                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-1999

Torres v. United States
Precedential or Non-Precedential:

Docket 99-1024




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Filed December 29, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1024

JUAN ANGEL TORRES; ROSA MARIA DOMINGUEZ; and
ROSA MARIA TORRES, a minor, by her parents and
natural guardians Juan Angel Torres and Rosa Maria
Dominguez

v.

UNITED STATES OF AMERICA; DRUG ENFORCEMENT
ADMINISTRATION; MATTHEW DONAHUE; MARTIN
CAPLAN; MAUREEN KELLY; JOSEPH CAPONE; and
JONATHAN COHEN

Matthew Donahue; Martin Caplan; Maureen Kelly; Joseph
Capone; and Jonathan Cohen,

       Appellants

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 97-5804)
District Judge: Honorable Ronald L. Buckwalter

Argued November 4, 1999

BEFORE: BECKER, Chief Judge, and GREENBERG
and CUDAHY,* Circuit Judges

(Filed: December 29, 1999)



_________________________________________________________________

* Honorable Richard D. Cudahy, Senior Judge of the United States Court
of Appeals for the Seventh Circuit, sitting by designation.
       David W. Ogden
       Acting Assistant Attorney General
       Susan Shinkman
       Office of the United States Attorney
       Michael R. Stiles
       United States Attorney
       Barbara L. Herwig
       Katherine S. Gruenheck (argued)
       Appellate Staff
       United States Department of Justice
       Civil Division, Appellate Staff
       601 D Street, N.W.
       Washington, DC 20530-0001

        Attorneys for Appellants

       Richard Edmund Patton (argued)
       2729 River Road
       New Hope, PA 18938

        Attorney for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

A. Factual Background

This matter comes on before this court on appeal from
the district court's order partially denying appellants'
motion seeking summary judgment on qualified immunity
grounds. The appellants are Drug Enforcement
Administatration ("DEA") agents who applied for a search
warrant for the appellees' residence and executed the
warrant the next day. The issues on appeal relate to the
execution of the warrant. The search was an aspect of an
extensive DEA investigation into a large cocaine distribution
ring reputedly run by Geraldo Nieves. During the
investigation, the DEA secured the cooperation of Blake
O'Farrow, who had been a participant in the Nieves ring.
O'Farrow informed DEA Special Agent Matthew Donahue in

                                 2
September and November 1996, and again in January
1997, that Nieves was using a house at 3936 North Fifth
Street in Philadelphia for storing, cutting, and bagging
cocaine.

Based on the information obtained from O'Farrow, as well
as other information secured during the investigation of the
Nieves ring, Donahue prepared a probable cause affidavit
and submitted it to a magistrate judge on January 30,
1997. That day, the magistrate judge signed a warrant
authorizing a search of "the property known as 3936 N. 5th
Street, Philadelphia, PA" for "[c]ocaine, packaging materials,
dilutents [sic], plastic packaging slips, heat sealer, scales,
and a vice [sic]."

At approximately 6:00 a.m. on the next day, DEA Agents
Martin Caplan, Maureen Kelly, Joseph Capone, and
Jonathan Cohen went to 3936 North Fifth Street to execute
the warrant.1 Donahue, however, did not go to the premises
with the other agents. The occupants of the house were
asleep when the agents arrived but appellee Rosa Maria
Dominguez awoke to the sound of metal rattling. She went
back to sleep only to reawaken to the sound of knocking
and the agents' voices identifying themselves. Appellee
Juan Angel Torres, who was sleeping in the same room,
awoke and looked out the window where he saw people
wearing DEA jackets. Dominguez (who put on a robe) and
Torres (who wrapped himself in a towel) then went
downstairs and looked out a ground floor window. Torres
attempted to signal to the agents that Dominguez would
open the door, but they nevertheless broke through the
door with a battering ram.

The agents entered the home, pointed their guns at
Torres and Dominguez, and ordered them to lie on the
floor. The agents placed Torres but not Dominguez in
handcuffs. The agents asked whether there were any
weapons in the house, and Torres told them the location of
two firearms in his bedroom. After he had been on the floor
for about five minutes, Torres, still clad in his towel, was
_________________________________________________________________

1. The factual record relating to the execution of the warrant derives
largely from the appellees' depositions as the appellees did not depose
the agents.

