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Title Leveto v. Lapina

Date 2001

By Alito

Subject Criminal Law

Contents

Page 1

82 of 238 DOCUMENTS

DANIEL J. LEVETO; MARGARET A. LEVETO, Appellants v. ROBERT A. LAPINA; RICHARD W. ADAMS; JUDY A. GRAHAM; SUZI HINES; THOMAS DEMKO; GEORGE TORBIC; JOHN WATSON; DAVID KIRK; DEBORAH KIRK; ROBERT GROOVER; JEFF MILLER; EDWARD WIRTH; CYNTHIA UNDERWOOD; ELIZABETH QUINN; "JOE RIVERA"

No. 00-3241

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

258 F.3d 156; 2001 U.S. App. LEXIS 15933; 2001-2 U.S. Tax Cas. (CCH) P50,536; 88

A.F.T.R.2d (RIA) 5786

October 26, 2000, Argued

July 17, 2001, Filed

PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (Dist. Court No. 98-143). District Court Judge: Maurice B. Cohill, Jr.

DISPOSITION: Affirmed.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiffs, husband and wife, appealed from a judgment of the United States District Court for the Western District of Pennsylvania, dismissing plaintiffs' Bivens' complaint against defen- dants, numerous known and unknown Internal Revenue Service (IRS) agents, for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

OVERVIEW: Plaintiffs' claims arose from an IRS inves- tigation of plaintiffs and the execution of search warrants at the plaintiffs' home and husband's veterinary office. Plaintiffs alleged that the IRS agents, in executing the war- rants, improperly patted them down, detained them for up to eight hours without probable cause or reasonable suspi- cion, and closed husband's business. The court concluded that the complaint alleged a valid Fourth Amendment vi- olation regarding the pat down of the wife. The court reasoned that in order to pat her down, the agents needed a reasonable suspicion that she was armed and dangerous, and her presence on the premises was not alone sufficient to justify the pat down. The court also found that the complaint identified no reason to suspect that husband was armed or that he even owned any firearms. The inves- tigation into possible tax evasion, without more, provided little reason to suspect that he posed a threat. However, the

court concluded that defendants were entitled to qualified immunity due to uncertainty in the case law.

OUTCOME: The judgment was affirmed.

LexisNexis(R) Headnotes

Civil Procedure > Appeals > Standards of Review > De

Novo Review

HN1 An appellate court's review of both a dismissal under Fed. R. Civ. P. 12(b)(6) and a grant of qualified immunity is plenary.

Civil Procedure > Pleading & Practice > Defenses, Objections & Demurrers > Failure to State a Cause of Action

HN2 In reviewing the dismissal of a claim under Fed. R. Civ. P. 12(b)(6), a court must accept the allegations of the complaint as true and draw all reasonable inferences in the light most favorable to the plaintiffs. Dismissal is proper only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.

Civil Procedure > Pleading & Practice > Defenses, Objections & Demurrers > Failure to State a Cause of Action

HN3 Although immunity is an affirmative defense, a complaint may be subject to dismissal under Fed. R. Civ. P.

12(b)(6) when an affirmative defense appears on its face. Thus, qualified immunity will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint.

Constitutional Law > Civil Rights Enforcement > Immunity > Public Officials

HN4 The principles governing claims of qualified im-

258 F.3d 156, *; 2001 U.S. App. LEXIS 15933, **1;

2001-2 U.S. Tax Cas. (CCH) P50,536; 88 A.F.T.R.2d (RIA) 5786

Page 2

munity are well-established. Under this doctrine, govern- ment officials performing discretionary functions gener- ally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statu- tory or constitutional rights of which a reasonable person would have known. The doctrine of qualified immunity provides ample protection to all but the plainly incompe- tent or those who knowingly violate the law. Constitutional Law > Civil Rights Enforcement > Immunity > Public Officials

HN5 In determining whether qualified immunity ap- plies in a specific case, a court first determines whether the plaintiff has alleged the deprivation of an actual consti- tutional right at all. If so, the court proceeds to determine whether that right was clearly established at the time of the alleged violation.

Constitutional Law > Civil Rights Enforcement > Immunity > Public Officials

HN6 Where appropriate, a court may consider whether the constitutional rights asserted were clearly established at the time the individual officials acted, without initially deciding whether a constitutional violation was alleged at all.

Constitutional Law > Civil Rights Enforcement > Immunity > Public Officials

HN7 A right may be clearly established even if there is no previous precedent directly in point. The ultimate issue is whether reasonable officials in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful.

Constitutional Law > Civil Rights Enforcement > Immunity > Public Officials

HN8 If a reasonable official would have known that the conduct was unlawful, qualified immunity is generally not available. If, on the other hand, the law was not clearly es- tablished or a reasonable official could have believed the actions to be lawful, the official is entitled to immunity. Constitutional Law > Civil Rights Enforcement > Immunity > Public Officials

HN9 If the official pleading the qualified immunity de- fense claims extraordinary circumstances and can prove that he neither knew nor should have known of the rele- vant legal standard, the defense should be sustained. Constitutional Law > Search & Seizure > Scope of Protection

HN10 A pat down is unquestionably a search covered by the Fourth Amendment.

Constitutional Law > Search & Seizure > Scope of

Protection

HN11 As with other searches, the constitutionality of a pat down is judged by a standard of reasonableness. Constitutional Law > Search & Seizure > Scope of Protection

HN12 An officer may conduct a reasonable search for weapons for the protection of the officer, where the offi- cer has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual.

Constitutional Law > Search & Seizure > Scope of

Protection

HN13 Conducting a pat down is lawful when, under the circumstances, an officer has a reasonable belief that the subject is armed and dangerous.

Constitutional Law > Search & Seizure > Scope of

Protection

HN14 To justify a pat down, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reason- ably warrant that intrusion. The court must then determine whether the facts available to the officer at the moment of the search warrant a man of reasonable caution in the belief that the action taken was appropriate. Constitutional Law > Search & Seizure > Scope of Protection

HN15 Possession of a warrant to search particular premises is not alone sufficient to justify a pat down of a person found on the premises at the time of execution. Terry does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized search is taking place. Constitutional Law > Search & Seizure > Scope of Protection

HN16 In assessing whether law enforcement officers are justified in taking precautions for their own protec- tion, a court must keep in mind that a threat that may seem insignificant to us in the security of our chambers may appear more substantial to a reasonable officer whose own life or safety is at stake, but at the same time a court cannot endorse a blanket rule that law enforcement offi- cers may always pat down any resident who is present in premises being searched and who may be a subject of the investigation, no matter what the nature of the suspected offense.

Constitutional Law > Search & Seizure > Scope of

Protection

HN17 The police have the authority to make a limited search of an individual on premises being searched as a self-protective measure.

258 F.3d 156, *; 2001 U.S. App. LEXIS 15933, **1;

2001-2 U.S. Tax Cas. (CCH) P50,536; 88 A.F.T.R.2d (RIA) 5786

Page 3

Constitutional Law > Search & Seizure > Scope of

Protection

HN18 A seizure within the meaning of the Fourth Amendment occurs whenever a police officer accosts an individual and restrains his freedom to walk away. Constitutional Law > Search & Seizure > Scope of Protection

HN19 The general rule is that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause. However, an exception exists for limited intrusions that may be justified by special law enforcement interests. The reasonableness of these intrusions is determined by balancing the intrusiveness of the seizure against law en- forcement interests and law enforcement's articulable ba- sis for suspecting criminal activity.

