Torres v. United States

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

12-29-1999

Torres v. United States

Precedential or Non-Precedential:

Docket 99-1024

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Filed December 29, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1024

JUAN ANGEL TORRES; ROSA MARIA DOMINGUEZ; and

ROSA MARIA TORRES, a minor, by her parents and

natural guardians Juan Angel Torres and Rosa Maria

Dominguez

v.

UNITED STATES OF AMERICA; DRUG ENFORCEMENT

ADMINISTRATION; MATTHEW DONAHUE; MARTIN

CAPLAN; MAUREEN KELLY; JOSEPH CAPONE; and

JONATHAN COHEN

Matthew Donahue; Martin Caplan; Maureen Kelly; Joseph

Capone; and Jonathan Cohen,

Appellants

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 97-5804)

District Judge: Honorable Ronald L. Buckwalter

Argued November 4, 1999

BEFORE: BECKER, Chief Judge, and GREENBERG

and CUDAHY,* Circuit Judges

(Filed: December 29, 1999)

_________________________________________________________________

* Honorable Richard D. Cudahy, Senior Judge of the United States Court

of Appeals for the Seventh Circuit, sitting by designation.

David W. Ogden

Acting Assistant Attorney General

Susan Shinkman

Office of the United States Attorney

Michael R. Stiles

United States Attorney

Barbara L. Herwig

Katherine S. Gruenheck (argued)

Appellate Staff

United States Department of Justice

Civil Division, Appellate Staff

601 D Street, N.W.

Washington, DC 20530-0001

Attorneys for Appellants

Richard Edmund Patton (argued)

2729 River Road

New Hope, PA 18938

Attorney for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

A. Factual Background

This matter comes on before this court on appeal from

the district court's order partially denying appellants'

motion seeking summary judgment on qualified immunity

grounds. The appellants are Drug Enforcement

Administatration ("DEA") agents who applied for a search

warrant for the appellees' residence and executed the

warrant the next day. The issues on appeal relate to the

execution of the warrant. The search was an aspect of an

extensive DEA investigation into a large cocaine distribution

ring reputedly run by Geraldo Nieves. During the

investigation, the DEA secured the cooperation of Blake

O'Farrow, who had been a participant in the Nieves ring.

O'Farrow informed DEA Special Agent Matthew Donahue in

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September and November 1996, and again in January

1997, that Nieves was using a house at 3936 North Fifth

Street in Philadelphia for storing, cutting, and bagging

cocaine.

Based on the information obtained from O'Farrow, as well

as other information secured during the investigation of the

Nieves ring, Donahue prepared a probable cause affidavit

and submitted it to a magistrate judge on January 30,

1997. That day, the magistrate judge signed a warrant

authorizing a search of "the property known as 3936 N. 5th

Street, Philadelphia, PA" for "[c]ocaine, packaging materials,

dilutents [sic], plastic packaging slips, heat sealer, scales,

and a vice [sic]."

At approximately 6:00 a.m. on the next day, DEA Agents

Martin Caplan, Maureen Kelly, Joseph Capone, and

Jonathan Cohen went to 3936 North Fifth Street to execute

the warrant.1 Donahue, however, did not go to the premises

with the other agents. The occupants of the house were

asleep when the agents arrived but appellee Rosa Maria

Dominguez awoke to the sound of metal rattling. She went

back to sleep only to reawaken to the sound of knocking

and the agents' voices identifying themselves. Appellee

Juan Angel Torres, who was sleeping in the same room,

awoke and looked out the window where he saw people

wearing DEA jackets. Dominguez (who put on a robe) and

Torres (who wrapped himself in a towel) then went

downstairs and looked out a ground floor window. Torres

attempted to signal to the agents that Dominguez would

open the door, but they nevertheless broke through the

door with a battering ram.

The agents entered the home, pointed their guns at

Torres and Dominguez, and ordered them to lie on the

floor. The agents placed Torres but not Dominguez in

handcuffs. The agents asked whether there were any

weapons in the house, and Torres told them the location of

two firearms in his bedroom. After he had been on the floor

for about five minutes, Torres, still clad in his towel, was

_________________________________________________________________

1. The factual record relating to the execution of the warrant derives

largely from the appellees' depositions as the appellees did not depose

the agents.

3

helped to the living room couch. Dominguez then was

permitted to attend to the couple's two children upstairs.

