Baldi v. Amadon, et al. CV-02-313-M 04/05/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John A. Baldi, Plaintiff

v. Civil No. 02-313-M Opinion No.

Roger W. Amadon, Henry Farrin, Frank Cassidy, Eric Bourn, James MacKenzie, Paul Pearson, John Hickey, Peter Bosiak, and Laurance Yeaton, Defendants

O R D E R

Nine counts asserted against various combinations of

defendants remain in this case. Before the court is James

MacKenzie's Motion for Summary Judgment on the only remaining

counts against him: Count VIII (asserting a Fourth Amendment

violation). Count XVII (asserting a conspiracy to violate N.H.

Re v . Stat . A n n . § 570-A:2), Count XXI (asserting a conspiracy to

invade his privacy) , and Count XXV (asserting negligence for

defendant's failure to tag a deer in plaintiff's yard).

Plaintiff objects. For the reasons given below, MacKenzie's

motion is granted. Summary Judgment Standard

Summary judgment is appropriate when the record reveals "no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law." F e d . R. C i v . P.

56(c). "A 'genuine' issue is one that could be resolved in favor

of either party, and a 'material fact' is one that has the

potential of affecting the outcome of the case." Calero-Cerezo

v. U.S. Dep't of Justice,

(1st Cir. 2004) (citing

Anderson v. Liberty Lobby, Inc.,

(1986)).

"The role of summary judgment is to pierce the boilerplate of the

pleadings and provide a means for prompt disposition of cases in

which no trial-worthy issue exists." Quinn v. City of Boston,

(1st Cir. 2003) (citing Suarez v. Pueblo Int'l,

Inc.,

(1st Cir. 2000)).

"Once the movant has served a properly supported motion

asserting entitlement to summary judgment, the burden is on the

nonmoving party to present evidence showing the existence of a

trialworthy issue." Gulf Coast Bank & Trust Co. v. Reder,

(1st Cir. 2004) (citing Anderson,

;

Garside v. Osco Drug, Inc.,

(1st Cir. 1990)). To

2 meet that burden, the nonmoving party may not rely on "bare

allegations in [his or her] unsworn pleadings or in a lawyer's

brief."

(citing Rogan v. City of Boston,

(1st Cir. 2001); Maldonado-Denis v. Castillo-Rodriguez,

(1st Cir. 1994)). When ruling on a party's motion for

summary judgment, the court must view the facts in the light most

favorable to the nonmoving party and draw all reasonable

inferences in that party's favor. See Lee-Crespo v. Schering-

Plough Del Caribe Inc.,

(1st Cir. 2003) (citing

Rivera v. P.R. Agueduct & Sewers Auth.,

, 185 (1st

Cir. 2003) ) .

Background

The general factual background of this case has been set out

in considerable detail in an order dated June 9, 2003 (document

no. 63), and is not repeated here. The specific factual

background relevant to Count VIII, viewed in the light most

favorable to plaintiff, is as follows.

3 James MacKenzie is a conservation officer employed by the

New Hampshire Department of Fish and Game. On four occasions,1

he conducted nighttime surveillance of plaintiff's property, from

a vantage point on a neighbor's land.2 (Def.'s Mot. Summ. J.,

Ex. A (MacKenzie Aff.) 55 6-7.) According to MacKenzie, his

vantage point was approximately 150 yards from Baldi's house.

(MacKenzie Aff. 5 7.) On July 4, 1999, MacKenzie used a night

scope to observe Baldi's open fields. (MacKenzie Aff. 55 10-11.)

While scanning Baldi's fields, he also looked at Baldi's house.

(MacKenzie Aff. 55 11-12.) MacKenzie "do[es] not recall seeing

anything looking at the house that [he] would not have seen

without the night scope" (MacKenzie Aff. 5 11), and he "recall [s]

that on July 4, 1999 the house was dark and it appeared that

1 November 24, 1993, November 6 and 7, 1998, and July 4, 1999. (Def.'s Mot. Summ. J., Ex. D.)

2 Baldi contends that MacKenzie "must" have conducted his surveillance from a point on his property because MacKenzie could not have seen into his residence from the spot marked on defendant's Exhibit C, which MacKenzie claims to have been his vantage point. However, the physical impossibility of seeing into Baldi's residence from the spot marked on defendant's exhibit, even if proven, does not, as a logical matter, place MacKenzie on Baldi's property unless it is impossible to see Baldi's residence from any location outside his property, an assertion Baldi has neither made nor supported with evidence. In other words, the alleged inconsistency Baldi identifies does not concern a material fact.