                                3
helped to the living room couch. Dominguez then was
permitted to attend to the couple's two children upstairs.
The agents did not point their guns at anyone after the
initial entry.

The agents searched the entire premises. In their
deposition testimony, Torres and Dominguez gave wide
estimates for the duration of the search, varying from one
and one-half to three hours. During this time, Torres (who
remained handcuffed), Dominguez, and the children sat
together on the couch. At some point, the agents permitted
Dominguez to make breakfast for the children, and, in
Torres's words, the children received nothing but"nice
comments" from the agents. Eventually, the agents removed
the handcuffs and allowed Torres to get dressed so that he
could escort the agents to the building where he worked.2

The agents did not find drugs or drug paraphernalia in
the home. They, however, seized several items, including a
Glock 9mm semiautomatic handgun, a Ruger .357
magnum revolver, ammunition for those two weapons plus
ammunition for a third weapon which they did not locate,
a roll of plastic tape, and various papers, including
earnings statements, phone cards, and a gas bill. These
items were returned to appellees within five days.

B. Procedural History

Appellees filed their complaint in the district court on
September 16, 1997. Ultimately, after amendments, the
appellees asserted that they were entitled to recover under
the Federal Tort Claims Act and directly under the
Constitution for Fourth and Fifth Amendment violations
with respect to the issuance and execution of the warrant.
See Bivens v. Six Unknown Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Following
discovery, the agents moved for summary judgment, and
the district court partially granted their motion analyzing
the appellees' claims under the Fourth Amendment alone.
_________________________________________________________________

2. According to appellees' amended complaint, after the agents completed
the search of appellees' home, they conducted a warrantless search of
property owned by "plaintiff 's father."

                                4
The district court held that appellees failed to allege a
constitutional violation with respect to the agents' conduct
up to and including the initial entry into appellees' home.
In this regard, the court first determined that there was
probable cause for the issuance of the warrant. The court
then found that the agents had no reason to believe that
they were executing the warrant at the wrong location. In
so ruling, the court declined to place any significance in the
fact that the warrant misdescribed the color of the front
door of the home as the court found that this mistake was
"trivial" given that the warrant otherwise described
appellees' home accurately. The court then ruled that the
agents acted lawfully in using a battering ram to break
down the front door.

The district court, however, refused to grant summary
judgment to the agents with respect to their conduct once
they entered the home. Although the court found that their
treatment of Dominguez and the children was "reasonable,
and indeed, duly considerate under the circumstances," the
court was "unable to find that the agents' conduct . . . was
reasonable and not excessive" with respect to Torres's
handcuffing for the duration of the search.

The court then concluded that the agents exceeded the
scope of the warrant when they searched the appellees'
entire home rather than just the basement. Although the
warrant specifically authorized a search of "the property
known as 3936 N. 5th Street, Philadelphia, PA," the court
determined that the warrant was "circumscribed" by the
supporting probable cause affidavit, which stated that
cocaine was stored in the basement. The court then
indicated, however, that it was "possible" that exigent
circumstances (specifically, the presence of weapons and
ammunition) justified a broader search of the entire home.

Overall the district court's memorandum opinion is
ambiguous with respect to its disposition of the agents'
motion for summary judgment on the basis of qualified
immunity for their conduct in searching beyond the
basement. The court may have intended to grant the agents
summary judgment based on its finding of exigent
circumstances, but its use of the word "possible" suggests
that the court found a factual issue for trial and hence

                                5
denied summary judgment. Indeed, even the agents are
uncertain as to how the court ruled for they explain in their
reply brief that the "district court appears to have found
that the scope of the search was probably supported by
exigent circumstances, but reserved judgment." Reply br. at
4 n.2.3 Moreover, the agents in their opening brief defended
the validity of the search to the extent that it went beyond
the basement. Plainly, they would have had no reason to
brief that issue if they had been granted summary
judgment on it. In the circumstances, we conclude that the
district court denied summary judgment with respect to
appellees' claims that the search unconstitutionally
exceeded the scope of the warrant.

The district court further ruled that the agents acted
unlawfully by seizing items not specifically listed in the
warrant. The district court later reconsidered this ruling,
however, and in an order of January 5, 1999, granted
summary judgment in the agents' favor as to the seizure of
items from appellees' home.