The agents did not point their guns at anyone after the

initial entry.

The agents searched the entire premises. In their

deposition testimony, Torres and Dominguez gave wide

estimates for the duration of the search, varying from one

and one-half to three hours. During this time, Torres (who

remained handcuffed), Dominguez, and the children sat

together on the couch. At some point, the agents permitted

Dominguez to make breakfast for the children, and, in

Torres's words, the children received nothing but"nice

comments" from the agents. Eventually, the agents removed

the handcuffs and allowed Torres to get dressed so that he

could escort the agents to the building where he worked.2

The agents did not find drugs or drug paraphernalia in

the home. They, however, seized several items, including a

Glock 9mm semiautomatic handgun, a Ruger .357

magnum revolver, ammunition for those two weapons plus

ammunition for a third weapon which they did not locate,

a roll of plastic tape, and various papers, including

earnings statements, phone cards, and a gas bill. These

items were returned to appellees within five days.

B. Procedural History

Appellees filed their complaint in the district court on

September 16, 1997. Ultimately, after amendments, the

appellees asserted that they were entitled to recover under

the Federal Tort Claims Act and directly under the

Constitution for Fourth and Fifth Amendment violations

with respect to the issuance and execution of the warrant.

See Bivens v. Six Unknown Agents of the Fed. Bureau of

Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Following

discovery, the agents moved for summary judgment, and

the district court partially granted their motion analyzing

the appellees' claims under the Fourth Amendment alone.

_________________________________________________________________

2. According to appellees' amended complaint, after the agents completed

the search of appellees' home, they conducted a warrantless search of

property owned by "plaintiff 's father."

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The district court held that appellees failed to allege a

constitutional violation with respect to the agents' conduct

up to and including the initial entry into appellees' home.

In this regard, the court first determined that there was

probable cause for the issuance of the warrant. The court

then found that the agents had no reason to believe that

they were executing the warrant at the wrong location. In

so ruling, the court declined to place any significance in the

fact that the warrant misdescribed the color of the front

door of the home as the court found that this mistake was

"trivial" given that the warrant otherwise described

appellees' home accurately. The court then ruled that the

agents acted lawfully in using a battering ram to break

down the front door.

The district court, however, refused to grant summary

judgment to the agents with respect to their conduct once

they entered the home. Although the court found that their

treatment of Dominguez and the children was "reasonable,

and indeed, duly considerate under the circumstances," the

court was "unable to find that the agents' conduct . . . was

reasonable and not excessive" with respect to Torres's

handcuffing for the duration of the search.

The court then concluded that the agents exceeded the

scope of the warrant when they searched the appellees'

entire home rather than just the basement. Although the

warrant specifically authorized a search of "the property

known as 3936 N. 5th Street, Philadelphia, PA," the court

determined that the warrant was "circumscribed" by the

supporting probable cause affidavit, which stated that

cocaine was stored in the basement. The court then

indicated, however, that it was "possible" that exigent

circumstances (specifically, the presence of weapons and

ammunition) justified a broader search of the entire home.

Overall the district court's memorandum opinion is

ambiguous with respect to its disposition of the agents'

motion for summary judgment on the basis of qualified

immunity for their conduct in searching beyond the

basement. The court may have intended to grant the agents

summary judgment based on its finding of exigent

circumstances, but its use of the word "possible" suggests

that the court found a factual issue for trial and hence

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denied summary judgment. Indeed, even the agents are

uncertain as to how the court ruled for they explain in their

reply brief that the "district court appears to have found

that the scope of the search was probably supported by

exigent circumstances, but reserved judgment." Reply br. at

4 n.2.3 Moreover, the agents in their opening brief defended

the validity of the search to the extent that it went beyond

the basement. Plainly, they would have had no reason to

brief that issue if they had been granted summary

judgment on it. In the circumstances, we conclude that the

district court denied summary judgment with respect to

appellees' claims that the search unconstitutionally

exceeded the scope of the warrant.

The district court further ruled that the agents acted

unlawfully by seizing items not specifically listed in the

warrant. The district court later reconsidered this ruling,

however, and in an order of January 5, 1999, granted

summary judgment in the agents' favor as to the seizure of

items from appellees' home.

