                                                                                                                           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Precedential or Non-Precedential: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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"Leveto v. Lapina" (2001). 2001 Decisions. Paper 155.
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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

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 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.

                                  2
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-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.

                               3
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.

B.

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.

                                4
II.

A.

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).

B.

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."

                               5
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
at
1255; see also Acierno v. Cloutier, 40 F.3d 597, 607 n.7 (3d Cir. 1994)(en
banc).

                               6
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.

                               7
[agents] possessed." Anderson, 483 U.S. at 641; see also
Wilson, 526 U.S. at 615; Torr es, 200 F.3d at 184.

III.

A.

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 Complaint PP 166, 174.

As with other searches, the constitutionality of a pat
down is judged by a standard of reasonableness. See Terry,
392 U.S. at 19-22; see also Illinois v. McArthur , 531 U.S.
___, ___, 121 S. Ct. 946, 949 (2001) (The Fourth
Amendment's " `central requirement' is one of
reasonableness."); Maryland v. Buie, 494 U.S. 325, 331
(1990) ("[T]he Fourth Amendment bars only unr easonable
searches and seizures."); United States v. Sharpe, 470 U.S.
675, 685 (1985) ("The Fourth Amendment is not, of course,
a guarantee against all searches and seizures, but only
against unreasonable searches and seizures.");
Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (per
curiam) ("The touchstone of our analysis under the Fourth
Amendment is always `the reasonableness in all the
circumstances of the particular governmental invasion of a
citizen's personal security.' "). Reasonableness is
determined "by balancing the need to sear ch [or seize]
against the invasion which the search [or seizure] entails."

                               8
Terry, 392 U.S. at 21 (quoting Camara v. Municipal Court,
387 U.S. 523, 537 (1967)); see also McArthur, 531 U.S. at
___, 121 S. Ct. at 950 ("[R]ather than employing a per se
rule of unreasonableness [in this case], we balance the
privacy-related and law enforcement-r elated 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 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, r egardless 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
(1983) (pat down allowed when officer "possesses an
articulable suspicion that an individual is ar med and
dangerous"); Ybarra v. Illinois, 444 U.S. 85, 92-93 (1979)
("[A] reasonable belief that [a person] was armed and
presently dangerous . . . must for m the predicate to a
patdown of a person for weapons."); United States v.
Kithcart, 218 F.3d 213, 219 (3d Cir . 2000) (recognizing "that
a police officer may conduct a reasonable search for
weapons for his or her own protection without violating the
Fourth Amendment `where he[/she] has r eason 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 danger ous to the officer
or others."); United States v. Patterson, 885 F.2d 483, 485
(8th Cir. 1989) (security frisk upheld wher e officer "was
armed with sufficient facts to be concer ned about his safety
and that of his fellow officers"); United States v. Corona, 661
F.2d 805, 807 & n.2 (9th Cir. 1981) (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 befor e him may be
armed or otherwise presently danger ous."); United States v.
Cole, 628 F.2d 897, 899 (5th Cir. 1980) (Terry requires
"that specific articulable facts support an inference that the

                               9
suspect might be armed and dangerous."). Thus,
conducting a pat down is lawful when, under the
circumstances, an officer has a reasonable belief that the
subject is armed and dangerous.

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 specificity in the information
upon which police action is predicated is the central
teaching of [the Supreme] Court's Fourth Amendment
jurisprudence."); Buie, 494 U.S. at 332; Kithcart, 218 F.3d
at 219; Kikumura, 918 F.2d at 1092 ("[O]fficer, at the time
of the search, must know of `specific and articulable facts
. . . .' "). The court must then deter mine 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." T erry, 392 U.S. at 21-22;
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).

B.

In view of the above authorities, we hold that the
Complaint alleges a valid Fourth Amendment violation

                                10
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.

                                11
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.

C.

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.

                               12
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.

A.

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.

                               13
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).

                               14
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

                               15
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.

B.

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

                               16
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

                               17
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

                               18
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).

                                19
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

                               20
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

                               21
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.

                               22
C.

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

                               23
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

                               24
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.).

V.

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

                               25
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

                               26
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).

                               27
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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