The court also addressed appellees' allegation that the
agents "destroy[ed] doors, ripp[ed] out ceilings and walls
and overturn[ed] clothes and toys" during the search. The
court found no evidence in the record to support this
allegation, but refused to grant the agents summary
judgment on the issue because their motion papers did not
specifically address the property damage claim. Finally, the
court held that appellees lacked standing to maintain any
claims with respect to warrantless searches of other
properties (specifically, Torres's place of employment and
property belonging to Torres's father) which allegedly took
place on the day in question.

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

3. Actually, the agents hedge on the point as they also contend that the
district court "granted qualified immunity and ruled in favor of the
defendants on all but two of [appellees' constitutional] claims: the
duration of the restraint of Torres, and excessive damage to the
residence." Reply br. at 2. It appears that the agents quite naturally
would like to read the district court's opinion as granting them qualified
immunity on the scope of the search issue but are unwilling to forego
briefing the issue.

                               6
appeal to the extent that the district court denied them
summary judgment on the basis of qualified immunity. In
particular, the question they present is whether the district
court should have granted qualified immunity to them with
respect to the following aspects of their conduct in
executing the search warrant: (1) leaving Torres handcuffed
for the duration of the search; (2) searching the entire
premises rather than just the basement; and (3) causing
excessive damage to the walls, ceilings, and other items in
the home.4

II. JURISDICTION and STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C.
SS 1331 and 1346 and we have jurisdiction to hear this
appeal under 28 U.S.C. S 1291 pursuant to the collateral
order doctrine, as applied to qualified immunity cases. See
Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806 (1985).
We exercise plenary review over the district court's denial of
summary judgment on qualified immunity grounds. See
Abbott v. Latshaw, 164 F.3d 141, 145 (3d Cir. 1998), cert.
denied, 119 S. Ct. 2393 (1999).

Under the doctrine of qualified immunity, "[g]overnment
officials performing discretionary functions are`shielded
from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.' "
Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 2738 (1982)); In re City of Philadelphia Litig., 49 F.3d
945, 961 (3d Cir. 1995). The inquiry when a defendant
claims qualified immunity is "whether a reasonable officer
could have believed that his or her conduct was lawful, in
light of the clearly established law and the information in
the officer's possession." Sharrar, 128 F.3d at 826. Officers
who "reasonably but mistakenly" conclude that their
_________________________________________________________________

4. The appellees have challenged the district court's decision to the
extent that it granted the agents summary judgment but those issues
are not before us on this appeal. The district court partially granted and
partially denied the government's motion for summary judgment on the
Tort Claims Act issues but those dispositions as well are not before us.

                               7
conduct is lawful are thus entitled to immunity. Id. A court,
however, need not consider whether the right implicated
was clearly established at the time of the events in question
if the plaintiff has not alleged a deprivation of a
constitutional right. See Wilson v. Layne, 119 S.Ct. 1692
(1999); County of Sacramento v. Lewis, 523 U.S. 833, 841
n.5, 118 S.Ct. 1708, 1714 n.5 (1998); Siegert v. Gilley, 500
U.S. 226, 111 S.Ct. 1789 (1991); Larsen v. Senate of Pa.,
154 F.3d 82, 86 (3d Cir. 1998), cert. denied, 119 S.Ct. 1037
(1999).

III. DISCUSSION

A. Handcuffing of Torres

The first question before us is whether the agents acted
lawfully in their treatment of Torres during the execution of
the search. If they did, then they were entitled to qualified
immunity because the appellees would not have "alleged a
deprivation of a constitutional right at all." Lewis, 523 U.S.
at 841 n.5, 118 S.Ct. at 1714 n.5.

The Supreme Court has held that officers executing a
search warrant lawfully may restrain persons present at the
searched premises. See Michigan v. Summers, 452 U.S.
692, 705, 101 S.Ct. 2587, 2595 (1981) ("[A] warrant to
search for contraband founded on probable cause implicitly
carries with it the limited authority to detain the occupants
of the premises while a proper search is conducted.")
(footnotes omitted). In Summers, the Supreme Court noted
that a warrant to search for narcotics "may give rise to
sudden violence or frantic efforts to conceal or destroy
evidence," and thus the risk of harm to officers and
occupants alike "is minimized if the officers routinely
exercise unquestioned command of the situation." Id. at
702-03, 101 S.Ct. at 2594. The Supreme Court indicated
that the officers might exceed their proper authority in an
"unusual case" involving "special circumstances, or
possibly a prolonged detention," but the "routine" detention
of residents while a search is conducted is constitutional.
Id. at 705 n.21, 101 S.Ct. at 2595 n.21.

