Roland Johnson v. Manitowoc County

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2409
ROLAND JOHNSON,
Plaintiff-Appellant,
v.
MANITOWOC COUNTY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 1:09-cv-00248—Rudolph T. Randa, Judge.
ARGUED DECEMBER 3, 2010—DECIDED MARCH 10, 2011
Before FLAUM, ROVNER, and EVANS, Circuit Judges.
EVANS, Circuit Judge. A landlord is lucky when he
rents a dwelling he owns to a tenant who turns out to
be pretty good. When he rents to a tenant who turns out
to be fairly bad, he’s unlucky. And then there’s a land-
lord like Roland Johnson who goes far beyond being
merely unlucky. Johnson picked a doozy of a tenant—he
rented to a fellow named Steven Avery. Mr. Avery, as
most anyone who lives in Wisconsin knows, was the
focus of intense media coverage beginning in 2003. It

-- 1 of 11 --

2 No. 10-2409
Avery’s nephew, Brendan Dassey, was also charged. 1
Avery was acquitted on the corpse mutilation charge. 2
Sheriff Jerry Pagel, and Sheriff’s Deputies William Tyson, 3
Mark Wiegert, Wendy Baldwin, and John Dedering.
was then, 18 years into serving a sentence on a 1986
Manitowoc (Wisconsin) County rape conviction, that
Avery was released from prison after DNA testing
pointed to another man as the perpetrator of the crime.
Johnson owns a trailer and a garage on a piece of land
in rural Manitowoc County. The area also holds an auto
salvage yard. Johnson rented the property to Avery
sometime in 2003. On October 31, 2005, a photographer
from Auto Trader magazine named Teresa Halbach
met with Avery at the property. She was never seen
again. An investigation into Halbach’s disappearance
led to murder charges (and a charge of mutilating a
corpse) against Avery. Avery denied the charges, arguing1
that he was framed by Manitowoc County authorities
hellbent on retaliating against him for filing a $36 million
dollar lawsuit against them stemming from his 1986
wrongful conviction. Despite this claim, a jury in Calumet
County (the case was transferred there) convicted Avery
in 2007 of murdering Halbach. Avery was sentenced2
to life in prison without parole. His appeal of that con-
viction, we were told during oral argument in this case,
is pending in the Wisconsin Court of Appeals.
Johnson’s case against Manitowoc and Calumet Counties
and several Calumet county officials (we will refer to3
the defendants, collectively, as “Manitowoc”) grows out

-- 2 of 11 --

No. 10-2409 3
Calumet County ran the investigation because of Avery’s 4
then—ongoing lawsuit against Manitowoc County.
of the investigation into Ms. Halbach’s disappearance
and murder. During the investigation authorities exe-
cuted several search warrants and seized several items
belonging to Johnson. These items, held as evidence,
have yet to be returned. The meat of the claim, however,
involves damage to Johnson’s property which included
removing carpet sections and wall paneling, cutting up
a couch in the trailer, and jackhammering the concrete
floor of the garage.
Johnson brought claims pursuant to 42 U.S.C. § 1983,
alleging violations of his Fourth, Fifth, and Fourteenth
Amendment rights. The district judge granted Man-
itowoc’s motion for summary judgment on all of
Johnson’s claims and declined to exercise supple-
mental jurisdiction over his remaining state law claims.
On appeal, Johnson argues (1) that his Fourth and Four-
teenth Amendment rights were violated when officers
used a jackhammer instead of a less destructive instru-
ment to remove concrete from his garage, and (2) that
he is entitled to compensation under the Takings Clause
of the Fifth Amendment for damage caused to his
property and items taken during the execution of the
search warrants.
The investigation into Halbach’s murder was led by the
Calumet County Sheriff’s Department. The investigation4
focused on the trailer where Avery lived, along with
the garage and the surrounding land and structures.

-- 3 of 11 --

4 No. 10-2409
Johnson was not present at any time during the
searches; he does not claim that the search warrants were
invalid; and he is not disputing that the warrants were
based on probable cause. At all relevant times, Jerry
Pagel was the Sheriff of Calumet County and Sheriff’s
Deputies William Tyson, Mark Wiegert, Wendy Baldwin
and John Dedering executed the search warrants on
Johnson’s property.
Every item seized by the officers relates to a specific
search warrant. A March 1, 2006, warrant commanded
the officers to search for and return knives, bullet frag-
ments, human blood and other genetic material, cleaning
supplies, bedding, mattresses, “or any other items upon
which blood may have sprayed, dripped or otherwise
adhered to including but not limited to, the concrete
floor.” Other search warrants were more expansive,
ranging from instruments “capable of taking human life”
to objects used to “wrap or encase a body” or hide a body,
to “[a]ny other items which officers identify as being
related to the investigation of the disappearance or homi-
cide of Teresa M. Halbach.”
Acting under the warrants, the officers identified
several areas of the garage where blood may have
seeped through the cracks in the concrete floor. In order
to reach these areas, the officers jackhammered a portion
of the floor approximately eight feet long by two feet
wide. The overall amount of concrete removed from
the garage was relatively small, but the damage was
extensive enough that the entire floor had to be re-
placed. Johnson argues that the officers could have

