id.
        On October 15, 1999, and again three days later, Defendant entered the curtilage of
Plaintiff’s property without a warrant, and determined that Plaintiff remained in non-compliance
with the land use ordinance. As a result, Plaintiff eventually served thirty days in a county jail.
Jacob, 192 F. App’x at 332. On November 15, 1999, while Plaintiff was still in jail, Defendant
again entered the curtilage of Plaintiff’s property without a warrant, and again determined that
Plaintiff was not in compliance with the land use ordinance. After Plaintiff was released, Defendant
continued to enter Plaintiff’s property and cite him for violations of the land use ordinance. Jacob,
192 F. App’x at 332.
        Plaintiff filed this suit under § 1983 alleging, among other things, that Defendant violated
the Fourth Amendment when he entered the property to inspect it without a warrant. Id. Defendant
sought summary judgment, claiming he is entitled to qualified immunity. The district court, while
dismissing several unrelated claims, held that Defendant is not entitled to qualified immunity with
respect to Plaintiff’s Fourth Amendment claims.
       On the prior appeal of this case, we held that any Fourth Amendment claims arising out of
searches occurring prior to Plaintiff’s guilty plea and incarceration were precluded by Heck v.
Humphrey, 512 U.S. 477, 487 (1994), on the grounds that a civil suit holding that these searches
were improper would undermine the basis of Petitioner’s guilty plea and sentence. Jacob, 192 F.
App’x at 334. This decision constitutes the law-of-the-case, and is not before us again on appeal.
        With respect to the warrantless searches occurring subsequent to Petitioner’s guilty plea and
incarceration, however, we determined that Heck does not prevent Plaintiff from seeking civil relief.
Id. at 335. Moreover, we also determined that, in the course of these warrantless searches,
Defendant entered the area immediately surrounding Plaintiff’s home which is entitled to the most
robust Fourth Amendment protection. Id. Nevertheless, we remanded Plaintiff’s remaining Fourth
Amendment claims back to the district court to determine whether Defendant’s intrusion upon the
property constituted a Fourth Amendment search under Widgren v. Maple Grove Township, 429
F.3d 575 (6th Cir. 2005). On remand, the district court determined that Widgren is inapposite, and
again denied qualified immunity to Defendant. The sole issue now before this Court on appeal is
whether the district court properly held that Widgren does not preclude Plaintiff’s claim.
No. 07-1534                Jacob v. Township of West Bloomfield, et al.                          Page 3


                                            DISCUSSION
                                         Standard of Review
        A district court’s denial of summary judgment is reviewed de novo. Farhat v. Jopke, 370
F.3d 580, 587 (6th Cir. 2004). Such a denial should be affirmed unless “the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact” as
to an essential element of the non-moving party’s case. Fed.R.Civ.P. 56(c). An issue of fact is
“genuine” if a reasonable person could return a verdict for the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). After the moving party has satisfied its burden, the
burden shifts to the non-moving party to set forth “specific facts showing that there is a genuine
issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When
no genuine issues of material fact exist, this Court reviews de novo the district court’s conclusions
of substantive law. Farhat, 370 F.3d at 588.
                                               Analysis
        Our limited task in this appeal is to determine whether the district court correctly resolved
the issue presented to it by the Sixth Circuit’s previous remand order: “the effect, if any, Widgren
has on Killian’s claim of qualified immunity on claims based on incidents alleged to have occurred
after Jacob’s October 1999 incarceration.” Jacob, 192 F. App’x at 335. For the reasons which
follow, we hold that the district court correctly determined that Widgren does not offer Defendant
a valid claim of qualified immunity.
        Resolving a claim of qualified immunity requires a two step inquiry, each step of which must
be conducted in the proper order. See Saucier v. Katz, 533 U.S. 194, 200 (2001). First, a court must
determine whether, if the facts alleged by the plaintiff are taken as true, a constitutional right was
violated. Id. Only after this first step has been resolved in favor of the plaintiff may a court consider
the second step of the qualified immunity analysis: “whether the right was clearly established” at
the time of the violation. Id.
        Turning to the first prong of this analysis, the Fourth Amendment provides a potent shield
against warrantless searches and seizures within the curtliage of a person’s home. See Knott v.
Sullivan, 418 F.3d 561, 573 (6th Cir. 2005) (citing United States v. Dunn, 480 U.S. 294, 300 (1987)).
“When determining whether an area is subject to Fourth Amendment protection by virtue of being
part of a home’s curtilage, the ultimate question we must resolve is whether the area harbors the
intimate activity associated with the sanctity of a man’s home and the privacies of life.” Id. (internal
quotation marks omitted). Our remand order already determined that Defendant intruded upon the
“intimate” areas surrounding Plaintiff’s home, however, and this determination is both law-of-the-
case and not before the Court again in this appeal. Jacob, 192 F. App’x at 335. Rather, the issue
in the instant appeal deals with the character of the intrusion upon Plaintiff’s property.