Constitutional Law > Search & Seizure > Scope of

Protection

HN20 The Supreme Court has identified several law enforcement interests that, when balanced against the de- gree of intrusion, might justify a limited seizure pursuant to a search: the general interest in effective crime pre- vention and detection; the interest in preventing flight in the event that incriminating evidence is found; the inter- est in minimizing the risk of harm to the officers and the occupants of the area searched, which is served if the officers routinely exercise unquestioned command of the situation; and the interest in the orderly completion of the search, which may be facilitated if the occupants of the premises are present to open secured doors or containers. In addition, if the evidence that a citizen's residence is harboring contraband is sufficient to persuade a judicial officer that a search of the home is justified, the connec- tion of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.

Constitutional Law > Search & Seizure > Scope of

Protection

HN21 Whether law enforcement interests can justify a seizure depends on the intrusiveness of the seizure. Constitutional Law > Search & Seizure > Scope of Protection

HN22 A seizure is more intrusive if it involves moving the suspect to another locale.

Criminal Law & Procedure > Criminal Offenses > Fraud > Tax Fraud

HN23 Tax evasion is a crime that is generally only de- tected through the careful analysis and synthesis of a large number of documents.

Constitutional Law > Search & Seizure > Scope of

Protection

HN24 If agents are conducting an investigation into a type of offense often accompanied by violence, detention for some length of time might be reasonable. Constitutional Law > Search & Seizure > Scope of Protection

HN25 Articulable and individualized suspicion exists when law enforcement officers have a valid warrant to search a home for contraband and the detainee is an oc- cupant of the home.

Constitutional Law > Search & Seizure > Scope of

Protection

HN26 The rationale justifying detention based on the occupant's connection to the premises is not applicable to a search for evidence, because the existence of mere evi- dence, as opposed to contraband, on the premises does not suggest that a crime is being committed on the premises. Constitutional Law > Search & Seizure > Scope of Protection

HN27 A warrant to search for contraband founded on probable cause implicitly carries with it the limited au- thority to detain the occupants of the premises while a proper search is conducted.

COUNSEL: WILLIAM G. McCONNELL (Argued), Ekker, Kuster & McConnell, Sharon, PA, Counsel for Appellants.

JONATHAN S. COHEN, A. WRAY MUOIO (Argued), Tax Division, United States Department of Justice, Washington, DC, Counsel for Appellees.

JUDGES: Before: MANSMANN, ALITO, and

FUENTES, Circuit Judges. OPINIONBY: ALITO OPINION: *159

OPINION OF THE COURT ALITO, Circuit Judge:

Dr. Daniel Leveto and his wife, Margaret Leveto, filed this action against numerous known and unknown Internal Revenue Service ("IRS") agents. The Levetos asserted nu- merous federal constitutional claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 *160

(1971), as well as many federal statutory claims. All of the claims arose from an IRS investigation of the Levetos and the execution of search warrants at the Levetos' home and Dr. Leveto's veterinary office. The District Court dis- missed the Complaint for failure to state a claim under

258 F.3d 156, *160; 2001 U.S. App. LEXIS 15933, **1;

2001-2 U.S. Tax Cas. (CCH) P50,536; 88 A.F.T.R.2d (RIA) 5786

Page 4

Fed. R. Civ. P. 12(b)(6), and the Levetos took **2 this appeal.

Most of the arguments raised on appeal lack merit and do not require further discussion. However, some of the Levetos' Fourth Amendment claims present impor- tant issues concerning the execution of search warrants. The Levetos allege that the IRS agents, in executing the warrants, improperly patted them down, detained them for up to eight hours without probable cause or reason- able suspicion, and closed Dr. Leveto's business. We hold that the Levetos successfully alleged certain violations of their Fourth Amendment rights, but we conclude that the defendants were entitled to qualified immunity due to uncertainty in the case law, and we therefore affirm the decision of the District Court.

I. A.

The following facts are alleged in the Second Amended Complaint ("the Complaint"). On May 2, 1996, as part of an investigation into Dr. Leveto's tax-related activities, 15 IRS agents executed search warrants at the Levetos' home and the Langdon and Leveto Veterinary Hospital, where Dr. Leveto worked as a veterinarian and general manager. See Complaint PP 20-21, 23-24, 31. According to the Complaint, Dr. Leveto arrived at the hos- pital that day at approximately 6:30 a.m. and was rushed

**3 in the parking lot by armed agents. Id. P 20. Some agents informed Dr. Leveto that they had a search warrant, flashed the warrant in front of him, and patted him down, while other agents shouted, "Where are the weapons?" Id. P 21. The agents escorted Dr. Leveto into the hospital, where he was held in a small room for roughly one hour and was prohibited from answering the phone or speaking with anyone other than the agents. Id. P 22.

After an hour, the agents ordered Dr. Leveto to ac- company them to a location where they met other agents, and they then proceeded to the Levetos' home. Id. P 23. At the Levetos' home, the agents again displayed a search warrant and patted down Margaret Leveto, who was wear- ing only a nightgown. Id. Several agents remained at the Levetos' home, where they detained Mrs. Leveto for ap- proximately six hours, interrogated her without providing Miranda warnings, and conducted a search in which they seized thousands of documents, including family medical records, personal mail, and most of the publications in the Levetos' personal library. Id. PP 24, 106-07, 120, 138. Other agents ordered Dr. Leveto to return with them to the hospital, where they held him in **4 a closed room for approximately six hours. Id. PP 25, 141. He was not permitted external communication and was su- pervised during visits to the restroom. Id. During this

six-hour seizure, armed agents interrogated Dr. Leveto without providing Miranda warnings, while other agents searched the hospital. Id. PP 26-27, 137, 141, 145.

During the course of the search, the IRS agents sent hospital employees home and turned away clients in the parking lot, informing them that the hospital was closed until further notice. Id. PP 29-30. The agents likewise prevented Dr. Leveto from speaking with clients or fellow employees or otherwise performing his duties as general manager. Id. PP 31-32, 145. *161

When the search of the hospital concluded, the agents took away thousands of documents containing records of five companies, confidential medical and financial infor- mation on clients, and computer software. Id. PP 33-34. No weapons were located on the premises. Id. P 36.

The named defendants moved to dismiss the Complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and they con- tended that they were entitled to qualified immunity on the federal constitutional **5 claims. The District Court granted this motion. Holding that the pat downs did not violate the Levetos' Fourth Amendment rights, the Court quoted with approval another district court opinion stating that " 'the courts have permitted police officers to frisk all occupants of premises being searched without regard to any particularized suspicion that the officer may have' " and that this authority permits the frisking of "even those persons who happen to be scantily clad at the time of the search." App. 41 (quoting Collier v. Locicero, 820 F. Supp.

673, 681 (D. Conn. 1993)). With respect to the detention of the Levetos, the District Court relied on Michigan v. Summers, 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct.

2587 (1981), and stated that "during execution of a search warrant, police can detain the occupant of the premises they have a warrant to search." App. 41. In addition, the Court held that "no reasonable officer in the defendants' position would have believed that their conduct violated clearly established constitutional rights." Id. at 42. This appeal followed.

II. A.

HN1 Our review of both a dismissal under Fed. R. Civ. P. 12(b)(6) and a grant of qualified **6 im- munity is plenary. Board of Trustees of Bricklayers & Allied Craftsmen Local 6 of New Jersey Welfare Fund v. Wettlin Assocs., Inc., 237 F.3d 270, 272 (3d Cir. 2001); Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238,

254 (3d Cir. 1999). HN2 In reviewing the dismissal of a claim under Rule 12(b)(6), we must "accept the alle-

258 F.3d 156, *161; 2001 U.S. App. LEXIS 15933, **6;

2001-2 U.S. Tax Cas. (CCH) P50,536; 88 A.F.T.R.2d (RIA) 5786

Page 5

gations of the complaint as true and draw all reasonable inferences in the light most favorable to the plaintiffs." Board of Trustees, 237 F.3d at 272. Dismissal is proper

"only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Brown v. Philip Morris Inc., 250 F.3d 789,

796, 2001 WL 533654, *3 (3d Cir. 2001).