The court also addressed appellees' allegation that the

agents "destroy[ed] doors, ripp[ed] out ceilings and walls

and overturn[ed] clothes and toys" during the search. The

court found no evidence in the record to support this

allegation, but refused to grant the agents summary

judgment on the issue because their motion papers did not

specifically address the property damage claim. Finally, the

court held that appellees lacked standing to maintain any

claims with respect to warrantless searches of other

properties (specifically, Torres's place of employment and

property belonging to Torres's father) which allegedly took

place on the day in question.

Agents Donahue, Caplan, Kelly, Capone, and Cohen,

_________________________________________________________________

3. Actually, the agents hedge on the point as they also contend that the

district court "granted qualified immunity and ruled in favor of the

defendants on all but two of [appellees' constitutional] claims: the

duration of the restraint of Torres, and excessive damage to the

residence." Reply br. at 2. It appears that the agents quite naturally

would like to read the district court's opinion as granting them qualified

immunity on the scope of the search issue but are unwilling to forego

briefing the issue.

6

appeal to the extent that the district court denied them

summary judgment on the basis of qualified immunity. In

particular, the question they present is whether the district

court should have granted qualified immunity to them with

respect to the following aspects of their conduct in

executing the search warrant: (1) leaving Torres handcuffed

for the duration of the search; (2) searching the entire

premises rather than just the basement; and (3) causing

excessive damage to the walls, ceilings, and other items in

the home.4

II. JURISDICTION and STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C.

SS 1331 and 1346 and we have jurisdiction to hear this

appeal under 28 U.S.C. S 1291 pursuant to the collateral

order doctrine, as applied to qualified immunity cases. See

Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806 (1985).

We exercise plenary review over the district court's denial of

summary judgment on qualified immunity grounds. See

Abbott v. Latshaw, 164 F.3d 141, 145 (3d Cir. 1998), cert.

denied, 119 S. Ct. 2393 (1999).

Under the doctrine of qualified immunity, "[g]overnment

officials performing discretionary functions are`shielded

from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.' "

Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.

2727, 2738 (1982)); In re City of Philadelphia Litig., 49 F.3d

945, 961 (3d Cir. 1995). The inquiry when a defendant

claims qualified immunity is "whether a reasonable officer

could have believed that his or her conduct was lawful, in

light of the clearly established law and the information in

the officer's possession." Sharrar, 128 F.3d at 826. Officers

who "reasonably but mistakenly" conclude that their

_________________________________________________________________

4. The appellees have challenged the district court's decision to the

extent that it granted the agents summary judgment but those issues

are not before us on this appeal. The district court partially granted and

partially denied the government's motion for summary judgment on the

Tort Claims Act issues but those dispositions as well are not before us.

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conduct is lawful are thus entitled to immunity. Id. A court,

however, need not consider whether the right implicated

was clearly established at the time of the events in question

if the plaintiff has not alleged a deprivation of a

constitutional right. See Wilson v. Layne, 119 S.Ct. 1692

(1999); County of Sacramento v. Lewis, 523 U.S. 833, 841

n.5, 118 S.Ct. 1708, 1714 n.5 (1998); Siegert v. Gilley, 500

U.S. 226, 111 S.Ct. 1789 (1991); Larsen v. Senate of Pa.,

154 F.3d 82, 86 (3d Cir. 1998), cert. denied, 119 S.Ct. 1037

(1999).

III. DISCUSSION

A. Handcuffing of Torres

The first question before us is whether the agents acted

lawfully in their treatment of Torres during the execution of

the search. If they did, then they were entitled to qualified

immunity because the appellees would not have "alleged a

deprivation of a constitutional right at all." Lewis, 523 U.S.

at 841 n.5, 118 S.Ct. at 1714 n.5.

The Supreme Court has held that officers executing a

search warrant lawfully may restrain persons present at the

searched premises. See Michigan v. Summers, 452 U.S.

692, 705, 101 S.Ct. 2587, 2595 (1981) ("[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.")

(footnotes omitted). In Summers, the Supreme Court noted

that a warrant to search for narcotics "may give rise to

sudden violence or frantic efforts to conceal or destroy

evidence," and thus the risk of harm to officers and

occupants alike "is minimized if the officers routinely

exercise unquestioned command of the situation." Id. at

702-03, 101 S.Ct. at 2594. The Supreme Court indicated

that the officers might exceed their proper authority in an

"unusual case" involving "special circumstances, or

possibly a prolonged detention," but the "routine" detention

of residents while a search is conducted is constitutional.