        The Fourth Amendment’s shield extends over government actions which intrude upon a
person’s “reasonable . . . expectation of privacy.” Dunn, 480 U.S. at 316. Because a criminal
investigation is viewed as among the most intrusive actions a government may take against an
individual, the Fourth Amendment accordingly offers a particularly strong shield against such
investigations. See Widgren, 429 F.3d at 583–84. Although the Fourth Amendment also provides
some protection against administrative or regulatory searches, such investigations are generally less
intrusive than one which could potentially lead to criminal sanctions, and are accordingly more
likely to be tolerated under the Fourth Amendment. See id.
        Widgren considered this distinction between criminal and merely administrative
investigations. In Widgren, officials of Maple Grove Township discovered that Kenneth Widgren
began construction of a house on his property, despite failing to obtain a building permit for the
No. 07-1534               Jacob v. Township of West Bloomfield, et al.                          Page 4


construction of the home. Id. at 578. Accordingly, a local tax assessor entered the curtilage of
Widgren’s home without a warrant, and for the sole purpose of observing the exterior of the house
to assess Widgren’s property tax liability. Id. At no point did Widgren face the threat of criminal
sanctions as a direct result of this assessment. The issue in Widgren was whether such a purely
administrative, warrantless search ran afoul of the Fourth Amendment. Although the Court felt that
Widgren presented a “difficult question,” id. at 581, we ultimately held that “under the facts of this
case,” a tax assessor does not violate the Fourth Amendment by observing the exterior of a house
for a purely “tax purpose.” Id. at 585.
        The instant case is distinguishable from Widgren, however, in that Defendant did not enter
Plaintiff’s property for a purely administrative purpose. See id. (“We also find it highly significant
that the purpose of government intrusion here was an administrative, not criminal, inspection.”).
Rather, Defendant’s warrantless search of Plaintiff’s property carried with it the very real threat of
criminal sanctions—a threat made real by the fact that Plaintiff had already been incarcerated for
thirty days as a result of Defendant’s intrusions upon his privacy. Jacob, 192 F. App’x at 332.
Moreover, as Defendant admits in deposition testimony, he conducted several warrantless searches
of Plaintiff’s property after he was “asked to do so” by the very same prosecutor who undertook the
proceedings that resulted in Plaintiff’s incarceration in the first place. (J.A. 211) Defendant was
a government official, acting at the directive of a criminal prosecutor, and investigating a matter
which had already led to Plaintiff’s incarceration; he was not conducting a merely administrative
search.
        Nevertheless, Defendant argues that his warrantless, criminal investigation did not invade
Plaintiff’s privacy because it was not as invasive as some searches of criminal suspects. In so
arguing, Defendant relies upon the following language from Widgren, which describes some of the
factors that often distinguish criminal and administrative investigations:
       [Administrative] matters may be looked into in a much shorter period of time than
       it often takes to search for evidence of crime, and certainly no rummaging through
       the private papers and effects of the householder is required. Nothing is seized. A
       police search for evidence brings with it “damage to reputation resulting from an
       overt manifestation of official suspicion of crime.” A routine inspection that is part
       of a periodic or area inspection plan does not single out any one person as the object
       of official suspicion. The search in a criminal investigation is made by armed
       officers, whose presence may lead to violence, and is perceived by the public as
       more offensive than that of the inspector. Police searches are conducted at all times
       of the day and night, while routine inspections are conducted during regular business
       hours. By their very nature and purpose, police searches usually must be conducted
       by surprise. In contrast, some inspection programs involve advance notice that the
       inspector will call on a certain date, and an inspector on his rounds will sometimes
       agree to return at a more convenient time if the householder so requests. This permits
       the owner or occupant to remove or conceal anything that might be embarrassing to
       him.
429 F.3d at 584. Essentially, Defendant argues that because Plaintiff’s home was searched by an
unarmed officer, who did not rifle through his private papers or otherwise conduct an involved
investigation, and because the warrantless searches of Plaintiff’s property were not conducted at
night, these searches are not governed by the Fourth Amendment.
        Defendant’s argument fails for two reasons. The first is that several of the distinguishing
factors described in Widgren point in favor of a holding that Defendant violated the Fourth
Amendment. Defendant specifically targeted his investigation at Plaintiff after receiving a
complaint about the conditions of Plaintiff’s property, and he continued to single-out Plaintiff for
No. 07-1534                Jacob v. Township of West Bloomfield, et al.                          Page 5


continuing intrusions as Plaintiff failed to comply with the land use ordinance. Defendant did not
search Plaintiff as part of a “routine inspection that is part of a periodic or area inspection plan.”
Id. Similarly, Plaintiff testified that he would frequently discover Defendant searching his property
without any advance warning whatsoever; in other words, Defendant’s investigations were
“conducted by surprise.” Id. Additionally, Plaintiff testified that he has suffered a loss of reputation
as a result of the criminal investigation of his land use, causing him to become “somewhat of a joke
in the neighborhood,” and leading Plaintiff to step down as a member of his neighborhood
association’s board. (J.A. 176)
        Moreover, even though some of the factors Widgren described as common to administrative
searches are also present in the instant case, the Fourth Amendment does not excuse an invasion of
privacy merely because the official conducting the search could have intruded even further upon an
individual’s privacy. In Knott v. Sullivan, for example, police briefly inspected a pile of ashes
located near Diane Knott’s home for evidence linking Knott’s son to a murder. 418 F.3d at 566.
