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Azevedo v. City of Fresno

June 7, 2010

LAWRENCE AZEVEDO, PLAINTIFF,
v.
CITY OF FRESNO, CITY OF FRESNO POLICE DEPARTMENT, OFFICER KARR, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT (Doc. Nos. 26, 32)

This case arises from the detention and arrest of Plaintiff Lawrence Azevedo by Fresno police officer Defendant Nathan Carr ("Carr") while Azevedo was staying at a residence on Weldon Avenue. Azevedo has brought suit under 42 U.S.C. § 1983 against Carr and the City of Fresno ("the City"). After dismissal of claims based on the Fourteenth Amendment, Azevedo alleges violations of his Fourth Amendment rights to be free from unreasonable searches and seizures, including excessive force. Azevedo also alleges Monell liability against the City. Both parties move for summary judgment on the issue of Carr's seizure of Azevedo, including Carr's entry into the Weldon residence's front yard. Additionally, Defendants move for summary judgment on Azevedo's Monell liability claims, while Azevedo moves for sanctions based on the City's alleged spoliation of evidence. For the reasons that follow, the Court will grant summary judgment in favor of Defendants on Azevedo's seizure entry and seizure claims, grant and deny summary judgment on various Monell issues, and grant Azevedo a permissive inference jury instruction based on spoliation of evidence by the City.

FACTUAL BACKGROUND*fn1

At approximately 2:00 a.m. on November 7, 2007, Carr was in a marked police car with his partner, Officer Juan Avila ("Avila"). See DUMF 12; PUMF 1. Both Carr and Avila were in uniform and identifiable as police officers. DUMF 35. The officers observed an illegally parked motorcycle in front of 2105 E. Weldon Avenue (hereinafter, "the Property"). See DUMF 12; PUMF 1. Carr declares he recognized the motorcycle from a prior contact on October 26, 2007. See PUMF 2; DUMF 12. He also recognized the helmet as looking the same as the one on the rider in the prior contact. DUMF 12.

Carr informed Avila that he had observed the same motorcycle approximately 12 days earlier in the vicinity, when he pulled behind it, ran the plates and noted the tags were expired by more than one year. DUMF 13. Specifically, on October 26, 2007, while assigned to uniformed patrol duties and driving a marked police vehicle, Carr pulled behind a motorcycle and ran the plates. DUMF 10. The tags were expired in excess of one year. Id. Carr intended to make a traffic stop due to the expired tags. Id. The motorcycle quickly stopped, pulling up on the sidewalk before Carr initiated the stop. Id. Carr was in uniform and immediately exited his vehicle and waved the rider over. Id. The rider looked at Carr and then sped off driving recklessly, jumping the curb, speeding, and failing to stop for stop signs. Id. Fresno Police Department Event Report 07BO520 details the October 26, 2007, event and lists the registered owner of the motorcycle as Alexander Renteria. DUMF 11.*fn2 However, Azevedo was not the driver of the motorcycle on October 26, 2007. See Footnote 2, supra .

Looking at the motorcycle and the helmet, Carr recalled that the registration was expired by over a year, and that the driver had evaded his original attempt to initiate a traffic stop. DUMF 14. The license plate of the motorcycle involved in the prior incident matched that of the one parked in front of the Property. DUMF 15. Officer Carr confirmed again that the registration had expired. DUMF 17. He examined the motorcycle and could not locate a VIN number. Id.;*fn3 see also PUMF 4. A tow truck was dispatched to impound the motorcycle since the tags were expired and the VIN could not be located. DUMF 17; see also PUMF 3. Regulations allowed Carr to impound the motorcycle without contacting the owner. PUMF 38.