Further, case law has indicated that at least in certain
circumstances officers lawfully may handcuff the occupants

                                8
of the premises while executing a search warrant. In United
States v. Fountain, 2 F.3d 656 (6th Cir. 1993), officers
executing a search warrant for narcotics and firearms
handcuffed the occupants of the house and forced them to
lie face down on the floor while they conducted the search.
Id. at 659-60. The Court of Appeals for the Sixth Circuit
held that the detention was reasonable under the Fourth
Amendment:

        When occupants of a residence are detained during
       the execution of a search warrant, the circumstances
       ordinarily will justify more intrusive behavior by the
       police than in a typical on-the-street detention. When
       the ATF agents entered Fountain's home pursuant to
       the warrant to search for narcotics, they faced a
       confined, unfamiliar environment that was likely to be
       dangerous. [The occupants] were handcuffed and
       forced to lie face down on the living room floor while
       the search was conducted. Concern for safety of the
       agents and the need to prevent disposal of any
       narcotics on the premises, justified the restraint of the
       occupants, particularly under the circumstances of this
       case, where the search was part of a narcotics
       investigation and weapons had been seized from the
       home just one month earlier. The `character' of the
       intrusion on [the occupants] and its `justification' were
       reasonable and proportional to law enforcement's
       legitimate interests in preventing flight in the event
       incriminating evidence is found and in minimizing the
       risk of harm to officers. Those concerns plainly
       outweighed the intrusion experienced by [the
       occupants] in being required to be on the living room
       floor while the search was completed. . . .

Id. at 663; see also Van Brackle v. Parole Bd., No. Civ. A.
96-2276, 1996 WL 544229, at *2 (E.D. Pa. Sept. 26, 1996)
(holding that the detention of an occupant in handcuffs
during a search was lawful) (citing Fountain).

On the other hand, handcuffing may be excessive in
certain circumstances. In Franklin v. Foxworth, 31 F.3d 873
(9th Cir. 1994), the court held that officers executing a
warrant violated the Fourth Amendment when they carried
a seriously disabled man from his bed and left him

                               9
handcuffed on a couch for over two hours with nothing to
cover the lower half of his body. Id. at 874-78. Though the
man complained that his handcuffs hurt and that he was
cold, the officers waited an hour before adjusting the cuffs
and giving him a blanket. Id. at 882 (Brunetti, J.,
concurring). The Court of Appeals for the Ninth Circuit
labeled the officers' conduct "wanton[ ] and callous[ ]" and
found that this was an example of the "unusual case"
envisioned by Summers. Id. at 876-78. Accordingly, the
court reversed a bench trial judgment in favor of the
officers. Id. at 874. Moreover, in a concurring opinion, one
judge stated that the officers' conduct was so egregious as
to preclude any claims of qualified immunity on remand. Id.
at 878-80 (Reinhardt, J., concurring).

In Baker v. Monroe Township, 50 F.3d 1186 (3d Cir.
1995), we indicated that officers acted excessively when
they handcuffed a mother and her teenage children who
happened to be approaching a residence for a social visit
when the officers arrived to execute a search warrant. See
id. at 1192-94. The plaintiffs claimed that the officers left
them handcuffed for 25 minutes and pointed guns at them.
Id. at 1189, 1192-93. Noting that the "use of guns and
handcuffs must be justified by the circumstances," id. at
1193, we reversed a summary judgment in favor of an
officer, holding that a Fourth Amendment violation could be
established if the plaintiffs' allegations regarding their
treatment were true. See id. at 1192-94 ("[T]he appearances
were those of a family paying a social visit . . .[T]here is
simply no evidence of anything that should have caused the
officers to use the kind of force they are alleged to have
used.").5

Viewing the facts in the light most favorable to appellees,
we are of the view that the agents' treatment of Torres was
_________________________________________________________________

5. Baker did not present a qualified immunity issue. Rather, the district
court had granted summary judgment in favor of an officer on the
ground that there was insufficient evidence to establish that he had
participated in or had knowledge of the treatment the plaintiffs suffered.
Baker, 50 F.3d at 1189. We reversed, holding that the plaintiffs'
testimony, if true, would support a Fourth Amendment claim against the
officer. See id. at 1192-94.

