Opinion

Leveto v. Lapina

258 F.3d 156
2001 WL 803006

Court: Court of Appeals for the Third Circuit
Filed: Jul 17, 2001
Author: Alito
On the bench: Mansmann, Alito, Fuentes
Cited by: 49 cases
Authority: More cited than 78.4%

discussing the tension between the concept of notice pleading and the qualified immunity doctrine

How later courts described this case

discussing the tension between the concept of notice pleading and the qualified immunity doctrine
“[Q]ualified immunity will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint.”
“{A] complaint may be subject to dismissal under Rule 12(b)(6) when an affirmative defense ,.. appears on its face.”

Written by the judges who cited it.

The opinion

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

7-17-2001

Leveto v. Lapina

Precedential or Non-Precedential:

Docket 00-3241

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Filed July 17, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-3241

DANIEL J. LEVETO; MARGARET A. LEVETO,

Appellants

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 WIR TH;

CYNTHIA UNDERWOOD; ELIZABETH QUINN;

"JOE RIVERA"

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.

Argued on October 26, 2000

Before: MANSMANN, ALITO, and FUENTES,

Circuit Judges.

(Opinion Filed: July 17, 2001)

WILLIAM G. McCONNELL (Argued)

Ekker, Kuster & McConnell

P.O. Box 91

Sharon, PA 16146

Counsel for Appellants

JONATHAN S. COHEN

A. WRAY MUOIO (Argued)

Tax Division

United States Department of Justice

P.O. Box 502

Washington, DC 20044

Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

Dr. Daniel Leveto and his wife, Margar et Leveto, filed this

action against numerous known and unknown Inter nal

Revenue Service ("IRS") agents. The Levetos asserted

numerous federal constitutional claims under Bivens v. Six

Unknown Named Agents of Federal Bureau of Nar cotics, 403

U.S. 388 (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 dismissed the Complaint for failur e to state

a claim under Fed. R. Civ. P. 12(b)(6), and the Levetos took

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 important

issues concerning the execution of sear ch 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 r easonable

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 therefor e affirm the

decision of the District Court.

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-r elated 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 hospital that day at

approximately 6:30 a.m. and was rushed 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, wher e 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

accompany 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 sear ch

warrant and patted down Margaret Leveto, who was

wearing only a nightgown. Id. Several agents remained at

the Levetos' home, where they detained Mrs. Leveto for

approximately six hours, interrogated her without providing

Miranda warnings, and conducted a sear ch 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 a closed r oom for

approximately six hours. Id. PP 25, 141. He was not

permitted external communication and was supervised

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.

When the search of the hospital concluded, the agents

took away thousands of documents containing r ecords of

five companies, confidential medical and financial

information on clients, and computer softwar e. 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 contended that

they were entitled to qualified immunity on the federal

constitutional 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 r egard 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 (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 r easonable

officer in the defendants' position would have believed that

their conduct violated clearly established constitutional

rights." Id. at 42. This appeal followed.

II.

Our review of both a dismissal under Fed. R. Civ. P.

12(b)(6) and a grant of qualified immunity 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). In reviewing the

dismissal of a claim under Rule 12(b)(6), we must"accept

the allegations of the complaint as true and draw all

reasonable inferences in the light most favorable to the

plaintiff[s]." Board of T rustees, 237 F.3d at 272. Dismissal

is proper "only if it is clear that no r elief could be granted

under any set of facts that could be proved consistent with

the allegations." Brown v. Philip Morris Inc., 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. Although

immunity is an affirmative defense, "a complaint 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 S 1357, at 358-59 (1990) (citing cases). Thus,

qualified immunity " `will be upheld on a 12(b)(6) motion

only when the immunity is established 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).

The principles governing claims of qualified immunity are

well-established. Under this doctrine, "gover nment officials

performing discretionary functions generally 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."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (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 "provides ample protection to

all but the plainly incompetent or those who knowingly

violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986);

see also Giuffre v. Bissell, 31 F .3d 1241, 1255 (3d Cir.

1994).

