                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 99-4292
JOHN C. BLEAVINS,
                                             Plaintiff-Appellee,
                              v.

JOEL H. BARTELS, ROGER BAY, and
VERNON MCGREGOR,
                                   Defendants-Appellants.
                        ____________
          Appeal from the United States District Court
               for the Central District of Illinois.
           No. 98-1236—Michael M. Mihm, Judge.
                        ____________
   ARGUED JANUARY 10, 2002—DECIDED APRIL 16, 2003
                   ____________


  Before HARLINGTON WOOD, JR., RIPPLE, and ROVNER,
Circuit Judges.
  HARLINGTON WOOD, JR., Circuit Judge. The Illinois De-
partment of Revenue determined that plaintiff-appellee
John Bleavins owed the state $11,415.70 in back taxes,
penalties, and interest. Bleavins failed to respond to a
notice and demand for payment; therefore, on May 2, 1995,
Joel Bartels, an employee of the Illinois Department of
Revenue, issued a seizure warrant pursuant to § 1109 of
the Illinois Income Tax Act, 35 ILL. COMP. STAT. 5/1109.
This administrative warrant was addressed to the “Coun-
ty Sheriff, Macon County” and directed the sheriff to “levy
on, seize and sell the taxpayer’s property, as shown on the
2                                                 No. 99-4292

attached sheet.” The attached sheet included a heading
with Bleavins’ name and social security number and read
as follows: “1-Pontoon Boat, 1-Speed Boat.”
   Before Bartels issued the warrant, Department of Re-
venue employee Roger Bay was sent out to Bleavins’ home
to determine whether there were assets available for
seizure. Bay did not enter Bleavins’ property, but sat
fifty to seventy yards away and used binoculars to inven-
tory the site. He observed a flatbed trailer, a utility trailer,
some tools related to Bleavins’ carpentry business, the
boats, and a pickup truck. Bay recorded license plate
numbers from the truck, the trailers, and the boats. Bay
then completed a “Checklist for Seizure” form which he
provided to Bartels, together with a sketch of Bleavins’
property showing the location of the items listed above
as well as permanent structures. On the checklist, Bay
recommended seizure of the pickup truck, the tools, the
pontoon boat, and the speed boat. Bay returned to the
site several days before the warrant was issued to make
sure that the property was still there.
  On May 2, Bartels and Bay, together with Vernon
McGregor, manager of the Field Compliance Division for
the Department of Revenue, met with Deputies Baum,
Terry, and Veach of the Macon County Sheriff’s Office. The
six men then proceeded to Bleavins’ home to execute the
warrant. They entered onto Bleavins’ property, and Dep-
uty Baum served the warrant on Bleavins, who voiced
strong objections to the seizure of his property. McGregor
determined that the men should not take the pontoon
boat or the speed boat because he believed that they
would not be able to take the boats without damaging
them. McGregor then asked the deputies to run a license
plate check on the flatbed and utility trailers which were
located near the boats. When the check revealed that the
trailers were registered to Bleavins, McGregor informed
Bleavins that the trailers would be seized in lieu of the
No. 99-4292                                              3

boats, despite the fact that McGregor knew that the trail-
ers were not listed on the seizure warrant. The trailers,
which were towed away, contained about fifty tools.
  An inventory of the trailers and their contents was
completed approximately six weeks after the seizure. On
the advice of the Macon County State’s Attorney, a new
seizure warrant was prepared on July 3, 1995. This war-
rant listed all of the property that had been seized on May
2. A copy of the July 3 warrant was served on Bleavins.
Meanwhile, on June 12, 1995, Bleavins filed suit in the
Circuit Court of Macon County, seeking the return of the
items that had been seized. On July 7, the court ordered
that all of the property be returned, and Bleavins con-
cedes that the items were returned to him in the same
condition as when they were taken.
  Bleavins then filed this civil rights suit in state court
in Macon County in March 1996, alleging a violation of his
rights under the Fourth and Fourteenth Amendments. The
suit named Bartels, Bay, McGregor, the three deputies,
and Lee Holsapple, the Macon County Sheriff, as defen-
dants. On April 26, 1996, the Department of Revenue
defendants filed a notice of removal pursuant to 28 U.S.C.
§ 1441(a). The case was removed to the United States
District Court for the Central District of Illinois. The
district court granted summary judgment in favor of
Bleavins on the liability issue and denied the defendants’
claims of qualified immunity.
  A two-day jury trial was held on the issue of damages,
following which the jury awarded Bleavins $1,000 in
damages. The Department of Revenue defendants filed
a notice of appeal on December 16, 1999. The County de-
fendants filed a notice of appeal on December 17, 1999.
Bleavins filed a notice of appeal as to the amount of dam-
ages on December 29, 1999. Both the County defendants
and Bleavins voluntarily dismissed their appeals pursu-
4                                                    No. 99-4292

ant to Fed. R. App. P. 42(b) after the parties agreed to a
settlement in conjunction with discussions held pursuant
to Cir. R. 33. This appeal, therefore, deals only with the
claims raised by the Department of Revenue defendants
(“appellants”). This panel issued its original opinion in
this case on March 15, 2001; however, that opinion was
withdrawn when we granted appellants’ petition for
rehearing. Following supplemental briefing, the case
was reheard by the original panel on January 10, 2002.