Carr looked up prior attachments for the Property on the patrol car's computer before exiting the car. See PUMF 5. Carr reviewed an entry from October 9, 2007. PUMF 6. In the upper third portion of the entry it is noted that "resd is vacant." Fattahi Dec. Exh. H. In the officer's notes at the bottom of the entry, it was noted that: the Property was rented to a tenant named "Anita Bernal," it "appears that the resident has not been home," it "appears that the resident may be out of town or gone." See PUMF 7; Fattahi Dec. Exh. H. When asked about this entry, Carr testified that "that the owner of the house was reporting the residence was vacant and it appeared the homeowner had moved out." Carr Depo. 32:2-4. Avila testified that he recalled the entry as indicating that the Property was "possibly vacant." Avila Depo. 11:15-18.

The Property was surrounded by a waist high spiked, wrought iron fence. See PUMF 20; DUMF 26. The fence looks sturdy, but the iron bars appear to be thin and there are significant spaces/gaps between the bars; as such, the fence does not prevent people from seeing the Property and the front yard. See Carr Dec. Exh. D. The iron fence is a modest distance from the house. PUMF 21. The iron fence has two gates, one in front and one on the west side of the house ("west-gate"). See Carr Depo. 38:7-19. Both gates had locking mechanisms. See PUMF 24. The front gate is directly across from the house's front door, and there is a cement pathway that leads from the front gate to the front door. See Carr Dec. Exh. D. The west-gate opened to the backyard and led to the street and to a detached garage. See Carr Depo. 38:9-39:2; Avila Depo. 18:16-19:3. The owner of the Property, Jose Coria ("Coria"), had the iron fence installed for the safety of his family after a man tried to break in. See PUMF 23. Further, there was a wooden fence, which had a wooden gate, that separated the front yard from the backyard. See Carr Depo. 38:23-39:10; PUMF 32. The gate of the wood fence that separated the front yard from the back yard had a reflective sign on it that warned, "BEWARE OF DOG." PUMF 33. The mailbox was outside of the front fence. PUMF 22.

On November 7, 2007, the wood gate separating the front yard from the back yard was open, but the west-gate to the street was closed. PUMF 32.*fn4 There was "a lot" of dog waste everywhere outside the house, including the front yard. PUMF 31. The front iron gate was completely closed that night. PUMF 42. Azevedo always kept the gate locked by wrapping a tire chain around it so it could not be pried up.*fn5 PUMF 43. Carr and Avila testified that a metal chain, similar to a "bike chain," was wrapped or draped around the front gate to prevent the gate from swinging open. See Avila Depo. 21:21-22:14; Carr Depo. 45:17-47:15. Carr testified that the front gate's lock mechanism did not work. See Carr Depo. 46:22-47:2.

As Carr and Avila continued their investigation, they observed that the Property had overgrown vegetation*fn6 and appeared to be vacant. DUMF 21.*fn7 The house's front metal security screen door was wide open. Id. Although the wood front door appeared closed, PUMF 34, the officers also noticed that the front door appeared significantly damaged with a hole where the doorknob and lock set should have been. DUMF 21. There were newspaper and cloth/curtains covering some of the front windows. Id.; PUMF 35. Several other windows had no coverings. See Carr Depo. 35:21-22; Carr Dec. Exh. D. A low light could be seen through the paper and around the corners of the windows.*fn8 DUMF 21. At this point the officers were concerned that there was a possible burglary or unlawful trespass, in addition to the original concerns about the motorcycle, i.e. the motorcycle may have been stolen. See DUMF 24; PUMF's 39, 41, 70. Based on the previous incident with the motorcycle, the expired registration and the apparent lack of a VIN number, as well as the possibility of a burglary or squatting or unlawful trespass, the officers decided to make contact at the location, to attempt to find the owner of the motorcycle, and to investigate the security of the residence. See DUMF 23.*fn9

Carr and Avila decided to enter the property and then approach the front door. See PUMF 40. Carr never considered getting a warrant and did not attempt to contact Coria before entering.*fn10 PUMF's 44, 48. Carr removed the chain from the iron fence gate, and the officers went through the gate towards the front door. See PUMF's 50, 52. Removing the chain and opening the front gate was the only way to get into the front yard aside from attempting to hop the spiked fence. PUMF 51.*fn11 After entering the gate and upon approaching the front door, the officers noticed locking mechanism pieces, which appeared consistent with both the wood front door and metal screen door, laying on the porch and in the flower bed. DUMF 28.*fn12 Carr also noticed a glove next to the broken lock which is consistent with someone unlawfully entering a house. DUMF 29.*fn13 Neither Carr nor Avila announced their presence verbally before they reached the front door. PUMF 53.