This same approach must be followed when qualified immunity is asserted in a Rule 12(b)(6) motion. HN3 Although immunity is an affirmative defense, "a com- plaint may be subject to dismissal under Rule 12(b)(6) when an affirmative defense . . . appears on its face." ALA, Inc. v. CCAir, Inc., 29 F.3d 855, 859 (3d Cir. 1994); see also 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 358-59 (1990) (citing cases). **7 Thus, qualified immunity " 'will be upheld on a 12(b)(6) motion only when the immunity is estab- lished on the face of the complaint.'" Hafley v. Lohman,

90 F.3d 264, 266 (8th Cir. 1996) (citation omitted); see also, e.g., Pani v. Empire Blue Cross Blue Shield, 152 F.3d

67, 74 (2d Cir. 1998) (official immunity); Santamorena v. Georgia Military College, 147 F.3d 1337, 1340 (11th Cir.

1998).

HN4 The principles governing claims of qualified immunity are well-established. Under this doctrine, "gov- ernment officials performing discretionary functions gen- erally *162 are shielded from liability for civil damages insofar as their conduct does not violate clearly estab- lished statutory or constitutional rights of which a reason- able person would have known." Harlow v. Fitzgerald,

457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727

(1982); see also Torres v. United States, 200 F.3d 179,

184 (3d Cir. 1999); Grant v. City of Pittsburgh, 98 F.3d

116, 121 (3d Cir. 1996); Shea v. Smith, 966 F.2d 127, 130

(3d Cir. 1992). The doctrine of qualified immunity "pro- vides ample protection to all but the plainly incompetent

**8 or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986); see also Giuffre v. Bissell, 31 F.3d 1241,

1255 (3d Cir. 1994).

HN5 In determining whether qualified immunity ap- plies in a specific case, we "first determine whether the plaintiff has alleged the deprivation of an actual consti- tutional right at all." Wilson v. Layne, 526 U.S. 603, 609,

143 L. Ed. 2d 818, 119 S. Ct. 1692 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, 290, 143 L. Ed. 2d 399, 119 S. Ct. 1292 (1999)); see also Assaf v. Fields, 178 F.3d 170,

174 (3d Cir. 1999); Siegert v. Gilley, 500 U.S. 226, 232,

114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991) ("A necessary concomitant to the determination of whether the consti- tutional right asserted by a plaintiff is 'clearly established'

at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a consti- tutional right at all."); Torres, 200 F.3d at 184 ("A court

. . . need not consider whether the right implicated was clearly established . . . if the plaintiff has not alleged a deprivation **9 of a constitutional right."); Giuffre, 31

F.3d at 1247, 1255. n1 "If so, we proceed to determine whether that right was clearly established at the time of the alleged violation." Wilson, 526 U.S. at 609 (quoting Conn, 526 U.S. at 290); see Assaf, 178 F.3d at 174.

n1 We have said, however, that " HN6 where appropriate, we may consider whether the constitu- tional rights asserted . . . were 'clearly established' at the time the individual officials acted, without ini- tially deciding whether a constitutional violation was alleged at all." Giuffre, 31 F.3d at 1255; see also Acierno v. Cloutier, 40 F.3d 597, 607 n.7 (3d Cir. 1994)(en banc).

HN7

A right may be clearly established even if there is no

"previous precedent directly in point." Good v. Dauphin

County Soc. Servs. for Children & Youth, 891 F.2d 1087,

1092 (3d Cir. 1989); see also Assaf, 178 F.3d at 177. "The ultimate issue is whether . . . reasonable officials **10 in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful." Good, 891 F.2d at 1092; see also Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987) ("In the light of pre- existing law the unlawfulness must be apparent"; other- wise qualified immunity is available.); Assaf, 178 F.3d at 177 (quoting Anderson, 483 U.S. at 640); Giuffre, 31

F.3d at 1255 (quoting Good, 891 F.2d at 1092); Shea, 966

F.2d at 130 (" 'Clearly established rights' are those with contours sufficiently clear that a reasonable official would understand that what he is doing violates that right.").

HN8 If a reasonable official would have known that the conduct was unlawful, qualified immunity is generally not available. n2 See Harlow, 457 U.S. at 818-19 *163

("If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent pub- lic official should know the law governing his conduct."); Assaf, 178 F.3d at 181 (Where "any hypothetical reason- able official **11 should have known that" a state em- ployee's position was protected by the First Amendment, qualified immunity was not available.); Shea, 966 F.2d at 130 (citing Harlow, 457 U.S. at 818). If, on the other hand, the law was not clearly established or a reasonable official could have believed the actions to be lawful, the official is entitled to immunity. See Harlow, 457 U.S. at

258 F.3d 156, *163; 2001 U.S. App. LEXIS 15933, **11;

2001-2 U.S. Tax Cas. (CCH) P50,536; 88 A.F.T.R.2d (RIA) 5786

Page 6

818; Karnes v. Skrutski, 62 F.3d 485, 492, 493-94 (3d Cir. 1995); Giuffre, 31 F.3d at 1256-57; Shea, 966 F.2d at 130; Good, 891 F.2d at 1092.

n2 " HN9 If the official pleading the qual- ified immunity defense claims extraordinary cir- cumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained." Harlow, 457 U.S. at 819. No extraordinary circumstances appear on the face of plaintiffs' Complaint, nor have defen- dants sought to fit within this exception.

In this case, we must **12 decide whether, "accept- ing the allegations of the complaint as true and drawing all reasonable inferences in the light most favorable to the plaintiffs," Board of Trustees, 237 F.3d at 272, "a reason- able agent could have believed the IRS agents' actions in conducting the search to be lawful, in light of clearly established law and the information the searching agents possessed." Anderson, 483 U.S. at 641; see also Wilson,

526 U.S. at 615; Torres, 200 F.3d at 184.

III. A.

Dr. and Mrs. Leveto complain that the IRS agents vio- lated the Fourth Amendment in patting them down during the execution of the search warrants. As noted, the agents allegedly patted down Dr. Leveto in the hospital parking lot as he arrived for work. The agents patted down Mrs. Leveto at her home.

HN10 A pat down is unquestionably a search cov- ered by the Fourth Amendment. As the Supreme Court held in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), "it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt **13 to find weapons is not a

'search.' " Id. at 16. Indeed, a pat down can be "a serious intrusion upon the sanctity of the person, which may in- flict great indignity and arouse strong resentment." Id. at

17; see also Complaint PP 166, 174.

HN11 As with other searches, the constitutionality of a pat down is judged by a standard of reasonable- ness. See Terry, 392 U.S. at 19-22; see also Illinois v. McArthur, 531 U.S. 326, , 121 S. Ct. 946, 949, 148

L. Ed. 2d 838 (2001) (The Fourth Amendment's " 'cen- tral requirement' is one of reasonableness."); Maryland v. Buie, 494 U.S. 325, 331, 108 L. Ed. 2d 276, 110 S. Ct.