Id. at 705 n.21, 101 S.Ct. at 2595 n.21.

Further, case law has indicated that at least in certain

circumstances officers lawfully may handcuff the occupants

8

of the premises while executing a search warrant. In United

States v. Fountain, 2 F.3d 656 (6th Cir. 1993), officers

executing a search warrant for narcotics and firearms

handcuffed the occupants of the house and forced them to

lie face down on the floor while they conducted the search.

Id. at 659-60. The Court of Appeals for the Sixth Circuit

held that the detention was reasonable under the Fourth

Amendment:

When occupants of a residence are detained during

the execution of a search warrant, the circumstances

ordinarily will justify more intrusive behavior by the

police than in a typical on-the-street detention. When

the ATF agents entered Fountain's home pursuant to

the warrant to search for narcotics, they faced a

confined, unfamiliar environment that was likely to be

dangerous. [The occupants] were handcuffed and

forced to lie face down on the living room floor while

the search was conducted. Concern for safety of the

agents and the need to prevent disposal of any

narcotics on the premises, justified the restraint of the

occupants, particularly under the circumstances of this

case, where the search was part of a narcotics

investigation and weapons had been seized from the

home just one month earlier. The `character' of the

intrusion on [the occupants] and its `justification' were

reasonable and proportional to law enforcement's

legitimate interests in preventing flight in the event

incriminating evidence is found and in minimizing the

risk of harm to officers. Those concerns plainly

outweighed the intrusion experienced by [the

occupants] in being required to be on the living room

floor while the search was completed. . . .

Id. at 663; see also Van Brackle v. Parole Bd., No. Civ. A.

96-2276, 1996 WL 544229, at *2 (E.D. Pa. Sept. 26, 1996)

(holding that the detention of an occupant in handcuffs

during a search was lawful) (citing Fountain).

On the other hand, handcuffing may be excessive in

certain circumstances. In Franklin v. Foxworth, 31 F.3d 873

(9th Cir. 1994), the court held that officers executing a

warrant violated the Fourth Amendment when they carried

a seriously disabled man from his bed and left him

9

handcuffed on a couch for over two hours with nothing to

cover the lower half of his body. Id. at 874-78. Though the

man complained that his handcuffs hurt and that he was

cold, the officers waited an hour before adjusting the cuffs

and giving him a blanket. Id. at 882 (Brunetti, J.,

concurring). The Court of Appeals for the Ninth Circuit

labeled the officers' conduct "wanton[ ] and callous[ ]" and

found that this was an example of the "unusual case"

envisioned by Summers. Id. at 876-78. Accordingly, the

court reversed a bench trial judgment in favor of the

officers. Id. at 874. Moreover, in a concurring opinion, one

judge stated that the officers' conduct was so egregious as

to preclude any claims of qualified immunity on remand. Id.

at 878-80 (Reinhardt, J., concurring).

In Baker v. Monroe Township, 50 F.3d 1186 (3d Cir.

1995), we indicated that officers acted excessively when

they handcuffed a mother and her teenage children who

happened to be approaching a residence for a social visit

when the officers arrived to execute a search warrant. See

id. at 1192-94. The plaintiffs claimed that the officers left

them handcuffed for 25 minutes and pointed guns at them.

Id. at 1189, 1192-93. Noting that the "use of guns and

handcuffs must be justified by the circumstances," id. at

1193, we reversed a summary judgment in favor of an

officer, holding that a Fourth Amendment violation could be

established if the plaintiffs' allegations regarding their

treatment were true. See id. at 1192-94 ("[T]he appearances

were those of a family paying a social visit . . .[T]here is

simply no evidence of anything that should have caused the

officers to use the kind of force they are alleged to have

used.").5

Viewing the facts in the light most favorable to appellees,

we are of the view that the agents' treatment of Torres was

_________________________________________________________________

5. Baker did not present a qualified immunity issue. Rather, the district

court had granted summary judgment in favor of an officer on the

ground that there was insufficient evidence to establish that he had

participated in or had knowledge of the treatment the plaintiffs suffered.

Baker, 50 F.3d at 1189. We reversed, holding that the plaintiffs'

testimony, if true, would support a Fourth Amendment claim against the

officer. See id. at 1192-94.