At the porch, Carr looked through a hole in the wood front door into the living room. See PUMF 54. Avila was standing on the grass in front of the house, one foot east of the path leading to the porch stairs and front door. PUMF 59. In an attempt to investigate and make contact with whomever was in the residence, Carr knocked on the wood front door. See DUMF 30.*fn14 The wood front door immediately swung open since it was not secured, and Carr for the first time announced, "Fresno Police." See DUMF 30; PUMF's 55, 56; Carr Depo. 43:20-24.

Once the door opened, a large dog immediately began to growl and bark, and advanced on Avila in an aggressive and threatening manner. DUMF 31. See Carr drew his gun and backed up. PUMF 57. Avila back-peddled away from the dog. See PUMF 60. While Carr was yelling at the dog, Azevedo came outside the threshold of the front door, and Carr told him to get his dog. PUMF 61; see also DUMF 31. Azevedo called his dog, and it stopped in its tracks and turned, then Azevedo heard a gunshot. PUMF 62.*fn15 Avila fired a shot at the dog in response to the dog's aggression. See DUMF 31. The bullet impacted the step just below the porch in front of the threshold of the front door, and the dog was not injured. See DUMF 31; PUMF 64. Avila shot at Azevedo's dog while the dog was on the grass near the porch steps, and Azevedo was on the porch by the threshold of the front door. See PUMF 63; Carr Depo. 61:8-17. Azevedo then walked down and grabbed his dog. PUMF 65; DUMF 32. Carr told Azevedo to put the dog in the house and close the door. PUMF 66. Azevedo picked up the dog and took it inside the house. PUMF 67; DUMF 32. However, the door was still not secured. DUMF 32.*fn16

Because of their concerns about Azevedo's dog and their safety, the officers asked Azevedo to step outside the gate and ordered him to sit on the curb. See DUMF 33;*fn17 PUMF 68; Azevedo Depo. 81:22-25. Carr told Plaintiff twice to sit down on the sidewalk in front of the gate. PUMF 69. Requesting that Azevedo take a seat on the curb was consistent with taught and trained police practices, as a matter of Azevedo's safety and the safety of the officers. See DUMF 34. The officers believed that they had detained Azevedo and that he was not free to go about his business. See PUMF 71. Azevedo was being detained while the officers investigated a possible burglary, trespass, squatting, and stolen motorcycle. See DUMF 37; PUMF 70.

Azevedo did not sit at the curb very long before he attempted to flee by running down the street. See DUMF 36; PUMF 72; PAUMF 66. Carr told Azevedo to keep his hands visible. See DUMF 39.*fn18 Avila inquired whether Azevedo had any weapons in his possession, and Azevedo jumped up and ran. Id. Azevedo did not recall being asked questions by the officers.

See Azevedo Depo. 90:13-91:2.

While fleeing from the officers, Carr deployed his department issued taser on Azevedo, after which Azevedo was taken into custody. DUMF 41. It appears Azevedo was tasered while he was on cement or concrete. See Azevedo Depo. 95:1-4. Azevedo suffered multiple facial fractures and injuries, which required surgery the insertion of metal plates into his face.*fn19 See PAUMF's 76, 115, 116, 117. Carr testified that he deployed the Taser while running after Azevedo at full speed. See PAUMF 69. Carr had been gaining on Azevedo. See Ramirez Depo. at 27-28. Azevedo was neither assaultive nor combative, and Carr never saw anything that looked like a weapon in Azevedo's possession before deploying the taser. See PAUMF's 70, 71.