1093 (1990) ("The Fourth Amendment bars only unrea- sonable searches and seizures."); United States v. Sharpe,

470 U.S. 675, 685, 84 L. Ed. 2d 605, 105 S. Ct. 1568

(1985) ("The Fourth Amendment is not, of course, a guar- antee against all searches and seizures, but only against unreasonable searches and seizures."); Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977) (per curiam) ("The touchstone of our anal- ysis under the Fourth Amendment is always 'the **14 reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' "). Reasonableness is determined "by balancing the need to search or seize against the invasion which the search or seizure entails." Terry, 392 U.S. at 21 (quoting Camara v. Municipal Court, 387 U.S. 523, 537, 18 L. Ed. 2d 930, 87

S. Ct. 1727 (1967)); see also McArthur, 531 U.S. at 331,

*164 121 S. Ct. at 950 ("Rather than employing a per se rule of unreasonableness in this case , we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable."); Buie, 494

U.S. at 331; Mimms, 434 U.S. at 109.

Based on this balancing, the Supreme Court has held that HN12 an officer may conduct "a reasonable search for weapons for the protection of the . . . officer, where

the officer has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual." Terry, 392

U.S. at 27; see also Michigan v. Long, 463 U.S. 1032,

1034, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983) **15

(pat down allowed when officer "possesses an articulable suspicion that an individual is armed and dangerous"); Ybarra v. Illinois, 444 U.S. 85, 92-93, 62 L. Ed. 2d 238,

100 S. Ct. 338 (1979) (" A reasonable belief that a per- son was armed and presently dangerous . . . must form the predicate to a patdown of a person for weapons."); United States v. Kithcart, 218 F.3d 213, 219 (3d Cir. 2000) (rec- ognizing "that a police officer may conduct a reasonable search for weapons for his or her own protection with- out violating the Fourth Amendment 'where he /she has reason to believe that he /she is dealing with an armed and dangerous individual"); United States v. Kikumura,

918 F.2d 1084, 1092 (3d Cir. 1990) ("A police officer may search a detained individual for weapons if he has reasonable suspicion that the individual could be armed and dangerous to the officer or others."); United States v. Patterson, 885 F.2d 483, 485 (8th Cir. 1989) (secu- rity frisk upheld where officer "was armed with sufficient facts to be concerned about his safety and that of his fel- low officers"); United States v. Corona, 661 F.2d 805,

807 & n.2 (9th Cir. 1981) **16 (officer must "have a founded suspicion, based upon articulable facts, that the suspect was armed and presently dangerous"); United States v. Clay, 640 F.2d 157, 159, 161-62 (8th Cir. 1981)

("Protective searches are authorized only when the police officer has suspicion that the individual before him may be armed or otherwise presently dangerous."); United States

258 F.3d 156, *164; 2001 U.S. App. LEXIS 15933, **16;

2001-2 U.S. Tax Cas. (CCH) P50,536; 88 A.F.T.R.2d (RIA) 5786

Page 7

v. Cole, 628 F.2d 897, 899 (5th Cir. 1980) (Terry requires

"that specific articulable facts support an inference that the suspect might be armed and dangerous."). Thus, HN13 conducting a pat down is lawful when, under the circum- stances, an officer has a reasonable belief that the subject is armed and dangerous.

HN14 To justify a pat down, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21; see also id. at 21 n.18 (The "demand for speci- ficity in the information upon which police action is pred- icated is the central teaching of the Supreme Court's Fourth Amendment jurisprudence."); Buie, 494 U.S. at

332; Kithcart, 218 F.3d at 219; **17 Kikumura, 918

F.2d at 1092 ("Officer, at the time of the search, must know of 'specific and articulable facts . . . .' "). The court must then determine whether "the facts available to the officer at the moment of . . . the search 'warrant a man of reasonable caution in the belief ' that the action taken was appropriate." Terry, 392 U.S. at 21-22; see also Kithcart,

218 F.3d at 219.

The Supreme Court has also held that HN15 pos- session of a warrant to search particular premises is not alone sufficient to justify a pat down of a person found on the premises at the time of execution. In Ybarra v. Illinois,

444 U.S. at 94, the Court held that Terry "does not *165 permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized . . . search is taking place." See also Clay,

640 F.2d at 160-62; Cole, 628 F.2d at 899. Thus, even though the police in Ybarra had a warrant to search the tavern in question, the police were not justified in patting down Ybarra merely because he was on the premises at the time of execution. **18 See Ybarra, 444 U.S. at

91-94; see also Clay, 640 F.2d at 158, 160-62 (pat down of unknown visitor who arrived during execution of war- rant not justified); Cole, 628 F.2d at 898-99 (pat down of individual who pulled into carport as police arrived to execute warrant at residence not justified).

In view of the above authorities, we hold that the Complaint alleges a valid Fourth Amendment violation regarding the pat down of Mrs. Leveto. In order to pat her down, the agents needed a reasonable suspicion that she was armed and dangerous, and under Ybarra her presence on the premises was not alone sufficient to justify the pat down. We recognize that Mrs. Leveto, unlike Ybarra, was a resident of the premises being searched and may have been a subject of the criminal investigation. These are factors that must be considered in determining whether

the agents had reasonable suspicion that Mrs. Leveto was armed and dangerous. See Summers, 452 U.S. at 695 n.4; cf. United States v. Barlin, 686 F.2d 81, 87 (2d Cir. 1982)

(distinguishing Ybarra, who was "innocuously present in a crowd at a public place," from woman who entered apartment **19 evidently used for narcotics traffick- ing with individuals apparently involved in an ongoing narcotics deal). However, we do not believe that these factors alone are enough to provide a reasonable suspi- cion, and the Complaint alleges no other facts about Mrs. Leveto's background, her prior activities, or the nature of the crimes under investigation that provided reasonable suspicion that she presented a danger to the agents.

HN16 In assessing whether law enforcement officers are justified in taking precautions for their own protection,

"we must . . . keep in mind that a threat that may seem insignificant to us in the security of our chambers may ap- pear more substantial to a reasonable officer whose own life or safety is at stake," Mellott v. Heemer, 161 F.3d

117, 122 (3d Cir. 1998), but at the same time we cannot endorse a blanket rule that law enforcement officers may always pat down any resident who is present in premises being searched and who may be a subject of the investiga- tion, no matter what the nature of the suspected offense. We thus conclude that, if the allegations in the Complaint concerning the pat down of Mrs. Leveto are viewed in the light most favorable to **20 the plaintiffs, Mrs. Leveto's Fourth Amendment rights were violated.

We reach a similar conclusion concerning the consti- tutionality of the pat down of Dr. Leveto. The Complaint identifies no reason to suspect that Dr. Leveto was armed or that he even owned any firearms. n3 The investigation into possible tax evasion, without more, provided little reason to suspect that he posed a threat. Moreover, at the time of the pat down, Dr. Leveto was not in a building or room being searched but in the parking lot. We cannot assume that he would have entered the *166 veteri- nary hospital or even approached the officers if they had not rushed his car and patted him down. Accordingly, the plaintiffs have alleged a claim for unreasonable search based on the pat down of Dr. Leveto.

n3 Indeed, Dr. Leveto alleges that he is dedi- cated to animal welfare and that he and his family oppose hunting. Complaint P 36.