In determining whether qualified immunity applies in a

specific case, we "first determine whether the plaintiff has

alleged the deprivation of an actual constitutional right at

all." Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting

Conn v. Gabbert, 526 U.S. 286, 290 (1999)); see also Assaf

v. Fields, 178 F.3d 170, 174 (3d Cir . 1999); Siegert v. Gilley,

500 U.S. 226, 232 (1991) ("A necessary concomitant to the

determination of whether the constitutional 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 constitutional 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

of a constitutional right."); Giuffre, 31 F.3d at 1247, 1255.1

"[I]f so, [we] proceed to deter mine 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.

A right may be clearly established even if ther e 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 in the

defendants' position at the relevant time could have

_________________________________________________________________

1. We have said, however, that"[w]here appropriate, we may consider

whether the constitutional rights asserted . . . wer e `clearly

established'

at the time the individual officials acted, without initially deciding

whether a constitutional violation was alleged at all." Giuffre, 31 F.3d

1255; see also Acierno v. Cloutier, 40 F.3d 597, 607 n.7 (3d Cir. 1994)(en

banc).

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 (1987)

("[I]n the light of pre-existing law the unlawfulness must be

apparent"; otherwise 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.").

If a reasonable official would have known that the

conduct was unlawful, qualified immunity is generally not

available.2 See Harlow, 457 U.S. at 818-19 ("If the law was

clearly established, the immunity defense or dinarily should

fail, since a reasonably competent public official should

know the law governing his conduct."); Assaf, 178 F.3d at

181 (Where "[a]ny hypothetical r easonable official should

have known that" a state employee'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 818; Karnes v. Skrutski, 62 F.3d 485,

492, 493-94 (3d Cir. 1995); Giuffr e, 31 F.3d at 1256-57;

Shea, 966 F.2d at 130; Good, 891 F.2d at 1092.

In this case, we must decide whether, "accept[ing] the

allegations of the complaint as true and draw[ing] all

reasonable inferences in the light most favorable to the

plaintiff[s]," Board of T rustees, 237 F.3d at 272, "a

reasonable [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

_________________________________________________________________

2. "[I]f the official pleading the [qualified immunity] defense claims

extraordinary circumstances and can pr ove that he neither knew nor

should have known of the relevant legal standar d, the defense should be

sustained." Harlow, 457 U.S. at 819. No extraordinary circumstances

appear on the face of plaintiffs' Complaint, nor have defendants sought

to fit within this exception.

[agents] possessed." Anderson, 483 U.S. at 641; see also

Wilson, 526 U.S. at 615; Torr es, 200 F.3d at 184.

III.

Dr. and Mrs. Leveto complain that the IRS agents violated

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.

A pat down is unquestionably a search cover ed by the

Fourth Amendment. As the Supreme Court held in Terry v.

Ohio, 392 U.S. 1 (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 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 inflict

great indignity and arouse strong r esentment." Id. at 17;

see also Kithcart, 218 F.3d at 219.

The Supreme Court has also held that possession of a

warrant to search particular premises is not alone sufficient

to justify a pat down of a person found on the pr emises at

the time of execution. In Ybarra v. Illinois, 444 U.S. at 94,

the Court held that 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." 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 taver n in question, the

police were not justified in patting down Ybarra merely

because he was on the premises at the time of execution.

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 warrant 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 sear ched and may have been

a subject of the criminal investigation. These ar e 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 pr esent in a

crowd at a public place," from woman who entered

apartment evidently used for narcotics trafficking with

individuals apparently involved in an ongoing narcotics

deal). However, we do not believe that these factors alone

are enough to provide a reasonable suspicion, and the

Complaint alleges no other facts about Mrs. Leveto's

background, her prior activities, or the natur e of the crimes

under investigation that provided reasonable suspicion that

she presented a danger to the agents.

In assessing whether law enforcement officers are

justified in taking precautions for their own protection,

"[w]e must . . . keep in mind that a thr eat 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," 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 pr emises being

searched and who may be a subject of the investigation, no

matter what the nature of the suspected of fense. We thus

conclude that, if the allegations in the Complaint

concerning the pat down of Mrs. Leveto ar e viewed in the

light most favorable to the plaintiffs, Mrs. Leveto's Fourth

Amendment rights were violated.

We reach a similar conclusion concer ning the

constitutionality 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 fir earms.3 The

_________________________________________________________________

3. Indeed, Dr. Leveto alleges that he is dedicated to animal welfare and

that he and his family oppose hunting. ComplaintP 36.

investigation into possible tax evasion, without mor e,

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 enter ed the

veterinary hospital or even approached the officers if they

had not rushed his car and patted him down. Accor dingly,

the plaintiffs have alleged a claim for unr easonable search

based on the pat down of Dr. Leveto.