10

lawful.6 The agents left Torres on the floor for only five

minutes, and then helped him to the couch, where he still

had his towel to cover himself. Moreover, the agents

permitted Dominguez and the children to sit with Torres

while the search was conducted. The agents directed"nice

comments" to the children, and they permitted Dominguez

to prepare breakfast for the children. The agents also

permitted Dominguez to call her supervisor to say that she

would be missing work. The agents loosened Torres's

handcuffs after he twice indicated to them that they were

too tight. The agents did not point their guns after the

initial moments following their entry into the home, and

Torres testified that the agents "didn't harm any of us."

Further, the duration of the search was not excessive under

the circumstances, given the size of the home (two stories

plus a basement).

On these facts, the agents' conduct is far from analogous

to the excessive behavior of the officers in Franklin and

Baker. As the Supreme Court indicated in Summers, the

execution of a narcotics search warrant "may give rise to

sudden violence or frantic efforts to conceal or destroy

evidence," and thus officers are entitled to"routinely

exercise unquestioned command of the situation."

Summers, 452 U.S. at 702-03, 101 S.Ct. at 2594. The

agents had good reason to fear violence or destruction of

evidence as they entered the appellees' home because they

had cause to believe that the premises was a key location

in a large-scale cocaine ring. Further, Torres informed the

agents in the initial moments of the search that there were

two weapons in the home. Moreover, the agents retrieved

firearms, a Glock 9mm semiautomatic and a Ruger .357

magnum, which might be associated with a violent drug

operation. The officers also found ammunition for a third

type of firearm that they did not locate during their search

but which they feared might be present.

_________________________________________________________________

6. We note that determining whether officers have used excessive force is

a fact-specific inquiry, taking into account such factors as the severity

of

the crime, any threat to officer safety, any active resistance, and any

injury resulting to the person restrained. See Mellott v. Heemer, 161 F.3d

117, 122 (3d Cir. 1998), cert. denied, 119 S.Ct. 2051 (1999).

11

The circumstances confronting the agents were such that

they had reason to be concerned for their safety.

Accordingly, we conclude that the agents acted lawfully in

their treatment of Torres. Therefore, they are entitled to

qualified immunity with respect to claims regarding that

treatment.

B. Extent of the Search

The second question before us is whether the agents

acted lawfully in searching beyond the basement of the

home. If they did, then they were entitled to qualified

immunity on this claim as well because the appellees would

not have "alleged a deprivation of a constitutional right at

all." Lewis, 523 U.S. at 841 n.5, 118 S.Ct. at 1714 n.5.

The warrant authorized a search of "the property known

as 3936 N. 5th Street, Philadelphia, PA." Although the

probable cause affidavit stated that Nieves stored cocaine in

five-gallon cans in the basement of the premises, the

affidavit recited other items the location of which were not

expressly limited to any particular portion of the building.

The affidavit stated that "[w]hile inside the premises with

NIEVES in January, 1996" the confidential informant saw

"diluents [sic], a scale, a heat sealer for the packages of

cocaine, and a vise which NIEVES used to crush the

hardpacked cocaine." Furthermore, according to the

affidavit, Nieves repeatedly told the confidential informant

that he was continuing to use 3936 North Fifth Street to

store and package cocaine, and the informant saw Nieves's

truck parked outside the building on January 3, 1997, just

a few weeks before the search warrant was executed.

The Supreme Court has stated that "[a] lawful search of

fixed premises generally extends to the entire area in which

the object of the search may be found." United States v.

Ross, 456 U.S. 798, 820, 102 S.Ct. 2157, 2170 (1982). In

this regard, we point out that courts specifically have held

that a warrant encompasses the authority to search the

entire building if the person who is the target of the search

has access to or control over the entire premises. See, e.g.,

United States v. Butler, 71 F.3d 243, 249 (7th Cir. 1995)

(where a building is being used as a single unit,"a finding

of probable cause as to a portion of the premises is

12

sufficient to support a search of the entire structure"; a

search of the entire premises is permitted where the target

of the investigation "exercised `dominion and control' over

the entire building or had access to the entire structure")

(citation omitted); United States v. Whitten, 706 F.2d 1000,

1008 (9th Cir. 1983) ("[A] warrant may authorize a search

of an entire street address while reciting probable cause as

to only a portion of the premises if they are occupied in

common rather than individually, if a multiunit building is

used as a single entity, if the [alleged wrongdoer] was in

control of the whole premises, or if the entire premises are

suspect."); see also 2 Wayne R. LaFave, Search and Seizure

S 4.5, at 41 (3d ed. Supp. 1999) ("The obvious point is that

when a resident apparently has the run of the premises,

there is no reason to conclude that the warrant must be

limited to the precise spot where the items sought

happened to be when observed on a prior occasion."); cf.