Although we conclude that the Complaint asserts valid Fourth Amendment claims regarding the pat downs of Mrs. Leveto and **21 Dr. Leveto, we also hold that the agents were entitled to qualified immunity with respect to these claims. While we now reject the proposition that

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law enforcement officers may always pat down a resident who is found in premises being searched and who is a possible subject of the investigation, this was not clearly established when these warrants were executed. Indeed, there was at least some significant authority to the con- trary. For example, in Rivera v. United States, 928 F.2d

592, 606 (2d Cir. 1991), which the District Court cited, the Second Circuit wrote that HN17 the police "have the authority to make a limited search of an individual on

premises being searched as a self-protective measure." As a leading treatise states, some of the lower court cases decided after Ybarra "indicated a willingness to allow a frisk provided the person had a somewhat stronger link to the premises than Ybarra did to the bar where he was found." 2 Wayne R. LaFave, Search and Seizure § 4.9(d), at 641 (3d ed. 1996); n4 see United States v. Reid, 302 U.S. App. D.C. 374, 997 F.2d 1576 (D.C. Cir. 1993) (person departing apartment to be searched for drugs); United States v. Harvey, 897 F.2d 1300 (5th Cir. 1990) **22

(person who drove to location where search had discov- ered drugs); United States v. Patterson, 885 F.2d 483 (8th Cir. 1989) (person who arrived at scene of drug search driving resident's vehicle). In view of these authorities, we hold that a reasonable agent could have believed that patting down Mrs. Leveto and Dr. Leveto was permitted by the Fourth Amendment. We therefore hold that the defendants in this case are entitled to qualified immunity with respect to the Fourth Amendment pat down claims.

n4 This treatise also viewed the Supreme

Court's decision in Michigan v. Summers, 452 U.S.

692, 69 L. Ed. 2d 340, 101 S. Ct. 2587 (1981), as expressing "greater concern about the dangers attending execution of a search warrant where pri- vate premises are involved and persons connected with the premises are present." 2 LaFave, supra, §

4.9(d), at 642 n.76.

IV. A.

We now consider the plaintiffs' argument that they were seized in violation of the Fourth Amendment dur- ing the lengthy process of **23 executing the search warrants at the veterinary hospital and the Levetos' resi- dence. HN18 A seizure within the meaning of the Fourth Amendment occurs "whenever a police officer accosts an individual and restrains his freedom to walk away." Terry,

392 U.S. at 16; see also id. at 19 n.16 ("When an offi- cer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen . . . we may conclude that a 'seizure' has occurred."); Summers,

452 U.S. at 696 (Detention of homeowner was a seizure

where he "was not free to leave the premises while the officers were searching his home."); Clay, 640 F.2d at 159

(Restriction of freedom to leave "by physical restraint or by sufficient show of authority" effects a seizure.).

Here, it is plain that both Dr. Leveto and Mrs. Leveto were seized. As previously *167 noted, according to the Complaint, Dr. Leveto's freedom was restrained from the time of the initial pat down in the parking lot through the forced relocation and armed detention that persisted until the completion of the search some eight hours later. See Complaint PP 20-33. During this time, Dr. Leveto's free- dom **24 of movement was restricted, and he was even prevented from speaking with others or using a restroom without a chaperone. Dr. Leveto was thus subjected to an extended "seizure" within the meaning of the Fourth Amendment. Similarly, Mrs. Leveto was "seized" when she was detained during the six-hour search of her home. As "the central inquiry under the Fourth Amendment

. . . is the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security," the Levetos' seizures can be upheld as consti- tutional only if they were reasonable. Terry, 392 U.S. at

19. " HN19 The general rule is that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause." Summers, 452 U.S. at 700. However, an "excep- tion exists for limited intrusions that may be justified by special law enforcement interests." Id. The reason- ableness of these intrusions is determined by balancing the intrusiveness of the seizure against law enforcement interests and law enforcement's "articulable basis for sus- pecting criminal activity." See id. at 699-705 (employing

**25 balancing to arrive at general rule); see also Terry,

392 U.S. at 20-21, 27; Baker v. Monroe Township, 50

F.3d 1186, 1192 (3d Cir. 1995).

HN20 The Supreme Court has identified several law enforcement interests that, when balanced against the de- gree of intrusion, might justify a limited seizure pursuant to a search: namely, the "general interest in . . . ef- fective crime prevention and detection," Terry, 392 U.S. at 22; the "interest in preventing flight in the event that incriminating evidence is found"; "the interest in mini- mizing the risk of harm to the officers" and the occu- pants of the area searched, which is served "if the officers routinely exercise unquestioned command of the situa- tion"; and the interest in "the orderly completion of the search," which "may be facilitated if the occupants of the premises are present" to open secured doors or containers. Summers, 452 U.S. at 702-03; see also Baker, 50 F.3d at

1191; United States v. Edwards, 103 F.3d 90, 93 (10th Cir.

1996); United States v. Cochran, 939 F.2d 337, 339 (6th

Cir. 1991); Daniel v. Taylor, 808 F.2d 1401, 1404 (11th

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Cir. 1986). **26 n5 In addition, the Supreme Court has found that "if the evidence that a citizen's residence is harboring contraband is sufficient to persuade a judicial officer that" a search of the home is justified, "the connec- tion of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant." Summers, 452 U.S. at 703-05.

n5 A detention may be reasonable even if fewer than all of these law enforcement interests are present. See United States v. Bohannon, 225 F.3d

615, 617 (6th Cir. 2000).

HN21 Whether these law enforcement interests can justify a seizure depends on the intrusiveness of the seizure. The Court's holdings in Michigan v. Summers and Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d

824, 99 S. Ct. 2248 (1979), illustrate this principle.

In Michigan v. Summers, 452 U.S. at 693 & n.1, police officers *168 found the owner of a home descending the front **27 steps as they arrived to search for nar- cotics pursuant to a warrant. The officers stopped and detained the homeowner while they executed the search, which located narcotics under a bar in the basement. Id. The Supreme Court held that this detention "was 'sub- stantially less intrusive' than an arrest." Id. at 702 (quot- ing Dunaway, 442 U.S. at 210). The Court observed that the detention was only an incremental intrusion where there was already a warrant to conduct the more intrusive search of the home. 452 U.S. at 701, 703. Moreover, the Court noted that most people would prefer "to remain in order to observe the search of their possessions," and the Court added that "because the detention . . . was in the detainee's own residence, it could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station." Id. at 701, 702. Finally, the Court found that "the type of detention imposed . . . was not likely to be exploited by the officer or unduly prolonged in order to gain more information, because the information the officers sought

**28 normally would be obtained through the search and not through the detention." Id. at 701.

The Court found that the detention in Summers was reasonable in view of the limited nature of the intrusion, the law enforcement interests discussed above, and the individualized suspicion of criminal activity created by the detainee's link to the home being searched. Id. at 705. The Court went so far as to adopt a general rule "that a warrant to search for contraband founded on proba- ble cause implicitly carries with it the limited authority

to detain the occupants of the premises while a proper search is conducted." Id. (footnote omitted). The Court did not decide, however, whether this rule would apply if the warrant authorized a search for evidence rather than contraband, if the detention was "prolonged," or if other

"special circumstances" existed. Id. at 705 nn.20-21.

In contrast to the circumscribed intrusion presented in Summers, the seizure involved in Dunaway v. New York "was in important respects indistinguishable from a traditional arrest." Dunaway, 442 U.S. at 212. Based on a tip that implicated Dunaway in a murder but did not provide probable cause for arrest, Dunaway **29 "was taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room,"

"where he was questioned by officers." Id. at 203, 212. He was never told that he was, nor was he, free to leave. Id. at 212. On the other hand, he was not booked or told that he was under arrest, and he would not have been arrested had the interrogation proved fruitless. Id. The Court declined to treat Dunaway's seizure as a narrow intrusion that could be justified by law enforcement inter- ests and individualized suspicion. Id. at 211-16. Instead, the Court concluded that Dunaway's detention without probable cause was unconstitutional, for "detention for custodial interrogation . . . intrudes so severely on inter- ests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest." Dunaway, 442 U.S. at 216.