Both officers believed that they had probable cause to arrest Azevedo for violation of Penal Code § 148. DUMF 41. Part of the reason Azevedo ran from the officers was because he was in possession of methamphetamine. See DUMF 40. Azevedo had probably taken methamphetamine within 24 hours of his arrest. See DUMF 43; Azevedo Depo. 60:2-7. After placing Azevedo under arrest, Carr found drugs and drug paraphernalia. PAUMF 77; DUMF 44. Although Azevedo was arrested for violations of Penal Code § 148(a)(1), Health and Safety Code § 11377(a), and Business and Professions Code § 4140, see DUMF 45, no criminal charges were ever filed against Azevedo arising out of this event. See PAUMF 78.

On the night of November 7, Azevedo had been asleep in the front bedroom of the house with his dog. See PUMF 15; DUMF 1. Although he could not recall for how long, see DUMF 1, Azevedo had been staying at the Property for more than one day before November 7. See PUMF 14. Coria (the owner) rented the Property to Anita Abraham. See PUMF 12. Azevedo testified that Abraham asked him to stay at the Property and watch her belongings while she was incarcerated in the Fresno County Jail. See Azevedo Depo. 49:4-14; PUMF 13; DUMF 2. Coria had begun eviction proceedings against Abraham, but he did not know whether the eviction process had been completed as of November 7, 2007. See Coria Depo. 25:5-26:1. Azevedo testified that he would not leave the Property until either Abraham "got out of jail" or Coria "did it the legal way of evicting." Azevedo Depo. 54:6-8. Azevedo did not pay rent, did not receive mail at the Property, and Coria had told Azevedo to leave. See DUMF's 3, 4, 5. At the time of the incident, Azevedo's "more permanent" residence was a motor home that was parked in front of his friend's house. See DUMF 7; Azevedo Opp. Dec. ¶ 3. With the possible exception of some socks and a shirt, Azevedo's clothes were at his motor home and not at the Property. See DUMF 8; Azevedo Opp. Dec. ¶ 2. Aside from a motorcycle helmet, some socks, and a shirt, Azevedo cannot identify any items that belonged to him that were at the Property on the night of the incident. See DUMF 9; Azevedo Opp. Dec. ¶ 2.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire & Marine, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).

The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103.

I. DETENTION OF AZEVEDO

A. Azevedo's Standing

Plaintiff's Argument

Azevedo argues that he has standing to challenge the entry into the Property's curtilage. Azevedo was an overnight guest of the Property's renter, Abraham. That Coria was the landlord/renter does not matter, nor does it matter that Anita may have been behind in her rent. As an overnight guest of Abraham, Azevedo had a reasonable expectation of privacy in the Property, and thus has standing.

Defendants' Argument

Defendants argue that Azevedo had no legitimate expectation of privacy. Although Azevedo claims he was an overnight guest, he does not know how long he was there, did not pay rent, did not receive mail, lived in a motorhome, and had his clothes in the motorhome. Azevedo has no verification that he was authorized to stay at the house. His bald assertion that he was an overnight guest is insufficient to establish a legitimate expectation of privacy.

Legal Standard

A person who claims that a search violated the Fourth Amendment bears the burden of proving that the search was illegal and that the person had a legitimate expectation of privacy in the thing searched. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); United States v. $40,955.00 in U.S. Currency, 554 F.3d 752, 756 (9th Cir. 2009). The expectation of privacy must be actually/subjectively held and must be "one that society is prepared to recognize as reasonable." Smith v. Maryland, 442 U.S. 735, 740 (1979); $40,955.00, 554 F.3d at 756. A person's "status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable." Minnesota v. Olson, 495 U.S. 91, 96-97 (1990); see Espinosa v. City & County of San Francisco, 598 F.3d 528, 533 (9th Cir. 2010); United States v. Gamez-Orduno, 235 F.3d 453, 458 (9th Cir. 2000). However, a person's bald assertion, without more, that he is an overnight guest is insufficient to establish his actual status an overnight guest. See United States v. Reyes-Bosque, 596 F.3d 1017, 1026 (9th Cir. 2010); United States v. Armenta, 69 F.3d 304, 308 (9th Cir. 1995).

