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 November 2, 2000--DECIDED MARCH 15,
2001



  Before HARLINGTON WOOD, JR., RIPPLE, and
ROVNER, Circuit Judges.

  HARLINGTON WOOD, JR., Circuit Judge. The
Illinois Department 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 section 1109 of the
Illinois Income Tax Act, 35 Ill. Comp.
Stat. 5/1109. The warrant was addressed to
the "County Sheriff, Macon County" and
directed the sheriff to "levy on, seize
and sell the taxpayer’s property, as
shown on the 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 Revenue 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
inventory 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 a
couple 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.
Deputy Baum served the warrant on
Bleavins, who voiced strong objections to
the seizure of his property. McGregor
determined that the men would 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 boats, despite the
fact that McGregor knew that the trailers
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 warrant 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
concedes 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
defendants. On April 26, 1996, the
Department of Revenue defendants filed a
notice of removal pursuant to 28 U.S.C.
sec. 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 defendants filed a
notice of appeal on December 17, 1999.
Bleavins filed a notice of appeal as to
the amount of damages on December 29,
1999. Both the County defendants and
Bleavins voluntarily dismissed their
appeals pursuant 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.

ANALYSIS

  Appellants contend that, because they
were on Bleavins’ land lawfully pursuant
to a warrant that was valid under the
Fourth Amendment, the seizure of the
trailers was justified under the plain
view doctrine, and the district court
erred in granting judgment in favor of
Bleavins as to liability. Alternatively,
appellants assert that should we find
that the plain view doctrine does not
apply, they should be entitled to
qualified immunity based on the fact that
no clearly-established law would have
informed them that the plain view
doctrine was inapplicable in civil cases.
We review de novo. Myers v. Hasara, 226
F.3d 821, 825 (7th Cir. 2000).


  A.   The Plain View Doctrine

  Under the plain view doctrine as applied
in the criminal context, "if police are
lawfully in a position from which they
view an object, if its incriminating
character is immediately apparent, and if
the officers have a lawful right of
access to the object, they may seize it
without a warrant." Minnesota v.
Dickerson, 508 U.S. 366, 375 (1993).
Despite the express language requiring
that an object’s "incriminating
character" be "immediately apparent,"
appellants contend that the plain view
doctrine is not limited to the seizure of
criminal evidence or contraband. Instead,
appellants argue that if a revenue agent
who is lawfully on a taxpayer’s property
observes an item in plain view, has
lawful access to that item, and has
probable cause to believe that the item
is subject to levy, the plain view
doctrine will justify the seizure of that
item without a warrant.

  Bleavins does not contest appellants’
assertion that the trailers were subject
to a valid tax lien. If a delinquent
taxpayer fails to respond to the
Department of Revenue’s notice and demand
within ten days,

the Department may issue a warrant
directed to any sheriff or other person
authorized to serve process, commanding
the sheriff or other person to levy upon
the property and rights to property
(whether real or personal, tangible or
intangible) of the taxpayer, without
exemption, found within his jurisdiction,
for the payment of the amount thereof
with the added penalties, interest and
the cost of executing the warrant.

35 Ill. Comp. Stat. 5/1109. In response to
questioning at oral argument, counsel for
appellants stated that there was no
limitation under Illinois law as to what
property can be seized, and we find none
in our independent research. Therefore,
were we to adopt the approach urged by
appellants, once revenue agents entered a
taxpayer’s property pursuant to a valid
warrant to seize specific items, they
could instead seize any property in plain
view that they had reason to believe
belonged to the taxpayer.

  This argument must fail, as it would be
left entirely to the discretion of the
officials executing the warrant to decide
which of the items likely belonging to
the taxpayer to seize. See Lo-Ji Sales v.
New York, 442 U.S. 319, 325 (1979). "The
requirement that search warrants
particularly describe the things to be
seized is a bedrock of Fourth Amendment
jurisprudence." Supreme Video, Inc. v.
Schauz, 15 F.3d 1435, 1439 (7th Cir.
1994)./1 The particularity requirement
"makes general searches under [a warrant]
impossible and prevents the seizure of
one thing under a warrant describing
another." Marron v. United States, 275
U.S. 192, 196 (1927).