                               10
lawful.6 The agents left Torres on the floor for only five
minutes, and then helped him to the couch, where he still
had his towel to cover himself. Moreover, the agents
permitted Dominguez and the children to sit with Torres
while the search was conducted. The agents directed"nice
comments" to the children, and they permitted Dominguez
to prepare breakfast for the children. The agents also
permitted Dominguez to call her supervisor to say that she
would be missing work. The agents loosened Torres's
handcuffs after he twice indicated to them that they were
too tight. The agents did not point their guns after the
initial moments following their entry into the home, and
Torres testified that the agents "didn't harm any of us."
Further, the duration of the search was not excessive under
the circumstances, given the size of the home (two stories
plus a basement).

On these facts, the agents' conduct is far from analogous
to the excessive behavior of the officers in Franklin and
Baker. As the Supreme Court indicated in Summers, the
execution of a narcotics search warrant "may give rise to
sudden violence or frantic efforts to conceal or destroy
evidence," and thus officers are entitled to"routinely
exercise unquestioned command of the situation."
Summers, 452 U.S. at 702-03, 101 S.Ct. at 2594. The
agents had good reason to fear violence or destruction of
evidence as they entered the appellees' home because they
had cause to believe that the premises was a key location
in a large-scale cocaine ring. Further, Torres informed the
agents in the initial moments of the search that there were
two weapons in the home. Moreover, the agents retrieved
firearms, a Glock 9mm semiautomatic and a Ruger .357
magnum, which might be associated with a violent drug
operation. The officers also found ammunition for a third
type of firearm that they did not locate during their search
but which they feared might be present.
_________________________________________________________________

6. We note that determining whether officers have used excessive force is
a fact-specific inquiry, taking into account such factors as the severity
of
the crime, any threat to officer safety, any active resistance, and any
injury resulting to the person restrained. See Mellott v. Heemer, 161 F.3d
117, 122 (3d Cir. 1998), cert. denied, 119 S.Ct. 2051 (1999).

                               11
The circumstances confronting the agents were such that
they had reason to be concerned for their safety.
Accordingly, we conclude that the agents acted lawfully in
their treatment of Torres. Therefore, they are entitled to
qualified immunity with respect to claims regarding that
treatment.

B. Extent of the Search

The second question before us is whether the agents
acted lawfully in searching beyond the basement of the
home. If they did, then they were entitled to qualified
immunity on this claim as well because the appellees would
not have "alleged a deprivation of a constitutional right at
all." Lewis, 523 U.S. at 841 n.5, 118 S.Ct. at 1714 n.5.

The warrant authorized a search of "the property known
as 3936 N. 5th Street, Philadelphia, PA." Although the
probable cause affidavit stated that Nieves stored cocaine in
five-gallon cans in the basement of the premises, the
affidavit recited other items the location of which were not
expressly limited to any particular portion of the building.
The affidavit stated that "[w]hile inside the premises with
NIEVES in January, 1996" the confidential informant saw
"diluents [sic], a scale, a heat sealer for the packages of
cocaine, and a vise which NIEVES used to crush the
hardpacked cocaine." Furthermore, according to the
affidavit, Nieves repeatedly told the confidential informant
that he was continuing to use 3936 North Fifth Street to
store and package cocaine, and the informant saw Nieves's
truck parked outside the building on January 3, 1997, just
a few weeks before the search warrant was executed.

The Supreme Court has stated that "[a] lawful search of
fixed premises generally extends to the entire area in which
the object of the search may be found." United States v.
Ross, 456 U.S. 798, 820, 102 S.Ct. 2157, 2170 (1982). In
this regard, we point out that courts specifically have held
that a warrant encompasses the authority to search the
entire building if the person who is the target of the search
has access to or control over the entire premises. See, e.g.,
United States v. Butler, 71 F.3d 243, 249 (7th Cir. 1995)
(where a building is being used as a single unit,"a finding
of probable cause as to a portion of the premises is