Discussion

The evidence presented is insufficient for the Court to decide as a matter of law whether Azevedo has standing to challenge the officers' entry into the Property's yard. Azevedo claims that he was the overnight guest of Abraham, who rented the Property. A person may be the guest of a lessee/renter and have a legitimate expectation of privacy as the lessee's/renter's guest. See Espinosa, 598 F.3d at 533; United States v. Washington, 573 F.3d 279, 284 (6th Cir. 2009). Azevedo had some socks, a shirt, a motorcycle helmet, and his dog at the house. Azevedo was also able to exclude the owner of the Property, Coria, from entering the yard and the Property. See Azevedo Depo. 53:7-19; PUMF 29.*fn20 Coria's testimony and Azevedo's testimony indicate that Azevedo had stayed in the house longer than a single night. Further, Azevedo was able to identify the person who gave him permission to stay at the house, the circumstances behind the permission, and the reason for his presence at the house. All of these facts tend to show that Azevedo had Abraham's permission to be an overnight guest in the house. However, the real force of Azevedo's arguments are based on his own testimony about Abraham's request or invitation. The Ninth Circuit has warned that bald assertions of permission do not establish one's status as an overnight guest. Defendants rely heavily on Armenta . However, this case is not quite like Armenta , because Azevedo, unlike the Armenta , was able to identify the person who gave consent for him to be an overnight guest (and there is no dispute that Anita was the leased/rented the Property),*fn21 explained the circumstances behind that consent, and also successfully excluded the owner of the property. Nevertheless, conspicuously absent from this case is any evidence from Abraham, who is asserted to be a friend of Azevedo's. Also absent is evidence of items that one would expect to find in the possession of an overnight guest, i.e. full change of clothes, toothbrush, etc.

Azevedo's argument on this point is close to amounting to little more than his own "bald assertion" of guest status. See Armenta, 69 F.3d at 308. Nevertheless, the Court believes that the evidence could support a finding that Azevedo was an overnight guest. Because a trier of fact could reasonably reach opposite conclusions regarding Azevedo's status, the Court denies summary judgment to both parties on the issue of Azevedo's standing.

B. Curtilage

Plaintiff's Argument

Azevedo argues that the fenced front area of the Property was protected curtilage pursuant to the factors set forth in United States v. Dunn, 480 U.S. 294, 302 (1987), and as applied in the case of Madruga v. County of Riverside, 431 F.Supp.2d 1049 (C.D. Cal. 2005). The front of the Property was completely enclosed by the highest fence that the local City ordinance allows, and the mailbox was on the outside of the fence. There was a "beware of dog" sign on the wood gate. The front of the iron fence was a modest distance from the house. The two gates of the iron fence were closed and "locked." The locking of the gate effectively extended the walls of the house. Therefore, the front of the Property was protected curtilage.

Defendants' Argument

Defendants argue that the front yard is not protected curtilage. The yard and porch are clearly visible to any passer-by. The iron fence is meant to be more decorative than to provide any privacy, and is only waist high. There are no signs stating "no trespassing," and the "beware of dog" sign is not on the iron fence, but instead is on the wood gate that separate the front and back yards. Finally, the manner in which the iron gate was secured is probative. A chain was looped around the fence. There was no locking mechanism on the chain, and the chain simply had to be lifted up. There was no reasonable expectation of privacy in the front yard.