Although we conclude that the Complaint asserts valid

Fourth Amendment claims regarding the pat downs of Mrs.

Leveto and 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 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, ther e was at least

some significant authority to the contrary. For example, in

Rivera v. United States, 928 F.2d 592, 606 (2d Cir. 1991),

which the District Court cited, the Second Cir cuit wrote

that the police "have the authority to make a limited search

of an individual on [premises being sear ched] as a self-

protective measure." As a leading tr eatise states, some of

the lower court cases decided after Ybarra"indicate[d] a

willingness to allow a frisk provided the person ha[d] a

somewhat stronger link to the premises than Ybarra did to

the bar where he was found." 2 Wayne R. LaFave, Search

and Seizure S 4.9(d), at 641 (3d ed. 1996);4 see United

States v. Reid, 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) (person

who drove to location where search had discovered drugs);

_________________________________________________________________

4. This treatise also viewed the Supr eme Court's decision in Michigan v.

Summers, 452 U.S. 692 (1981), as expressing"greater concern about the

dangers attending execution of a search warrant where private premises

are involved and persons connected with the pr emises are present." 2

LaFave, supra, S 4.9(d), at 642 n.76.

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.

IV.

We now consider the plaintiffs' ar gument that they were

seized in violation of the Fourth Amendment during the

lengthy process of executing the search warrants at the

veterinary hospital and the Levetos' residence. 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 ("[W]hen [an] officer, 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 wher e 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 noted, accor ding to the

Complaint, Dr. Leveto's freedom was r estrained from the

time of the initial pat down in the parking lot thr ough 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 freedom

of movement was restricted, and he was even pr evented

from speaking with others or using a restr oom 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 cir cumstances of the

particular governmental invasion of a citizen's personal

security," the Levetos' seizures can be upheld as

constitutional only if they were reasonable. Terry, 392 U.S.

at 19. "[T]he general rule [is] that every arrest, and every

seizure having the essential attributes of a formal arrest, is

unreasonable unless it is supported by pr obable cause."

Summers, 452 U.S. at 700. However, an"exception [exists]

for limited intrusions that may be justified by special law

enforcement interests." Id. The reasonableness of these

intrusions is determined by balancing the intrusiveness of

the seizure against law enforcement inter ests and law

enforcement's "articulable basis for suspecting criminal

activity." See id. at 699-705 (employing 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).

The Supreme Court has identified several law

enforcement interests that, when balanced against the

degree of intrusion, might justify a limited seizure pursuant

to a search: namely, the "general inter est [in] . . . effective

crime prevention and detection," T erry, 392 U.S. at 22; the

"interest in preventing flight in the event that incriminating

evidence is found"; "the interest 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 sear ch," which "may be

facilitated if the occupants of the premises ar e 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 Cir. 1986).5 In addition,

the Supreme Court has found that "[i]f the evidence that a

citizen's residence is harboring contraband is sufficient to

persuade a judicial officer that" a sear ch of the home is

_________________________________________________________________

5. 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).

justified, "[t]he connection 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.

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 (1979), illustrate this principle.

In Michigan v. Summers, 452 U.S. at 693 & n.1, police

officers found the owner of a home descending the front

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 Supr eme Court held

that this detention "was `substantially less intrusive' than

an arrest." Id. at 702 (quoting 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. Id. 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 r esidence, 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 infor mation the officers

[sought] 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 natur e of the intrusion,

the law enforcement interests discussed above, and the

individualized suspicion of criminal activity cr eated 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 probable 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 pr esented 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 "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 arr ested 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 interests pr otected 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 somewher e between the

detentions in Summers and Dunaway. Like the detention in

Summers, Dr. Leveto's initial seizur e at the hospital might

be viewed as merely an incremental intrusion, for the

agents had a warrant to conduct a pervasive sear ch 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

restricted in communicating with others, and during the

six-hour period after he was brought back to the hospital

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 incr eased the

stigma imposed by the agents' search, for it allowed co-

workers to see how Dr. Leveto was being tr eated by the

authorities and prevented Dr. Leveto fr om responding to

client needs. Cf. Daniel, 808 F.2d at 1404 (suggesting that

one could argue both that detention at one's business adds

only minimally and that it adds significantly to the stigma

of the search).