                           ANALYSIS
  Appellants contend the seizure of the trailers did not
violate Bleavins’ Fourth Amendment rights, and therefore,
the district court’s grant of summary judgment should
be reversed. Alternatively, they contend that, even if they
did violate Bleavins’ Fourth Amendment rights by seiz-
ing items within the curtilage of his home without a
valid Fourth Amendment warrant, they are nevertheless
entitled to qualified immunity. We review both issues
de novo. Myers v. Hasara, 226 F.3d 821, 825 (7th Cir. 2000).
  Bleavins does not contest appellants’ assertion that
the seized trailers were subject to a valid tax lien.1 Under
G.M. Leasing Corp. v. United States, 429 U.S. 338, 351-52
(1977), a tax seizure that does not involve an invasion of
privacy does not implicate Fourth Amendment concerns.
“[T]he Fourth Amendment protects two types of expecta-
tions, one involving searches, the other seizures. A search
occurs when an expectation of privacy that society is
prepared to consider reasonable is infringed. A seizure of
property occurs where there is some meaningful interfer-



1
   Under 35 ILL. COMP. STAT. 5/1101, a lien in favor of the State of
Illinois attaches to “all property and rights to property, whether
real or personal,” belonging to a delinquent taxpayer.
No. 99-4292                                                 5

ence with an individual’s possessory interests in that
property.” Soldal v. Cook County, 506 U.S. 56, 63 (1992)
(internal quotations and citations omitted). A judicial
warrant is not required under the Fourth Amendment for
seizure of property that is subject to a valid tax lien. G.M.
Leasing, 429 U.S. at 352. Therefore, the focus of our inquiry
is on the search aspect of the Fourth Amendment. We must
determine whether appellants, in seizing the trailers,
interfered with Bleavins’ legitimate privacy interests.
  In their supplemental brief on rehearing, appellants
acknowledge that the administrative warrant at issue in
this case does not, and was not intended to, meet the
requirements of the Fourth Amendment. In response
to questioning at oral argument, counsel for appellants
conceded that, if appellants entered into an area in which
Bleavins had a legitimate privacy interest, they would
have needed to obtain another warrant, issued by a neu-
tral and detached magistrate, to justify their entry. Clearly,
Bleavins has a legitimate privacy interest in his home
and in any of the surrounding area that would be consid-
ered curtilage. Siebert v. Severino, 256 F.3d 648, 653-54
(7th Cir. 2001) (“Both a home and the home’s curtilage . . .
are within the scope of the Fourth Amendment’s protec-
tion.”). Therefore, if the seized trailers were located with-
in the curtilage of Bleavins’ home, appellants’ warrantless
entry into the area would constitute a violation of Bleavins’
Fourth Amendment rights.2
  The curtilage analysis set out by the Supreme Court
in United States v. Dunn, 480 U.S. 294 (1987), is well
known. The central question in determining whether an



2
  Despite the administrative warrant, the entry was warrant-
less in the Fourth Amendment sense because appellants did not
possess a judicial warrant at the time they entered Bleavins’
property.
6                                               No. 99-4292

area can be considered curtilage is whether that area “is
so intimately tied to the home itself that it should be
placed under the home’s ‘umbrella’ of Fourth Amend-
ment protection.” Id. at 301.
    [C]urtilage questions should be resolved with particular
    reference to four factors: the proximity of the area
    claimed to be curtilage to the home, whether the area
    is included within an enclosure surrounding the home,
    the nature of the uses to which the area is put, and the
    steps taken by the resident to protect the area from
    observation by people passing by.
Id. These factors, however, do not constitute “a finely tuned
formula.” Id.
  However, even if it were to be determined that the sei-
zure occurred within the curtilage of Bleavins’ home,
appellants may nevertheless be entitled to qualified im-
munity. Qualified immunity shields government officials
performing discretionary functions from liability for civil
damages “as long as their actions could reasonably have
been thought consistent with the rights they are alleged
to have violated.” Anderson v. Creighton, 483 U.S. 635,
638 (1987). Qualified immunity is an issue which should
be resolved at the earliest possible stage in the litigation.
Saucier v. Katz, 533 U.S. 194, 201 (2001). The qualified
immunity analysis begins with a determination as to
whether the facts as alleged, viewed in the light most fa-
vorable to Bleavins, show a violation of a constitutional
right. Id. If so, the question then turns to whether the
right that was violated was clearly established. Id. at 200.
  Bleavins contends the trailers were within the curtilage
of his home when they were seized. Appellants argue that
the available evidence suggests that the trailers were
outside the curtilage of Bleavins’ home at the time of
their seizure. The district court did not make any finding
on the issue. The inquiry into whether an area can be
No. 99-4292                                                        7

considered curtilage is fact intensive. See United States
v. Breza, 308 F.3d 430, 435 (4th Cir. 2002).3 The record in
the present case, however, contains very little informa-
tion regarding the layout of Bleavins’ property. Plaintiff
offered as an exhibit a sketch of the property made by
Bleavins. The record also contained the sketch of Bleavins’
property prepared by appellant Bay. From these sketches
it appears that the trailers were located in an area of the
property behind the house and garage. It also looks like
the area is at least partially fenced in and enclosed by
shrubs. However, Bay testified in his deposition that he
was able to read the license plate numbers on the trail-
ers from across the street using binoculars. We find the
record as it currently stands factually inadequate to sup-
port a curtilage determination. Therefore, we remand
the case to the district court to consider whether the trail-
ers which were seized were located within the curtilage
of Bleavins’ home and, if they were, whether appellants
could have reasonably believed that the area was not
curtilage.
  The district court’s grant of summary judgment in fa-
vor of Bleavins is reversed. The case is remanded to the
district court for further proceeding consistent with this
opinion.
                                     REVERSED and REMANDED.




3
   The Breza court recognized that a dispute exists among the
circuits as to the proper standard for appellate review of a district
court’s curtilage determination. 308 F.3d at 435. The district
court in the present case did not reach the curtilage issue, so we
need not address this issue at this time.
8                                         No. 99-4292

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—4-16-03