Jackson v. Byrd, 105 F.3d 145 (3d Cir.) (habeas corpus

petition denied in controlled substance constructive

possession case where lessee-petitioner had access and

control over all areas of an apartment even though the

substance was found in a bedroom occupied by petitioner's

brother), cert. denied, 520 U.S. 1268, 117 S.Ct. 2442

(1997).

The building at 3936 North Fifth Street was not a multi-

unit premises with separate areas controlled by separate

residents. Rather, it was a traditional two-story home with

bedrooms upstairs, a dining room and kitchen downstairs,

and a basement accessible through the dining room.

Accordingly, the warrant authorized the search of the entire

building and the appellees did not allege a violation of a

constitutional right at all on the scope of the search claim.

Therefore, the agents are entitled to qualified immunity on

that claim.

In reaching our result, we recognize that the appellees'

amended complaint with respect to the scope of the search

is very general, as it merely alleges that the agents

"conducted an excessive and unreasonable search."

Nevertheless, we are of the view that a plaintiff by a

generalized pleading should not be deemed to have alleged

a deprivation of a constitutional right so as to defeat a

13

claim of immunity when an inquiry into the undisputed

facts demonstrates that there is no basis for the claim.

After all, the Supreme Court in Anderson v. Creighton, 483

U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39 (1987), made it

clear that when an officer claims immunity on the ground

that he or she did not violate a clearly established

constitutional or statutory right of which a reasonable

person would have known the plaintiff 's claim must be

considered in a specific context rather than in an abstract

generalized sense. We think that the same standard must

be applied in determining whether a plaintiff has alleged a

violation of a constitutional right in the first place.

C. Damage to the Home

The district court found that there was no evidence to

support appellees' allegation that the agents caused

excessive damage to doors, ceilings, walls, and other

property inside the home, but nevertheless declined to

grant summary judgment because the agents' motion

papers did not specifically address the property damage

claim. We are constrained to dismiss the appeal insofar as

it relates to this claim because we are without power to

inquire into the sufficiency of a plaintiff 's evidence on an

appeal from a denial of qualified immunity. See Johnson v.

Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 2156 (1995).

Despite the district court's view, we find that on the record

before us there are questions of fact relating to the

allegation that the agents caused excessive damage once

inside the premises. While we do not foreclose the agents

from making another motion for summary judgment on the

point, see Behrens v. Pelletier, 516 U.S. 299, 306-11, 116

S.Ct. 834, 838-41 (1996), as the record now stands, the

appellees' claim with respect to excessive damage must be

resolved at trial. We do point out, however, that because it

could be anticipated that contraband would be secreted, a

reasonable officer would believe that at least in some

circumstances he or she would not violate clearly

established constitutional or statutory rights of which a

reasonable person would have known in damaging a

premises in executing a search warrant.

D. Agent Donahue

While the district court believed that Donahue was

present when the warrant was executed, the parties agree

14

that he was not there. Accordingly, Donahue is entitled to

qualified immunity as to all of appellees' claims arising

from the execution of the warrant. Of course, this

conclusion takes him out of the case, as the district court

found that the appellees failed to allege a constitutional

violation up to and including the agents' initial entry into

the appellees' home.

IV. CONCLUSION

Donahue is entitled to qualified immunity with respect to

each of the claims at issue on this appeal. The other agents

are entitled to qualified immunity with respect to the

handcuffing of Torres and their conduct in searching

beyond the basement of the home, but their appeal will be

dismissed with respect to appellees' claim that they did

excessive damage during the search. Accordingly, we will

remand the matter to the district court to enter summary

judgment on all issues in favor of Donohue and to enter

summary judgment in favor of the other agents to the

extent that they are entitled to qualified immunity. The

parties will bear their own costs on this appeal.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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