Moreover, Dr. Leveto's detention involved the

inconvenience and indignity of a forced ride with IRS agents

to his home and back to his office. The Supr eme Court

recognized in Summers that a seizur e is more intrusive if it

"involves moving the suspect to another locale." Summers,

452 U.S. at 700 n.12 (quoting 3 Wayne R. LaFave, Search

and Seizure S 9.2, at 36-37 (1978)). Similarly, the Eighth

Circuit has held that stopping someone thr ee to five miles

from his home and taking him back in handcuf fs for the

execution of a warrant 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 pr e-arrest

detention lasted in Summers, the Court did not regard it as

"prolonged," see 452 U.S. at 705 n.21, and Dr. Leveto's

eight-hour detention undoubtedly qualifies as pr olonged

under any reasonable understanding of that ter m. 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 intrusive

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 showing 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 ("[T]he 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."). 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 application of Summers"

where suspect was detained as he was pulling out of his

driveway and held for limited time during sear ch 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 approximately two and four hours, r espectively,

"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

required, however, because even under Summers' balancing

approach for less intrusive seizures, Dr . Leveto's detention,

as alleged, was unreasonable.6 We have already discussed

_________________________________________________________________

6. The Court in Summers adopted the general 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

the great intrusion on Dr. Leveto's Fourth Amendment

interests that resulted from the agents' alleged 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.

A primary law enforcement interest served by such

detention is the prevention of flight in the event that

incriminating evidence is found during the sear ch. In this

connection, the distinction between searches for

contraband and searches for evidence is material. It is not

uncommon for a search for contraband to pr oduce items

that 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 arr est 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 examined and an indictment is obtained. As a r esult, 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

_________________________________________________________________

apply "if the search warrant merely authorized a search for evidence," if

the detention were prolonged, or if other special circumstances existed.

Id. 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

completely ad hoc approach," but applying Summers' balancing approach

where the detention at issue was more severe than that in Summers).

his wife was arrested. See United States v. Schandl, 947

F.2d 462, 465 (11th Cir. 1991) (noting that tax evasion is a

crime that is "generally only detected thr ough the careful

analysis and synthesis of a large number of documents").

Similarly, there was no compelling need to detain Dr.

Leveto to protect the safety of the agents. If the agents had

been conducting an investigation into a type of of fense

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 nar cotics searches

may erupt in "sudden violence or frantic ef forts to conceal

or destroy evidence"); Baker, 50 F .3d at 1191 (noting that

occupants of a residence subject 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 possessed information that the

Levetos were tied to a violent group or had violent

backgrounds, detention for some period might 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 compelling safety reason for detaining him

during the lengthy search.

Furthermore, Dr. Leveto's detention did little to advance

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, ther e was no

apparent need for Dr. Leveto to be pr esent 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. Bernstein, 990 F. Supp. at

433 (IRS agents, who were executing warrants at business

and home, prevented suspect at business fr om calling

girlfriend at home "due to safety and recor d destruction

concerns."); Garavaglia v. Budde, 1994 WL 706769, at *3 &

n.3 (6th Cir. 1994) (unpublished disposition) (noting that no

authority 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 cir cuits have

suggested 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 minimized 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 executing the warrant there. Moreover, once

the searches of the home and hospital wer e 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 minutes

of a five-hour search "until other coor dinated searches were

underway" to prevent premature war ning). 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 such a 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 the rationale

justifying detention based on the occupant's connection to

the premises "is not applicable to a sear ch for evidence,

because the existence of mere evidence, 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 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) (r ecognizing

"that a search for evidence will rar ely 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 reasoning 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 constituted a violation of his Fourth

Amendment rights.

Mrs. Leveto has likewise stated a claim of unr easonable

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 pr olonged period--

approximately 6 hours--during a search for evidence.

Accordingly, her seizure appears to have been significantly

more intrusive than that in Summers.

On the other side of the balance, the law enfor cement

interests that might justify her detention wer e less weighty

than were the law enforcement inter ests in Summers. As

with Dr. Leveto, the interest in pr eventing 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 r esult 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 commanding

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 lawful.

Because Dr. Leveto's experience fell somewher e between

the situations in Dunaway and Summers , a reasonable

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 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).