                                12
sufficient to support a search of the entire structure"; a
search of the entire premises is permitted where the target
of the investigation "exercised `dominion and control' over
the entire building or had access to the entire structure")
(citation omitted); United States v. Whitten, 706 F.2d 1000,
1008 (9th Cir. 1983) ("[A] warrant may authorize a search
of an entire street address while reciting probable cause as
to only a portion of the premises if they are occupied in
common rather than individually, if a multiunit building is
used as a single entity, if the [alleged wrongdoer] was in
control of the whole premises, or if the entire premises are
suspect."); see also 2 Wayne R. LaFave, Search and Seizure
S 4.5, at 41 (3d ed. Supp. 1999) ("The obvious point is that
when a resident apparently has the run of the premises,
there is no reason to conclude that the warrant must be
limited to the precise spot where the items sought
happened to be when observed on a prior occasion."); cf.
Jackson v. Byrd, 105 F.3d 145 (3d Cir.) (habeas corpus
petition denied in controlled substance constructive
possession case where lessee-petitioner had access and
control over all areas of an apartment even though the
substance was found in a bedroom occupied by petitioner's
brother), cert. denied, 520 U.S. 1268, 117 S.Ct. 2442
(1997).

The building at 3936 North Fifth Street was not a multi-
unit premises with separate areas controlled by separate
residents. Rather, it was a traditional two-story home with
bedrooms upstairs, a dining room and kitchen downstairs,
and a basement accessible through the dining room.
Accordingly, the warrant authorized the search of the entire
building and the appellees did not allege a violation of a
constitutional right at all on the scope of the search claim.
Therefore, the agents are entitled to qualified immunity on
that claim.

In reaching our result, we recognize that the appellees'
amended complaint with respect to the scope of the search
is very general, as it merely alleges that the agents
"conducted an excessive and unreasonable search."
Nevertheless, we are of the view that a plaintiff by a
generalized pleading should not be deemed to have alleged
a deprivation of a constitutional right so as to defeat a

                               13
claim of immunity when an inquiry into the undisputed
facts demonstrates that there is no basis for the claim.
After all, the Supreme Court in Anderson v. Creighton, 483
U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39 (1987), made it
clear that when an officer claims immunity on the ground
that he or she did not violate a clearly established
constitutional or statutory right of which a reasonable
person would have known the plaintiff 's claim must be
considered in a specific context rather than in an abstract
generalized sense. We think that the same standard must
be applied in determining whether a plaintiff has alleged a
violation of a constitutional right in the first place.

C. Damage to the Home

The district court found that there was no evidence to
support appellees' allegation that the agents caused
excessive damage to doors, ceilings, walls, and other
property inside the home, but nevertheless declined to
grant summary judgment because the agents' motion
papers did not specifically address the property damage
claim. We are constrained to dismiss the appeal insofar as
it relates to this claim because we are without power to
inquire into the sufficiency of a plaintiff 's evidence on an
appeal from a denial of qualified immunity. See Johnson v.
Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 2156 (1995).
Despite the district court's view, we find that on the record
before us there are questions of fact relating to the
allegation that the agents caused excessive damage once
inside the premises. While we do not foreclose the agents
from making another motion for summary judgment on the
point, see Behrens v. Pelletier, 516 U.S. 299, 306-11, 116
S.Ct. 834, 838-41 (1996), as the record now stands, the
appellees' claim with respect to excessive damage must be
resolved at trial. We do point out, however, that because it
could be anticipated that contraband would be secreted, a
reasonable officer would believe that at least in some
circumstances he or she would not violate clearly
established constitutional or statutory rights of which a
reasonable person would have known in damaging a
premises in executing a search warrant.

D. Agent Donahue

While the district court believed that Donahue was
present when the warrant was executed, the parties agree

                               14
that he was not there. Accordingly, Donahue is entitled to
qualified immunity as to all of appellees' claims arising
from the execution of the warrant. Of course, this
conclusion takes him out of the case, as the district court
found that the appellees failed to allege a constitutional
violation up to and including the agents' initial entry into
the appellees' home.

IV. CONCLUSION

Donahue is entitled to qualified immunity with respect to
each of the claims at issue on this appeal. The other agents
are entitled to qualified immunity with respect to the
handcuffing of Torres and their conduct in searching
beyond the basement of the home, but their appeal will be
dismissed with respect to appellees' claim that they did
excessive damage during the search. Accordingly, we will
remand the matter to the district court to enter summary
judgment on all issues in favor of Donohue and to enter
summary judgment in favor of the other agents to the
extent that they are entitled to qualified immunity. The
parties will bear their own costs on this appeal.

A True Copy:
Teste:

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

                               15