  Appellants do not argue that the
trailers fall within the scope of the
warrant, even if the warrant were to be
liberally construed, nor could they,
given the clear directive to seize a
pontoon boat and a speed boat. See Hessel
v. O’Hearn, 977 F.2d 299, 302 (7th Cir.
1992). Instead, appellants attempt to
justify their choice to substitute the
trailers for the boats with the assertion
that the boats could not have been seized
without being damaged. Despite these good
intentions, we must conclude that this is
a case in which the executing officers
exhibited flagrant disregard for the
terms of the seizure warrant. "Flagrant
disregard for the terms of [a] warrant
transforms it into a general warrant,
which the Fourth Amendment forbids." Id.

  The plain view doctrine is a narrow
exception to the protections of the
Fourth Amendment./2 The plain view
doctrine "allows officers executing a
valid search warrant to seize contraband
or incriminating evidence that they see
in the course of their search even though
the items in question were not named in
the warrant." Hessel, 977 F.2d at 302
(citing United States v. Jefferson, 714
F.2d 689, 694 (7th Cir. 1983))./3
Bleavins does not contest appellants’
claim that they were lawfully on his
property pursuant to a valid warrant.
However, as the Supreme Court has noted,
"the plain-view cases clearly state that,
notwithstanding the absence of any
interference with privacy, seizures of
effects that are not authorized by a
warrant are reasonable only because there
is probable cause to associate the
property with criminal activity." Soldal
v. Cook County, 506 U.S. 56, 69 (1992).
The Supreme Court has recognized that
plain-view "seizures must satisfy the
Fourth Amendment and will be deemed
reasonable only if the item’s
incriminating character is ’immediately apparent.’"
Id. (citing Horton v. California, 496
U.S. 128, 136-37 (1990)). Appellants
concede that the trailers in question
were not incriminating in nature or in
any way associated with criminal
activity. Therefore, the plain view
doctrine cannot justify the seizure.


  B.   Qualified Immunity

  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). In determining
whether qualified immunity applies, we
must consider "’(1) whether the plaintiff
has asserted a violation of a federal
constitutional right, and (2) whether the
constitutional standards implicated were
clearly established at the time in question.’"
Spiegel v. Cortese, 196 F.3d 717, 723
(7th Cir. 1999), cert. denied, 120 S. Ct.
2688 (2000) (quoting Eversole v. Steele,
59 F.3d 710, 717 (7th Cir. 1995)).
Although qualified immunity is a defense,
the plaintiff bears the burden of showing
that these two elements are met. Id.

  As previously discussed, Bleavins has
established a violation of his rights
under the Fourth Amendment. Furthermore,
the express terms of the plain view
doctrine as set out by the Supreme Court
as well as interpretations of the
doctrine by this court make it clear that
an essential element of the doctrine is
the incriminating nature of the objects
in question. Because all of the cases
cited in our discussion of Bleavins’
Fourth Amendment rights were in place on
May 2, 1995, we find that the standards
implicated were clearly established at
the time of the unlawful seizure.
Appellants are not entitled to qualified
immunity.

  The decision of the district court is
AFFIRMED.



/1 Appellants do not attempt to justify the seizure
of the trailers based on the July 3 warrant. It
is clear that the Fourth Amendment does not
"countenance open-ended warrants, to be completed
while a search is being conducted and items
seized or after the seizure has been carried
out." Lo-Ji Sales, 442 U.S. at 325.

/2 Fourth Amendment protection extends to the
seizure of property in furtherance of tax law
enforcement when the property in question is
situated on private premises. G. M. Leasing Corp.
v. United States, 429 U.S. 338, 354-59 (1977).

/3 This court expressly stated in Hessel that the
plain view "doctrine leaves unsolved the problem
of items seen during the search but not
incriminating on their face." Hessel, 977 F.2d at
302. The Hessel panel upheld the seizure of items
that were not incriminating on their face based
on the fact that the items were covered under a
reasonable construction of the warrant at issue.
Appellants do not argue that the trailers were
covered under the May 2 warrant.