The seizure of Dr. Leveto falls somewhere between the detentions in Summers and Dunaway. Like the de- tention in Summers, Dr. Leveto's initial seizure at *169 the hospital might be viewed as merely an incremental in- trusion, for the agents had a warrant to conduct a **30 pervasive search of his business, and it might be assumed that a manager would prefer to remain during the search. See Daniel, 808 F.2d at 1403.

However, other aspects of Dr. Leveto's detention were much more intrusive and resembled the detention in Dunaway. The length of Dr. Leveto's detention--a total of eight hours--is itself highly significant. Furthermore, during the entire eight-hour period, Dr. Leveto was re- stricted in communicating with others, and during the six-hour period after he was brought back to the hospi- tal from his home, he was interrogated. Furthermore, Dr. Leveto's detention at his place of business, in contrast to Summer's detention at home, arguably increased the stigma imposed by the agents' search, for it allowed co- workers to see how Dr. Leveto was being treated by the authorities and prevented Dr. Leveto from responding to client needs. Cf. Daniel, 808 F.2d at 1404 (suggesting that one could argue both that detention at one's business

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adds only minimally and that it adds significantly to the stigma of the search).

Moreover, Dr. Leveto's detention involved the incon- venience and indignity of a forced ride with IRS agents to his home **31 and back to his office. The Supreme Court recognized in Summers that HN22 a seizure is more intrusive if it "involves moving the suspect to an- other locale." Summers, 452 U.S. at 700 n.12 (quoting

3 Wayne R. LaFave, Search and Seizure § 9.2, at 36-

37 (1978)). Similarly, the Eighth Circuit has held that stopping someone three to five miles from his home and taking him back in handcuffs for the execution of a war- rant is far more intrusive than the detention involved in Summers. United States v. Hogan, 25 F.3d 690, 693 (8th Cir. 1994); United States v. Boyd, 696 F.2d 63, 65 n.2

(8th Cir. 1982) (noting that Summers "certainly did not sanction the search and seizure of residents who, at the time of the search, are several blocks from their home"). But see Cochran, 939 F.2d at 339-40 (finding that seizure and return of a resident who "had driven a short distance from his home" was valid under Summers).

Finally, while it is unclear exactly how long the pre- arrest detention lasted in Summers, the Court did not re- gard it as "prolonged," see 452 U.S. at 705 n.21, and Dr. Leveto's eight-hour detention undoubtedly qualifies as prolonged **32 under any reasonable understanding of that term. See Sharpe, 470 U.S. at 685 (recognizing the importance of brevity in appraising whether a seizure may be justified on less than probable cause); Baker, 50

F.3d at 1192 (recognizing that prolonged detention may ripen into an arrest).

As Dr. Leveto's detention was significantly more in- trusive than that in Summers, we might well conclude that Summers does not apply and that Dr. Leveto's seizure, like that in Dunaway, could be justified only on a show- ing of probable cause. See Dunaway, 442 U.S. at 211-

16 (rejecting invitation to apply balancing test for narrow intrusions and holding that probable cause must exist to justify "detention for custodial interrogation"); Summers,

452 U.S. at 700 ("The general rule is that every ar- rest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause."). But cf. United States v. Ritchie, 35

F.3d 1477, 1484 (10th Cir. 1994) (finding "no special circumstances showing that the intrusiveness of the . .

. detention was sufficiently severe to preclude applica- tion of **33 Summers" where suspect was detained as he was pulling out of *170 his driveway and held for limited time during search of his home); Bernstein v. United States, 990 F. Supp. 428, 441 (D.S.C. 1997) (citing Summers in holding that IRS agents who executed search warrants for evidence at home and business in approxi-

mately two and four hours, respectively, "had the limited authority to detain the occupants at the premises while conducting the search of the premises"). At this stage of the proceedings, there is no suggestion that probable cause existed to seize Dr. Leveto, and consequently, if probable cause is necessary, Dr. Leveto's seizure would violate the Fourth Amendment.

We need not decide whether probable cause was re- quired, however, because even under Summers' balanc- ing approach for less intrusive seizures, Dr. Leveto's de- tention, as alleged, was unreasonable. n6 We have al- ready discussed the great intrusion on Dr. Leveto's Fourth Amendment interests that resulted from the agents' al- leged conduct, and on the other side of the balance, it appears that Dr. Leveto's seizure did little to advance the law enforcement interests that were found to justify the detention in Summers. **34

n6 The Court in Summers adopted the gen- eral rule "that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Summers, 452 U.S. at 705 (footnote omitted); see id. at 705 n.19; Ritchie, 35 F.3d at 1482, 1483-

84. However, the Court explicitly acknowledged that this rule might not apply "if the search war- rant merely authorized a search for evidence," if the detention were prolonged, or if other special circumstances existed. 452 U.S. at 705 nn.20-

21. The search warrants at issue here both sought evidence rather than contraband. Moreover, both Dr. Leveto and Mrs. Leveto were detained for a prolonged period. Accordingly, we cannot assume that Summers' general rule automatically applies. Instead, we apply the analytical approach used in Summers, balancing law enforcement interests and individualized suspicion against the intrusiveness of the seizure, to determine whether the Levetos' detentions were constitutional. See Heitschmidt v. City of Houston, 161 F.3d 834, 838 (5th Cir. 1998)

(acknowledging that Summers rejected "a com- pletely ad hoc approach," but applying Summers' balancing approach where the detention at issue was more severe than that in Summers).

**35

A primary law enforcement interest served by such detention is the prevention of flight in the event that in- criminating evidence is found during the search. In this connection, the distinction between searches for contra- band and searches for evidence is material. It is not un- common for a search for contraband to produce items that

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justify an immediate arrest of the owner or resident of the premises, and a person who anticipates that a search may imminently result in his or her arrest has a strong incentive to flee. By contrast, a search for evidence--particularly complicated documentary evidence--is much less likely to uncover items that lead to an immediate arrest. Thus, even if the search is successful, the suspect may well remain at liberty for some time until the evidence is ex- amined and an indictment is obtained. As a result, the incentive to flee is greatly diminished.

In Dr. Leveto's case, the agents sought evidence of a suspected tax evasion scheme. A search of this type is unlikely to produce an immediate arrest, and in this case, although the agents allegedly seized thousands of pages of documents and many computer files, neither Dr. Leveto nor his wife was arrested. See **36 United States v. Schandl, 947 F.2d 462, 465 (11th Cir. 1991) (noting that

HN23 tax evasion is a crime that is "generally only de- tected through the careful analysis and synthesis of a large number of documents"). *171

Similarly, there was no compelling need to detain Dr. Leveto to protect the safety of the agents. HN24 If the agents had been conducting an investigation into a type of offense often accompanied by violence, detention for some length of time might have been reasonable. See Summers, 452 U.S. at 702; Torres, 200 F.3d at 185, 186

(quoting Summers, 452 U.S. at 702, for the proposition that narcotics searches may erupt in "sudden violence or frantic efforts to conceal or destroy evidence"); Baker, 50

F.3d at 1191 (noting that occupants of a residence sub- ject to a drug raid "are likely to be armed"); Barlin, 686

F.2d at 87 (noting "the violent nature of narcotics crime")

(quoting United States v. Vasquez, 634 F.2d 41, 43 (2d Cir. 1980)). By the same token, if the agents had pos- sessed information that the Levetos were tied to a violent group or had violent backgrounds, detention for some pe- riod might **37 have been justified. See Clay, 640 F.2d at 162 (knowledge that individual "previously had been engaged in serious criminal conduct" might justify pat down). Here, however, there is no evidence that such a threat existed. Dr. Leveto was under investigation for tax crimes, and the alleged facts do not suggest that he had any ties to violent organizations or a record of violence. Accordingly, it does not appear that there was any com- pelling safety reason for detaining him during the lengthy search.