-- 4 of 11 --

No. 10-2409 5
used a carbide or diamond saw to cut smaller areas,
causing less damage.
The officers also damaged the inside of the trailer
during the search. The main door was damaged. The
officers also removed two or three sections of paneling
from the bedroom, about half of the hallway and
bedroom carpeting, and small swatches from the
couch. They removed, but did not seize, personal items
in the garage in order to inspect the floor.
Johnson argues that the combination of damage to the
trailer and garage, missing items of personal property,
and his financial inability to afford repairs makes the
trailer unusable, except when he decides to “rough
it”—then the trailer is usable for a night at a time. Johnson
concedes that he can still use the property for recrea-
tional activities like hiking or walking, or for storage.
All of the items collected from the search are in posses-
sion of the Manitowoc County Clerk of the Courts if they
were produced as evidence in the trial, and the
remaining items are in possession of the Calumet
County Sheriff’s Department. In Wisconsin, seized items
may be returned upon authorization of the District Attor-
ney when they are no longer needed as evidence.
Because Avery’s appeal is still pending, the District
Attorney has not yet released the property. Johnson does
not seriously dispute that the items might be needed
while the case against Avery is still alive.
In the fall of 2007, Johnson called the Calumet County
Sheriff’s Department in order to find out who was re-
sponsible for the damage to his property and how he

-- 5 of 11 --

6 No. 10-2409
could get his seized property back. He also approached
Officer Wiegert and requested a list of items taken from
his property. But Johnson has not officially requested
that his items be returned.
Johnson then filed this suit against Manitowoc
alleging that the taking of his property, and damage to
his trailer, violated his constitutional rights. Johnson
also included state law causes of action, including a
negligence claim and a takings claim under Article 1,
Section 13 of the Wisconsin Constitution.
The district judge granted Manitowoc’s motion for
summary judgment, finding that the use of the jack-
hammer was reasonable under the circumstances in
compliance with the Fourth Amendment, that Johnson
did not have a valid takings claim under the Fifth Amend-
ment because the officers were acting pursuant to their
police power, and that Johnson failed to state a viable
Fourteenth Amendment claim because the officers’
conduct was reasonable under the circumstances. The
judge also found that Johnson failed to state a claim
for municipal liability against either Calumet or
Manitowoc County. Finally, after granting Manito-
woc’s motion in regard to the federal claims, the
judge declined to exercise supplemental jurisdiction
over Johnson’s state law claims.
We review the judge’s grant of summary judgment
de novo. Green v. Butler, 420 F.3d 689, 694 (7th Cir. 2005).
Summary judgment is appropriate where the evidence
shows that “there is no genuine issue as to any
material fact and that the movant is entitled to judgment

-- 6 of 11 --

No. 10-2409 7
as a matter of law.” Fed. R. Civ. P. 56(c)(2). “A genuine
issue of material fact arises only if sufficient evidence
favoring the nonmoving party exists to permit a jury
to return a verdict for that party.” Faas v. Sears, Roebuck
& Co., 532 F.3d 633, 640-41 (7th Cir. 2008) (internal quota-
tion marks omitted).
We begin with Johnson’s claim that his Fourth Amend-
ment rights were violated when the officers used a
jackhammer in their effort to collect evidence in ac-
cordance with the search warrant. The Fourth Amend-
ment guarantees that the “right of the people to be
secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon
probable cause.” “The touchstone of Fourth Amendment
inquiry is reasonableness, a standard measured in light
of the totality of the circumstances and determined
by balancing the degree to which a challenged action
intrudes on an individual’s privacy and the degree to
which the action promotes a legitimate government
interest.” Green, 420 F.3d at 694 (internal citations omit-
ted). The reasonableness requirement extends to the
manner in which the search is conducted. Id. at 694-95. It
is “generally left to the discretion of the executing
officers to determine the details of how best to proceed
with the performance of a search authorized by warrant.”
Dalia v. United States, 441 U.S. 238, 257 (1979). The test
is whether “the officers executing the warrant em-
ploy[ed] a methodology that is, in light of the values
protected by the Fourth Amendment and the exigencies
of the situation, a reasonable one.” United States v. Jones,
54 F.3d 1285, 1292 (7th Cir. 1995).

