"Open Fields" Leads To Conviction

To paraphrase dramatist William Congreve, hell hath no fury as a consultant scorned.

Indeed, a spurned consultant can end up cozying up with one's adversary. Take the case of John Rapanos, a Michigan businessman whose conviction for illegally filling wetlands was upheld by a federal appeals court (U.S. v. Rapanos, No. 95-2169, 6th Circ., May 28, 1997).

Rapanos owns a 175-acre tract that he wanted to sell for development as a shopping mall. He spent more than $300,000 to clear trees and shrubs from the property and to fill in wetlands.

Rapanos' attorney submitted a development plan and a property survey to the Michigan Department of Natural Resources (DNR). The DNR responded by notifying Rapanos that the property appeared to contain wetlands and, if so, he would need a permit before development could begin.

When two DNR officials showed up at the site, Rapanos and his attorney toured the property with them. After finding some wetlands on the property, the inspectors told Rapanos that he would need a permit, but that he first must submit a map showing the boundaries of wetland areas. Rapanos hired wetlands expert Glenn Goff to prepare the wetlands map, telling him to "get [the DNR] off my back." Goff spent several weeks gathering soil and plant samples and other information for the map.

When Goff reported his preliminary finding that the property contained nearly 50 acres of wetlands, Rapanos fired him and allegedly ordered him to destroy his study materials and preliminary report. Goff later testified that Rapanos became enraged and exclaimed that "he'd destroy all those [expletive deleted] wetlands." When DNR saw that Rapanos ignored official orders to stop grading and filling activities on the site, the agency decided to meet with him.

At the first meeting, five DNR officials met the defendant at the boundary of his property, hoping to find out enough about the site to determine how much of it could be classified as wetlands and how much unauthorized filling had occurred. However, the meeting ended when Rapanos refused to allow the DNR officials onto the property without a search warrant. A second meeting occurred about a week later at Rapanos' office, and he again denied official access to the site.

A few months later, a federal grand jury charged Rapanos with knowingly discharging pollutants into wetlands. At trial, both sides questioned witnesses during the government's case-in-chief about the defendant's refusal to allow the DNR officials onto his property without a search warrant. After three weeks of testimony, including detailed evidence about the nature of wetlands and the activities on the property, the jury found Rapanos guilty of wetlands degradation.

The district court judge, however, set aside the verdict and awarded the defendant a new trial. Judge Lawrence Zatkoff concluded that the jury may have been improperly influenced by the government's cross-examination of Rapanos, specifically the questions about whether the defendant was "practicing concealment" by refusing to consent to warrantless searches on his property by DNR officials.

On appeal by the government, the U.S. Court of Appeals for the Sixth Circuit reversed the district court's ruling, reinstated the jury's verdict, and sent the case back to the district court for sentencing.

The appeals court ruled that, under the "open fields" doctrine, Rapanos had no constitutional right to prevent DNR representatives from coming onto his property for an inspection. Thus, "the entire premise for the district court's .... ruling is flawed," the opinion said.

The "open fields" doctrine stems from a U.S. Supreme Court ruling that the Fourth Amendment refers only to "persons, houses, papers and effects." The high court has determined that society does not recognize an individual's subjective expectation of privacy in an open area. Moreover, the Supreme Court has made clear that trial courts should avoid a case-by-case approach in deciding if an individual has a reasonable expectation of privacy in particular open areas.

Thus, the existence of fences, locked gates and "No Trespassing" signs has no constitutional significance, the appeals court said. Nor does a landowner's presence at the time of a search or attempted search create a legitimate expectation of privacy, the court added.

"If a person [has no] reasonable expectation of privacy," the court said, "then the government's search of his property simply does not implicate the Fourth Amendment." As the DNR officials intended to do no more than visually inspect the Rapanos property, their warrantless entry onto open fields was not an unconstitutional search.

Keeping the inspectors off his property amounted to "no more than a protest against a common law trespass," the opinion said.

The U.S. Supreme Court recently announced that it will not be reviewing this ruling.