Furthermore, Dr. Leveto's detention did little to ad- vance the interest in orderly completion of the search. The agents apparently did not rely on Dr. Leveto to open locked doors or containers during the course of the search. Similarly, since Mrs. Leveto was at the Levetos' home, there was no apparent need for Dr. Leveto to be present

at the home to provide access.

Nor was Dr. Leveto's extended detention necessary to prevent the destruction of evidence. We recognize that Dr. Leveto conceivably could have returned to his home and destroyed or concealed evidence or instructed his wife to do so if the agents had not detained him and restricted his ability to use the telephone. Cf. **38 Bernstein, 990

F. Supp. at 433 (IRS agents, who were executing war- rants at business and home, prevented suspect at business from calling girlfriend at home "due to safety and record destruction concerns."); Garavaglia v. Budde, 1994 U.S. App. LEXIS 36161, *9, 1994 WL 706769, at *3 & n.3 (6th Cir. 1994) (unpublished disposition) (noting that no au- thority was cited for "a clearly established right to make a telephone call . . . while being detained during a search pursuant to a warrant" and that "other circuits have sug- gested that no such right exists"). However, the warrants in this case were allegedly executed by a large group of agents, and thus it appears that the agents could have min- imized this presumed risk by executing the warrants at the hospital and home simultaneously, rather than waiting to take Dr. Leveto from the hospital to his home before ex- ecuting the warrant there. Moreover, once the searches of the home and hospital were both underway, the need to detain Dr. Leveto to prevent the loss of evidence was minimal. See United States v. Timpani, 665 F.2d 1, 2-

3 (1st Cir. 1981) (agents reasonably barred the detainee from leaving or calling anyone during the first 45 **39 minutes of a five-hour search "until other coordinated searches were underway" to prevent premature warning). Had Dr. Leveto attempted to disrupt the evidence at either site, the agents would have been present to intervene. Finally, it is not clear that the agents had a sufficient

"articulable and individualized suspicion" to justify even a brief detention of Dr. Leveto. Although the Supreme Court has found that HN25 such a *172 suspicion exists when law enforcement officers have a valid warrant to search a home for contraband and the detainee is an occupant of the home, the Court has also noted that the same may not be true if the search warrant merely seeks evidence. See Summers, 452 U.S. at 703-05 & n.20. The Eleventh Circuit has addressed this issue and held that

HN26 the rationale justifying detention based on the oc- cupant's connection to the premises "is not applicable to a search for evidence, because the existence of mere evi- dence, as opposed to contraband, on the premises does not suggest that a crime is being committed on the premises." Daniel, 808 F.2d at 1404; see also Ritchie, 35 F.3d at

1483 (recognizing "that in some instances the existence of **40 a warrant based on probable cause would not" provide an individualized suspicion of criminal activity); United States v. Rowe, 694 F. Supp. 1420, 1424 & n.2

(N.D. Cal. 1988) (recognizing "that a search for evidence

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will rarely give rise to an individualized suspicion that the occupant is committing a crime on the premises," but noting exceptions to this rule). We agree with this reason- ing as a general rule. In sum, even applying the balancing test used in Summers, Dr. Leveto's lengthy detention, as alleged in the Complaint, was not reasonable and consti- tuted a violation of his Fourth Amendment rights.

Mrs. Leveto has likewise stated a claim of unreason- able seizure based on her lengthy detention. Mrs. Leveto's detention did not exhibit many of the characteristics of an arrest that were manifest in Dr. Leveto's seizure. However, her detention was distinguishable from the detention in Summers in that she was detained for a prolonged pe- riod--approximately 6 hours--during a search for evi- dence. Accordingly, her seizure appears to have been sig- nificantly more intrusive than that in Summers.

On the other side of the balance, the law enforcement interests that might justify **41 her detention were less weighty than were the law enforcement interests in Summers. As with Dr. Leveto, the interest in preventing flight was minimal, and the risk of harm to the agents was smaller than it is in cases, such as Summers, in which the crime under investigation is one that is often associated with violence and in which the search may well result in an immediate arrest. Cf. Summers, 452 U.S. at 702. Nor do the allegations in the Complaint suggest that Mrs. Leveto's presence advanced the orderly completion of the search.

Because Mrs. Leveto's detention was more intrusive than that in Summers but was not supported by command- ing law enforcement interests or individualized suspicion, we conclude that the ruling in Summers does not extend to Mrs. Leveto's seizure. Her seizure could only be justified on probable cause. Since there is no suggestion that the agents had probable cause to detain Mrs. Leveto, we hold that Mrs. Leveto has stated a claim for unconstitutional detention.

Again, however, we are compelled to conclude that a reasonable agent could have believed, in light of the case law at the time, that the detentions of Dr. Leveto and Mrs. Leveto were **42 lawful.

Because Dr. Leveto's experience fell somewhere be- tween the situations in Dunaway and Summers, a rea- sonable officer could have concluded that Dr. Leveto's detention would be governed by the Summers' holding. As noted, the Court in Summers adopted the general rule

"that HN27 a warrant to search for contraband founded on probable cause implicitly carries with it *173 the limited authority to detain the occupants of the premises while a proper search is conducted." Summers, 452 U.S.

at 705 (footnote omitted). While the Court did not ex- tend this rule to cases involving searches for evidence or cases featuring prolonged detention, the Court also did not foreclose such extensions. See id. at 705 n.20 ("We do not decide whether the same result would be justi- fied if the search warrant merely authorized a search for evidence."); id. at 705 n.21 ("Special circumstances, or possibly a prolonged detention, might lead to a different conclusion in an unusual case . . . ."). Nor did the Court decide whether transporting a suspect would change the result. See id. at 700 n.12 ("Moving the suspect to another locale" "might cast doubt upon the reasonableness **43 of the Terry-type detention."). After Summers, other courts acknowledged, but did not resolve, these issues. See Torres, 200 F.3d at 185 (Supreme Court indicated in Summers, 452 U.S. at 705 n.21, that detention might be unlawful "in an 'unusual case' involving 'special circum- stances, or'" if prolonged); Pecsi v. Doyle, 1991 U.S. App. LEXIS 17828, *5 n.1, 1991 WL 137597, at *2 n.1 (6th Cir.

1991) (unpublished disposition) (leaving "a definitive res- olution of the evidence/contraband distinction for another day"); Rowe, 694 F. Supp. at 1424-25 (applying Summers' reasoning to a search for evidence, but declining to sug- gest "a blanket extension of the Summers rule to all cases involving searches for evidence"). Moreover, lower courts suggested that rather lengthy detentions would fall within Summers' purview. See Daniel, 808 F.2d at 1405 ("Since the dissenters in Summers expressly raised the point, the Summers majority apparently appreciated that the con- cept of detention during searches of premises entails the prospect of detentions lasting several hours."); Rowe, 694

F. Supp. at 1424 ("Although the Summers Court did not define the duration **44 of permissible detention, it ap- parently contemplated that occupants could be detained long enough for police to complete extensive searches."). Moreover, dicta in opinions of this Court and others oc- casionally described the scope of the authority to detain pursuant to Summers in sweeping terms. See Torres, 200

F.3d at 185 ("The Supreme Court has held that officers executing a search warrant lawfully may restrain persons present at the searched premises."); Baker, 50 F.3d at

1191 ("Under Michigan v. Summers, during execution of a search warrant, police can detain the occupant of the house they have a warrant to search.") (citation omitted); Rivera, 928 F.2d at 606 ("Absent special circumstances, the police of course have the authority to detain occupants of premises while an authorized search is in progress, re- gardless of individualized suspicion."). Accordingly, at the time the agents acted, the breadth of the Summers rule was highly uncertain.