-- 7 of 11 --

8 No. 10-2409
Johnson argues that the officers’ use of the jack-
hammer violates the reasonableness standard of the
Fourth Amendment. He contends that the officers
should have used a diamond or carbide-bladed saw,
which would have resulted in less damage to the garage
floor. Perhaps Johnson is correct, but the use of the
jackhammer looks to be reasonable under the circum-
stances. Reasonableness, of course, is judged from the
perspective of the officer at the time of the search, not
with the benefit of 20/20 hindsight. Graham v. Connor, 490
U.S. 386, 396 (1989). Although another device, here
a diamond or carbide saw, might well have done the
job a little cleaner, use of the jackhammer under the cir-
cumstances was not unreasonable. Johnson cites, and
we find, no cases requiring that officers use the least
possible destructive means to execute a search warrant.
Rather, “so long as the officer’s conduct remains within
the boundaries of reasonableness, an officer has discre-
tion over the details of how best to proceed with a
search warrant’s execution.” Lawmaster v. Ward, 125
F.3d 1341, 1349 (10th Cir. 1997).
Johnson points to the Tenth Circuit’s decision in
Lawmaster where the court found that the officers’
actions—leaving the plaintiff’s gun in the dog’s water
bowl and leaving cigar and cigarette ashes in his bed-
ding—were not “reasonably necessary to carry out
the warrant’s purpose to search for and seize a
machine gun and parts.” Id. at 1349-50. The Tenth Circuit
held that the officers’ actions were not reasonable as
they had nothing to do with the search for a machine
gun. Here, however, the use of the jackhammer was a

-- 8 of 11 --

No. 10-2409 9
reasonable effort to gather blood samples from the con-
crete floor. Moreover, the court in Lawmaster held that
officers did not violate the Fourth Amendment when
they broke the locks on a gun vault, “because the Agents
had to examine the contents of the gun vault” and thus
“such conduct was reasonably necessary to carry out the
purposes of the warrant.” Id. at 1350 n.3. With that,
Lawmaster actually gives more support to the defendants
here than it does to Johnson.
Johnson also tries, rather unconvincingly, to dis-
tinguish United States v. Becker, 929 F.2d 442 (9th Cir.
1991), a case where the Ninth Circuit held that the use
of a jackhammer to remove portions of a concrete slab
during a search was reasonable. The court noted that
the agents “had ample reason to believe that the
concrete slab was being utilized to hide the very
evidence they were legally on the premises to find. The
only way to obtain this evidence was to use a jack-
hammer to break up the concrete.” Id. at 447. Although
Becker did not address whether there was a less
destructive method than using a jackhammer to dig up
the concrete floor, we don’t think that sort of discussion
was necessary. The question here, as in Becker, is reason-
ableness under the circumstances. We think it was rea-
sonable and that Johnson’s Fourth Amendment rights
were not violated. And because challenges to the “reason-
ableness of a search by government agents clearly fall
under the Fourth Amendment, and not the Fourteenth,”
Conn v. Gabbert, 526 U.S. 286, 293 (1999), Johnson’s claim
under that amendment fails as well.

-- 9 of 11 --

10 No. 10-2409
We turn now to Johnson’s claim that he is entitled to
compensation under the Takings Clause of the Fifth
Amendment. The claim, unfortunately for Johnson,
fares no better than did his claims under Amendments
Four and Fourteen.
The Takings Clause provides, “nor shall private prop-
erty be taken for public use, without just compensation.”
It is made applicable to the States by the Fourteenth
Amendment. Kelo v. City of New London, Conn., 545 U.S.
469, 472 n.1 (2005). But the Takings Clause does not
apply when property is retained or damaged as the
result of the government’s exercise of its authority pur-
suant to some power other than the power of eminent
domain. See AmeriSource Corp. v. United States, 525 F.3d
1149, 1154 (citing Bennis v. Michigan, 516 U.S. 442, 452
(1996)). Here, the actions were taken under the state’s
police power. The Takings Clause claim is a non-starter.
So we conclude that summary judgment was properly
granted to Manitowoc on all of Johnson’s claims. But
having said that, we add that it seems quite unfair to
make an innocent, unlucky landlord absorb the costs
associated with the execution of a search warrant
directed at a criminally-inclined tenant. But we note
that Johnson is not without redress. Wisconsin has pro-
cedures that Johnson can turn to for both the return of
his property and the damage to his garage floor and
trailer. He should use those procedures to seek redress.
Johnson simply does not have grounds to make a federal
constitutional claim under the Fourth or Fourteenth
Amendment or the Takings Clause of the Fifth Amend-
ment.

-- 10 of 11 --

No. 10-2409 11
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
3-10-11

-- 11 of 11 --