Legal Standard

The Fourth Amendment protects both a home and the home's curtilage. See United States v. Dunn, 480 U.S. 294, 300 (1987); Oliver v. United States, 466 U.S. 170, 180 (1984); United States v. Warner, 843 F.2d 401, 405 (9th Cir. 1988). Curtilage is "the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life." Oliver, 466 U.S. at 180; United States v. Barajas-Avalos, 377 F.3d 1040, 1057 (9th Cir. 2004). The Supreme Court has explained that curtilage questions are to be resolved with particular reference to four factors: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by people passing by. Dunn, 480 U.S. at 301; United States v. Davis, 530 F.3d 1069, 1077-78 (9th Cir. 2008); United States v. Soliz, 129 F.3d 499, 502 (9th Cir. 1997). The "primary focus" and "central component of this inquiry is whether the area harbors the intimate activity associated with the sanctity of a man's home and the privacies of life." Dunn, 480 U.S. at 300, 301 n.4; United States v. Furrow, 229 F.3d 805, 817 (9th Cir. 2000); United States v. Traynor, 990 F.2d 1153, 1158 (9th Cir. 1993). "Every curtilage determination is distinctive and stands or falls on its own unique set of facts." United States v. Depew, 8 F.3d 1424, 1426 (9th Cir. 1993).*fn22

Discussion

The first Dunn factor is proximity of the disputed area to the home. The Court will view the disputed area as the front yard. "Proximity is not determinative as there is no fixed distance at which curtilage begins or ends." Soliz, 197 F.3d at 502. The parties have not given the Court any measurements of the land parcel, the front yard, or the distance of the home to the front of the fence. Nevertheless, photographs of the front of the Property reveal a typical urban lot that is not particularly large. Azevedo describes the distance from the house to the front of the fence as "modest." While hardly precise, describing the distance as "modest" is fair and indicates a distance that is close to the home. This factor weighs in favor of a finding of curtilage.

The third factor is the uses to which the front yard was put. No evidence has been presented about the uses of the front yard. The picture of the house and the front yard gives no hint as to any uses. The only function may be to simply separate the street from the front porch. There is an indication that Azevedo would let his dog roam the front yard at night in order for the dog to relieve itself.*fn23 The Court has reservations about whether Azevedo's use may be considered in determining whether the front yard is curtilage. Azevedo did not rent the Property, did not own the Property, and has attempted to characterize himself as an "overnight guest." In other words, Azevedo had no long term connection to the Property. As such, the relevant uses would appear to be those of Abraham, who actually rented and lived at 2105 E. Weldon, and under whose authority Azevedo claims to have standing. Nevertheless, this issue has not been briefed because the suggested use was not raised until Azevedo's reply brief. Assuming without deciding that the "overnight guest" Azevedo's use of the alleged curtilage has probative value, this use does not even involve a "private" activity by Azevedo, or any human for that matter. It is hardly a use associated with the "privacies of life," especially given the frequency with which people walk their dogs in public (be it parks or sidewalks) for this very purpose. See Soliz, 197 F.3d at 502-03. This factor weighs against a finding of curtilage.

The second Dunn factor is whether the front yard is surrounded by an enclosure that surrounds the home. Although not conclusive, "[f]encing configurations are important factors in defining the curtilage." Dunn, 480 U.S. at 301 n.4; Davis, 530 F.3d at 1078. Here, the front yard and the home are surrounded by the wrought iron fence. The presence of the iron fence is indicative of curtilage. However, courts have also observed that, generally "the enclosure factor weighs against those who claim infringement of the curtilage when their land is divided into separate parts by internal fencing." Bleavins v. Bartels, 422 F.3d 445, 452 (7th Cir. 2005); United States v. Reilly, 76 F.3d 1271, 1278 (2d Cir. 1996). The Property has more than one fence and there are separate demarcations on the property parcel. Specifically, there is also a wooden fence that separates the front and backyards. That fence is a six foot tall "standard fence," and it prevents people from "seeing over it." See Carr Depo. 39:1-10. It is significantly different from the iron fence in both height and design. Further, the "beware of dog" sign is on the wooden fence, to the side of the house -- it is not on the iron fence.*fn24 That the sign is on the wooden fence indicates that the dog in question is located behind the wooden fence, not inside the iron fence in the front yard. The wooden fence, as well as the "beware of dog" sign on that fence, indicate a separateness between the front and back yards and the house. This sense of separateness is further reinforced by the absence of evidence regarding use of the front yard. The iron fence weighs in favor of curtilage, but the presence of the wood fence, which creates additional demarcations by separating the front yard from the rest of the property, tempers this consideration and weighs against curtilage. See Bleavins, 422 F.3d at 452.