4 there was no one at home" (MacKenzie Aff. 5 12). MacKenzie's

daily calendar for July 4, 1999, contains the following relevant

entries:

met w/250 on Baldi - shooting deer - Gave him Paperwork

- worked Baldi w/253 at Night

[REDACTED]

- Picked up Nightscope Region III

(Def.'s Mot. Summ. J., Ex. D.) MacKenzie's calendar entries do

not indicate what MacKenzie saw through the night scope on July

In an attempt to avoid summary judgment, Baldi has

testified, by affidavit, as follows:

The affidavit of defendant MacKenzie, submitted with his motion for summary judgment, is not truthful. The distance from my family residence to where his X is on exhibit C is a minimum of 300 yards as shown on the United States Geological Survey Map of 1998. Furthermore, it is not physically possible for a person standing on the ground to see the Baldi family home or either of the two hay fields owned by the Baldi's, from the location marked with an X by MacKenzie. The Baldi property all slopes to the west, the field MacKenzie was in slopes to the east (very slightly) and the cresting point is in the middle on the property then owned by Raymond Dow and his wife. In addition, the

5 Barn of the Dow's and the grove of thickly planted spruce trees at the top of the steep slope coming up from their farm pond, extends the full width of their property. These trees are approximately 25-30 feet tall, heavily branched all the way to the ground, and planted so closely together that if one were standing on one side of the grove he could not see through it to view anything on the other side of the grove. Also, the angle of the Baldi home as shown on the USGS map, depicts that MacKenzie could not have seen into the back of the structure where the one room used by the plaintiff is located, unless he was on Baldi property. He has confirmed in his daily report that the Plaintiff was home, it was late at night and Mr. Baldi was in bed, so he had to be looking through the window of the Plaintiff's room with the night-vision goggle he admits to have been using.

(Pl.'s Obj. to Summ. J., Ex. 11 (Baldi Aff.) 5 8.)

Discussion

MacKenzie moves for summary judgment on Count VIII on

grounds that: (1) the statute of limitations has run on all but

the July 4, 1999, surveillance episode; (2) he never entered

Baldi's residence or curtilage or observed those areas from an

unprivileged vantage point; and (3) his use of a night scope did

not transform his surveillance into an unreasonable search.

Plaintiff counters that MacKenzie must have had a vantage point

different from the one marked on Exhibit C of his Motion for

Summary Judgment because: (1) his residence is 300 yards from

6 that point, rather than 150, and not visible from the point

marked on Exhibit C; and (2) it is impossible to look into the

back room of his residence from any vantage point not located on

his property. Plaintiff also appears to argue that the mere fact

that MacKenzie looked at his residence with a night scope3 is

sufficient to establish a Fourth Amendment violation. He is

mistaken.

3 At some points, plaintiff seems to claim that MacKenzie violated his Fourth Amendment rights by looking into his residence, with night vision eguipment, to determine that he was home on the evening of July 4, 1999, while at other points, he appears to assert that MacKenzie invaded his curtilage, and thus violated his Fourth Amendment rights, merely by looking at his house with night vision eguipment. Plaintiff's claim that MacKenzie looked into his residence rests upon an assertion that MacKenzie's own reports "state that Baldi was home," (Pl.'s Obj. to Def.'s Mot. Summ. J., 5 2), and an argument that MacKenzie could not have known that he was home without seeing him, asleep, inside his house. However, Baldi has not submitted a copy of the report in which MacKenzie is purported to have stated that Baldi was at home; the calendar sheets submitted by MacKenzie contain no such statement; and in his affidavit, MacKenzie testified that "on July 4, 1999 the house was dark and it appeared that there was no one at home." (MacKenzie Aff. 5 12 (emphasis added).) Thus, the record contains no evidence from which a reasonable jury could conclude that MacKenzie ever looked into Baldi's residence. Accordingly, Baldi's Fourth Amendment claim is limited to an assertion that MacKenzie violated his constitutional rights by looking at the outside of his residence with a night scope.