We held that insofar as the ash pile was located within the curtilage of Knott’s home, police violated
the Fourth Amendment by entering the protected area surrounding Knott’s home to inspect the ash
pile without a warrant. Id. at 573. The facts that this invasion of privacy was brief, and that it
occurred in the middle of the day, did not excuse the police’s behavior. Id. at 565. Accordingly,
the mere fact that Plaintiff did not endure an even more intrusive search does not obviate the Fourth
Amendment’s requirement that, “absent exigent circumstances,” government officials may not
conduct a criminal investigation within the curtilage of a person’s home without a warrant. See
Dunn, 480 U.S. at 310–11.
        Having determined that Defendant’s criminal investigation of Plaintiff’s property violated
the Fourth Amendment’s warrant requirement, the only remaining question is whether or not this
rule was “clearly established” at the time of the violation. Saucier, 533 U.S. at 200. This second
prong of the qualified immunity test clearly weighs in Plaintiff’s favor. In a 1987 decision, the
Supreme Court held that “[n]o one would contend that, absent exigent circumstances, the police
could intrude upon a home without a warrant” to search for evidence of criminal activity. Dunn, 480
U.S. at 310. In 1997, this Court held that “the curtilage is considered part of the house itself for
Fourth Amendment purposes.” United States v. Jenkins, 124 F.3d 768, 772 (6th Cir. 1997) (citing
Oliver v. United States, 466 U.S. 170, 180 (1984)). Because the warrantless searches at issue in this
case began in 1999, there is no question that the Fourth Amendment’s protection of the intimate area
surrounding Plaintiff’s home was clearly established at the time of Defendant’s entry upon the
property.
        Indeed, the Supreme Court’s longstanding precedents show that it was clearly established
at the time of Defendant’s intrusion onto Plaintiff’s land that such a criminal investigation is
constrained by the Fourth Amendment’s warrant requirement. As the Court held in O’Connor v.
Ortega, 480 U.S. 709 (1987), the requirement that government officials must obtain a search warrant
before making an unwelcome intrusion on private property is the norm, limited only by certain
narrow exceptions. See id. at 720 (“[I]t is settled ... that ‘except in certain carefully defined classes
of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been
authorized by a valid search warrant.’” (quoting Mancusi v. DeForte, 392 U.S. 364, 370 (1968))).
Where exceptions do exist to this general rule, they exist “[o]nly in those exceptional circumstances
in which special needs, beyond the normal need for law enforcement, make the warrant and
probable-cause requirement impracticable.” Id. (quoting New Jersey v. T.L.O., 469 U.S. 325, 351
(1985) (Blackmun, J., concurring in the judgment)) (emphasis added).
        The search which took place in Widgren was “beyond the normal need for law enforcement”
because it was not a law enforcement search at all; the sole purpose of that search was to make a tax
assessment. See Widgren, 429 F.3d at 585. In the instant case, however, Defendant entered
Plaintiff’s property at the direction of a criminal prosecutor to search for evidence of a crime for
No. 07-1534               Jacob v. Township of West Bloomfield, et al.                         Page 6


which Plaintiff had already faced criminal sanctions. Moreover, while Defendant’s entry onto
Plaintiff’s land was certainly for a law enforcement purpose, Defendant claims no exigent
circumstances “beyond the normal need for law enforcement” justifying Defendant’s warrantless
intrusion upon Plaintiff’s property. Indeed, the only difference between Defendant’s inspections and
most routine criminal inspections is the fact that Defendant’s inspections were not conducted by a
law enforcement officer. Ultimately, however, this distinction matters little, as it is clearly
established that a government official does not have to carry a badge and gun to be subject to the
restrictions of the Fourth Amendment. See United States v. Rohrig, 98 F.3d 1506, 1512 (6th Cir.
1996) (“[T]here is no diminution in a person’s reasonable expectation of privacy nor in the
protection of the Fourth Amendment simply because the official conducting the search wears the
uniform of a firefighter rather than a policeman . . . .” (quoting Michigan v. Tyler, 436 U.S. 499, 506
(1978))).
        Having determined that Defendant’s intrusion upon Plaintiff’s property violated Plaintiff’s
clearly established rights under the Fourth Amendment, we agree with the district court that Widgren
provides Defendant with no valid claim of qualified immunity.
                                          CONCLUSION
        The district court correctly determined that Defendant was conducting a criminal—not a
purely administrative—investigation during his warrantless intrusions onto Plaintiff’s property.
Accordingly, Defendant is not entitled to qualified immunity in light of Widgren, and the decision
of the district court denying summary judgment to Defendant is AFFIRMED.