In light of this uncertainty, a reasonable officer could have concluded that the extended detention of Dr. Leveto, including his conveyance to and from his home, was an ap-

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propriate incident to the execution **45 of the warrant at the hospital. See Wilson, 526 U.S. at 617 ("Given such an undeveloped state of the law, the officers in this case cannot have been 'expected to predict the future course of constitutional law.' ") (quoting Procunier v. Navarette,

434 U.S. 555, 562, 55 L. Ed. 2d 24, 98 S. Ct. 855 (1978)). Similarly, a reasonable officer could have concluded that the Summers rule would govern Mrs. Leveto's detention at home, rendering her detention lawful. See Summers,

452 U.S. at 705 n.19.

We are therefore required to hold that the agents were entitled to qualified immunity on the Levetos' unreason- able seizure *174 claims. Our holding is consistent with those of other courts. See Daniel, 808 F.2d at 1403-05

(finding defendant agents entitled to qualified immunity where law was uncertain as to permissible length of deten- tion and applicability of Summers to searches for evidence rather than contraband); Garavaglia, 1994 WL 706769, at

*2-*3 (qualified immunity properly granted to IRS agent on claim of unconstitutional, six-hour detention at busi- ness premises pursuant to search warrant for evidence of tax evasion as neither Supreme **46 Court nor Sixth Circuit had determined whether Summers would apply to search for evidence, rather than contraband). But cf. Heitschmidt, 161 F.3d at 839 (recognizing that Summers did not decide whether probable cause was necessary for detention pursuant to a search for evidence, declining to give the law enforcement interests identified in Summers any significant weight, and denying qualified immunity at the pleading stage on plaintiff's unreasonable detention claim); Mena v. City of Simi Valley, 226 F.3d 1031, 1039-

41 (9th Cir. 2000) (where officers may have exceeded scope of proper search and thereby extended length of detention, denial of qualified immunity at summary judg- ment stage was proper); Pecsi, 1991 WL 137597, at *3

(Because the Sixth Circuit could not tell at the summary judgment stage whether "a five to six hour detention was unduly prolonged when the items listed in the affidavit may well have been in plain view" and because "clearly established law requires that 'the officers remain on the premises only so long as is reasonably necessary to con- duct the search,' " the defendants were not yet entitled to qualified immunity.). **47

Having concluded that the District Court properly dis- missed the claims arising from the Levetos' pat down and detention, we address one final claim. In their Complaint, the Levetos allege that the closure of Dr. Leveto's business during the search violated the Fourth Amendment. To the extent that this claim relies on the restrictions placed on Dr. Leveto, those restrictions were considered in finding that his detention was unreasonable. At this point, we fo-

cus on whether the overall interference with the hospital's operation led to an unreasonable search. We have located little authority directly on point.

One district court, however, has addressed the issue. In Bernstein v. United States, IRS agents simultaneously executed search warrants at the home and business of a man suspected of filing false tax returns. Bernstein, 990

F. Supp. at 432. At the business--a delicatessen--"all cus- tomers or employees were asked to leave and the business was closed for the duration of the four-hour search." Id. at 432, 433. According to a declaration submitted in the case, closure was "the established procedure in search warrants involving businesses open to the **48 pub- lic." Id. at 432. The court found that plaintiff had failed to state a claim based on closure of the business because

"there is certainly no constitutional right to not have fed- eral agents temporarily close a business site pursuant to a search warrant in a criminal investigation." Id. at 437; see also id. at 441 ("There is no constitutional right to have an investigative agency conduct a criminal search after business hours or at a more convenient time."); O'Ferrell v. United States, 968 F. Supp. 1519, 1535 (M.D. Ala.

1997) (noting in the context of the discretionary function exception to federal tort liability that "constitutional law does not specifically prohibit" the closing of a business during a search). Thus, "the fact that the customers were requested to leave and that the site was temporarily closed

did not pose constitutional *175 issues." Bernstein,

990 F. Supp. at 441.

We do not agree with the Bernstein court's analysis. For present purposes, we must assume that the sole au- thority upon which the defendants in this case relied when they restricted the normal operation of the veterinary hos- pital was the authority **49 conferred by the warrants that they were executing, and those warrants merely au- thorized the defendants to search for and seize evidence of certain federal crimes. It necessarily follows that any authority that the defendants possessed to restrict the op- eration of the veterinary hospital derived from the author- ity to search for and seize the evidence in question and that the scope of their authority to restrict the hospital's operation was no broader than was necessary to permit the search and seizure to be carried out in an effective, safe, and reasonably expeditious fashion. There may be circumstances in which a search warrant for a place of business cannot be executed properly unless the business is entirely shut down for at least a brief time, but the al- legations of the Complaint do not establish the existence of such circumstances. Consequently, we hold that the closure of the hospital, as alleged in the Complaint, was unlawful.

Once again, however, we are constrained to hold that

258 F.3d 156, *175; 2001 U.S. App. LEXIS 15933, **49;

2001-2 U.S. Tax Cas. (CCH) P50,536; 88 A.F.T.R.2d (RIA) 5786

Page 14

the defendants are entitled to qualified immunity. The un- lawfulness of shutting down a business simply because a search warrant was being executed on the premises was not clearly established at the **50 time of the search in this case and, indeed, as noted, the scant authority on this point appeared to support the lawfulness of the defen- dants' conduct. Cf. Wilson v. Layne, 141 F.3d 111, 115-

16, 118-19 & n.11 (4th Cir. 1998) (finding officers enti- tled to qualified immunity where the law was not clearly established and officers could have believed their conduct justified by legitimate law enforcement interests), aff'd,

526 U.S. 603, 617, 618, 143 L. Ed. 2d 818, 119 S. Ct.

1692 (1999) (affirming grant of qualified immunity given

"undeveloped state of the law"); Enlow v. Tishomingo County, 1990 U.S. Dist. LEXIS 20989, 1990 WL 366913, at *9 (N.D. Miss. 1990) (Where officials seized a business

"for five days because they thought the premises was the site of illegal gambling," qualified immunity was avail- able because "a reasonable officer could have thought probable cause existed.").

VI.

Because this case comes to us on appeal from a dis- missal under Fed. R. Civ. P. 12(b)(6), we know only what the plaintiffs allege that the defendants did when the war- rants were executed; we have no idea what facts would have emerged if we knew the defendants' side of the story

or if the case had **51 been tried. However, if the plain- tiffs' allegations are true, the warrants in this case were ex- ecuted in a manner that violated the Fourth Amendment. Nevertheless, because of uncertainty in the case law at the time of the events in question, we affirm the decision of the District Court on qualified immunity grounds. See Brown v. Grabowski, 922 F.2d 1097, 1118-19 (3d Cir. N.J. 1990) (recognizing that the clearly established re- quirement "may produce distressing results," but finding defendants entitled to qualified immunity).

JUDGMENT

This cause came on to be heard on the record from the United States District Court for the Western District of Pennsylvania and was argued on October 26, 2000.

On consideration whereof, it is now here ordered and adjudged by this Court that the order of the District Court dated Feruary 5, 2000, be and the same is affirmed. Each party to bear its costs.

ATTEST: Kathleen Browner Acting Clerk

Dated: July 17, 2001

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