7 Plaintiff's Fourth Amendment claim rests, to a substantial

degree, on the Supreme Court's decision in Kyllo v. United

States,

(2001). In that case, the Court held that

"obtaining by sense-enhancing technology any information

regarding the interior of the home that could not otherwise have

been obtained without physical 'intrusion into a constitutionally

protected area' constitutes a search - at least where (as here)

the technology in guestion is not in general public use."

(emphasis added) (guoting Silverman v. United States,

(1961) ) .

_____ Kyllo was a criminal case in which a government agent

scanned a suspect's home with a thermal imager and discovered

"that the roof over the garage and a side wall of [the suspect's]

home were relatively hot compared to the rest of the home and

substantially warmer than neighboring homes in the triplex."

Kyllo,

. Based upon those thermal anomalies, the

agent "concluded that [the suspect] was using halide lights to

grow marijuana in his house."

Relying in part upon the data

from the thermal scanning, the agent got a search warrant,

searched the suspect's home, and discovered a large indoor marijuana growing operation.

Before trial, the defendant

moved, unsuccessfully, to suppress the evidence seized from his

home.

Ultimately, the Supreme Court sided with the

defendant, ruling that use of the thermal imager was an

unreasonable search because it revealed information about the

interior of the home that could not have been obtained otherwise.

.

Here, plaintiff's Fourth Amendment claim is limited to

MacKenzie's viewing of the exterior of Baldi's residence with a

night scope; Baldi has failed to produce any evidence from which

a jury could conclude that MacKenzie ever looked inside the

residence. Moreover, unlike the suspect in Kyllo, Baldi has

produced no evidence from which a jury could conclude that: (1)

MacKenzie obtained any information regarding the interior of his

home by using the night scope; or (2) that it is even possible to

obtain information about the interior of a building by viewing

its exterior through a night scope; or (3) that using the night

scope allowed MacKenzie to see something inside that he could not

have seen simply by looking from a point that did not involve a

physical intrusion into a constitutionally protected area. According to MacKenzie's unchallenged affidavit testimony,

the night scope he used amplifies ambient light but "would not

assist in any way in seeing the interior of a lighted building."

(MacKenzie Aff. 5 11.) Thus, MacKenzie's night scope is

fundamentally different from the thermal imager in Kyllo, which

did not amplify light available outside a building, but, rather,

detected heat generated inside a building.

;

see also People v. Deutsch,

, 367 n.l (Cal.

C t . A p p . 1996) (citation omitted) ("The thermal imager differs

from infrared devices (such as night vision goggles) in that the

latter amplify the infrared spectrum of light whereas the thermal

imager registers solely that portion of the infrared spectrum

which we call heat."). In other words, the undisputed factual

record demonstrates that the night scope MacKenzie used did

nothing more than allow him to see, at night, what he would have

been able to see, without any technological assistance, in the

daylight. Moreover, while Baldi relies heavily on Kyllo, a

thermal imager case, he has cited no case in which a court has

held that surveillance with a night scope constitutes a Fourth

Amendment search.

10 Because MacKenzie did not look at Baldi's house with a

device that was capable of providing him with "information

regarding the interior of the home that could not otherwise have

been obtained without physical 'intrusion into a constitutionally

protected area,'" Kyllo,

, MacKenzie's surveillance

did not constitute a search for Fourth Amendment purposes. In

the absence of a search, MacKenzie is entitled to judgment as a

matter of law on Count VIII. Furthermore, because Count VIII is

the only remaining federal claim against MacKenzie, the court

declines to exercise supplemental jurisdiction over Counts XVII,

XXI, and XXV, which assert state-law claims. See Camelio v. Am.

Fed' n ,

(1st Cir. 1998) .

Conclusion

For the reasons given above, MacKenzie's motion for summary

judgment (document no. 74) is granted. Accordingly, the case

will proceed on Counts I, III, VIII (against defendants Amadon,

Farrin, Cassidy, Bourn, and Pearson only), XV, XVI, XVII (against

defendants Farrin, Cassidy, Bourn, Hickey, Bosiak, and Yeaton

only), XVIII, and XXI (against Farrin and Cassidy only).

11 SO ORDERED.

Steven J. McAuliffe United States District Judge

April 5, 2004

cc: John A. Baldi Edward J. Barshak Donald E. Gardner, Esq. Paul A. Maggiotto, Esq. Nancy J. Smith, Esq.

12