The final Dunn factor is the steps taken to protect the front yard from observation by passers by. The Court cannot see that any steps were taken to prevent the front yard from observation. As discussed above, there was a wrought iron fence. However, pictures of the Property show that the iron fence does nothing to prevent the front yard from observation. The iron bars are thin, the fence is not high (three and a half to four feet, perhaps), and there are significant gaps between each bar. The iron fence was erected by Coria, not to prevent others from observing the front yard or the activities occurring therein, but to act as a deterrent to, or provide safety from, burglars and thieves. See PUMF 23. There is no evidence that the iron fence was meant to prevent observation from passers by. In reply, Azevedo has indicated that City ordinances prevent fences from being more than 4' tall. Be that as it may, the purpose of the fence was never to obscure observation. Further, a fence is not the only method of preventing observation. Physical boundaries, such as thick trees, shrubberies, or underbrush may effectively block visibility and prevent observation. See United States v. Johnson, 256 F.3d 895, 903 (9th Cir. 2001). However, there are no trees, bushes, or other natural barriers in the front yard that materially obscure observation. There is simply no evidence that steps were taken to protect the front yard from observation. This factor weighs against a finding of curtilage.

The primary focus in determining curtilage is whether the area "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life." Dunn, 480 U.S. at 300, 301 n.4. The Court sees no evidence of any intimate or private activity in the front yard that is associated with either the home or one's private life. Application of the Dunn factors reveal that the front yard is essentially open to public view, no evidence of any use has been presented, and there are additional demarcations within the wrought iron fence. The evidence simply indicates an enclosed piece of land that is close to the house. Cf. Cowart v. Enrique, 311 Fed. Appx. 210, 213-214 (11th Cir. 2009) (applying Dunn factors to conclude that a front yard was not curtilage despite the fact that the front yard was enclosed by a fence). When an area is open to view and there is no indication of it being used by the resident, it is unclear how that area can be said to harbor private or intimate activity.

Azevedo relies heavily on a case from the Central District of California, Madruga . The yard in Madruga had the following characteristics: it was immediately adjacent to the home, it was surrounded by a 5' 4" tall solid wall that shielded the home from public view, a "warning -- guard dog" sign was posted on the wall very close to the entrance foot gate, there were two 5' tall wooden gates that were shut, and the yard "was used for activities intimately associated with those that take place inside the house itself such as barbecues, parties, or as an area of quiet contemplation." Madruga, 431 F.Supp.2d at 1056. These characteristics are materially different from the Property's front yard. The "beware of dog" sign in this case was not on the iron fence, rather it was on the wooden fence that separated the front and backyards. The Madruga fence was solid, tall, and could certainly keep out prying eyes. The iron fence in this case, however, was much shorter, not solid, and does nothing to prevent observation. The yard in Madruga was used for barbecues, parties, and quiet contemplation. No use has been adequately identified in this case, and the suggested use is neither private nor comparable to barbecues, parties, and quiet contemplation. The Court readily agrees that the yard in Madruga was protected curtilage. However, "[e]very curtilage determination is distinctive and stands or falls on its own unique set of facts." Depew, 8 F.3d at 1426. The facts in this case are distinguishable from Madruga , and those facts do not show that the front yard "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life." Dunn, 480 U.S. at 300, 301 n.4.

The evidence and arguments do not show that the front yard is protected under the Fourth Amendment as curtilage. Summary judgment in favor Defendants for the ...


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