While the Court did not extend this rule to cases involving

searches for evidence or cases featuring pr olonged

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 justified if the sear ch warrant merely

authorized a search for evidence."); id. at 705 n.21

("[S]pecial 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

("[M]oving the suspect to another locale""might cast doubt

upon the reasonableness of the [T erry-type] detention.").

After Summers, other courts acknowledged, but did not

resolve, these issues. See Torr es, 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 circumstances, or' " if pr olonged); Pecsi v. Doyle,

1991 WL 137597, at *2 n.1 (6th Cir. 1991) (unpublished

disposition) (leaving "a definitive resolution 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 suggest"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 concept

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 of permissible detention, it apparently

contemplated that occupants could be detained long

enough for police to complete extensive sear ches.").

Moreover, dicta in opinions of this Court and others

occasionally 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 r estrain 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 pr emises

while an authorized search is in progr ess, regardless 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

appropriate incident to the execution 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 Pr ocunier v. Navarette, 434

U.S. 555, 562 (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 requir ed to hold that the agents were

entitled to qualified immunity on the Levetos' unr easonable

seizure 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 detention 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 business

premises pursuant to search warrant for evidence of tax

evasion as neither Supreme Court nor Sixth Cir cuit 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 pr oper search

and thereby extended length of detention, denial of

qualified immunity at summary judgment 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 "[c]learly established

law requires that `the officers r emain on the premises only

so long as is reasonably necessary to conduct the search,' "

the defendants were not yet entitled to qualified immunity.).

Having concluded that the District Court properly

dismissed the claims arising from the Levetos' pat down

and detention, we address one final claim. In their

Complaint, the Levetos allege that the closur e of Dr.

Leveto's business during the search violated the Fourth

Amendment. To the extent that this claim r elies on the

restrictions placed on Dr. Leveto, those restrictions were

considered in finding that his detention was unreasonable.

At this point, we focus on whether the overall inter ference

with the hospital's operation led to an unreasonable search.

We have located little authority directly on point.

One district court, however, has addr essed 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 retur ns. Bernstein, 990 F.

Supp. at 432. At the business--a delicatessen--"[a]ll

customers or employees were asked to leave and the

business was closed for the duration of the [four -hour]

search." Id. at 432, 433. Accor ding to a declaration

submitted in the case, closure was "the established

procedure in search warrants involving businesses open to

the public." Id. at 432. The court found that plaintiff had

failed to state a claim based on closure of the business

because "[t]here is certainly no constitutional right to not

have federal 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 mor e convenient time.");

O'Ferrell v. United States, 968 F . Supp. 1519, 1535 (M.D.

Ala. 1997) (noting in the context of the discr etionary

function exception to federal tort liability that

"constitutional law does not specifically pr ohibit" the

closing of a business during a search). Thus,"[t]he fact that

the customers were requested to leave and that the site was

temporarily closed [did] not pose constitutional issues."

Bernstein, 990 F. Supp. at 441.

We do not agree with the Ber nstein court's analysis. For

present purposes, we must assume that the sole authority

upon which the defendants in this case relied when they

restricted the normal operation of the veterinary hospital

was the authority conferred by the warrants that they were

executing, and those warrants merely authorized 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 operation of the

veterinary hospital derived from the authority 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

allegations 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 the

defendants are entitled to qualified immunity. The

unlawfulness of shutting down a business simply because

a search warrant was being executed on the pr emises was

not clearly established at the time of the sear ch in this case

and, indeed, as noted, the scant authority on this point

appeared to support the lawfulness of the defendants'

conduct. Cf. Wilson v. Layne, 141 F .3d 111, 115-16, 118-19

& n.11 (4th Cir. 1998) (finding officers entitled 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 (1999) (affirming grant of qualified immunity given

"undeveloped state of the law"); Enlow v. Tishomingo

County, 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 available because "a r easonable

officer could have thought probable cause existed.").

VI.

Because this case comes to us on appeal from a

dismissal under Fed. R. Civ. P. 12(b)(6), we know only what

the plaintiffs allege that the defendants did when the

warrants 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 been tried. However, if the plaintiffs'

allegations are true, the warrants in this case were

executed 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,

922 F.2d at 1118-19 (recognizing that the clearly

established requirement "may pr oduce distressing results,"

but finding defendants entitled to qualified immunity).

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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