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. e du/thir dc ir c uit_1999/333Filed 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; Jose ph 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 desi gnation.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 fr om the district court's order partially denying appell ants' motion seeking summary judgment on qualified immuni ty grounds. The appellants are Drug Enforcement Administatration ("DEA") agents who applied for a s earch warrant for the appellees' residence and executed t he warrant the next day. The issues on appeal relate t o the execution of the warrant. The search was an aspect of an extensive DEA investigation into a large cocaine di stribution ring reputedly run by Geraldo Nieves. During the investigation, the DEA secured the cooperation of B lake O'Farrow, who had been a participant in the Nieves ring. O'Farrow informed DEA Special Agent Matthew Donahue in

2September and November 1996, and again in January

1997, that Nieves was using a house at 3936 North F ifth Street in Philadelphia for storing, cutting, and ba gging
cocaine.

Based on the information obtained from O'Farrow, as well as other information secured during the investigati on of the Nieves ring, Donahue prepared a probable cause affi davit and submitted it to a magistrate judge on January 3 0, 1997. That day, the magistrate judge signed a warra nt 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 seal er, scales, and a vice [sic]."

At approximately 6:00 a.m. on the next day, DEA Age nts Martin Caplan, Maureen Kelly, Joseph Capone, and
Jonathan Cohen went to 3936 North Fifth Street to e xecute the warrant.1 Donahue, however, did not go to the p remises with the other agents. The occupants of the house w ere asleep when the agents arrived but appellee Rosa Ma ria Dominguez awoke to the sound of metal rattling. She went back to sleep only to reawaken to the sound of knoc king and the agents' voices identifying themselves. Appe llee Juan Angel Torres, who was sleeping in the same roo m, 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. To rres attempted to signal to the agents that Dominguez wo uld 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 th e floor. The agents placed Torres but not Dominguez i n handcuffs. The agents asked whether there were any weapons in the house, and Torres told them the loca tion of
two firearms in his bedroom. After he had been on t he floor for about five minutes, Torres, still clad in his t owel, was

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

3helped to the living room couch. Dominguez then was

permitted to attend to the couple's two children up stairs. 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 wid e estimates for the duration of the search, varying f rom one and one-half to three hours. During this time, Torr es (who remained handcuffed), Dominguez, and the children s at together on the couch. At some point, the agents pe rmitted Dominguez to make breakfast for the children, and, in Torres's words, the children received nothing but"n ice comments" from the agents. Eventually, the agents r emoved the handcuffs and allowed Torres to get dressed so that he could escort the agents to the building where he wo rked.2

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

B. Procedural History

Appellees filed their complaint in the district cou rt on September 16, 1997. Ultimately, after amendments, t he appellees asserted that they were entitled to recov er under the Federal Tort Claims Act and directly under the
Constitution for Fourth and Fifth Amendment violati ons with respect to the issuance and execution of the w arrant. See Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Foll owing discovery, the agents moved for summary judgment, a nd the district court partially granted their motion a nalyzing the appellees' claims under the Fourth Amendment al one.

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

4The district court held that appellees failed to al lege a

constitutional violation with respect to the agents ' conduct up to and including the initial entry into appellee s' home. In this regard, the court first determined that the re 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 locati on. In so ruling, the court declined to place any signific ance in the
fact that the warrant misdescribed the color of the front
door of the home as the court found that this mista ke was "trivial" given that the warrant otherwise describe d appellees' home accurately. The court then ruled th at the agents acted lawfully in using a battering ram to b reak

down the front door.

The district court, however, refused to grant summa ry judgment to the agents with respect to their conduc t once they entered the home. Although the court found tha t their treatment of Dominguez and the children was "reason able, and indeed, duly considerate under the circumstance s," the court was "unable to find that the agents' conduct . . . was reasonable and not excessive" with respect to Torre s's handcuffing for the duration of the search.

The court then concluded that the agents exceeded t he scope of the warrant when they searched the appelle es' entire home rather than just the basement. Although the warrant specifically authorized a search of "the pr operty known as 3936 N. 5th Street, Philadelphia, PA," the court determined that the warrant was "circumscribed" by the supporting probable cause affidavit, which stated t hat
cocaine was stored in the basement. The court then indicated, however, that it was "possible" that exi gent circumstances (specifically, the presence of weapon s and ammunition) justified a broader search of the entir e home.

Overall the district court's memorandum opinion is ambiguous with respect to its disposition of the ag ents' motion for summary judgment on the basis of qualifi ed 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" s uggests
that the court found a factual issue for trial and hence

5denied summary judgment. Indeed, even the agents ar e

uncertain as to how the court ruled for they explai n in their reply brief that the "district court appears to hav e found that the scope of the search was probably supported by exigent circumstances, but reserved judgment." Repl y br. at 4 n.2.3 Moreover, the agents in their opening brief defended the validity of the search to the extent that it we nt beyond the basement. Plainly, they would have had no reaso n to brief that issue if they had been granted summary judgment on it. In the circumstances, we conclude t hat the district court denied summary judgment with respect to appellees' claims that the search unconstitutionall y exceeded the scope of the warrant.

The district court further ruled that the agents ac ted 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, grante d summary judgment in the agents' favor as to the sei zure of items from appellees' home.

The court also addressed appellees' allegation that the agents "destroy[ed] doors, ripp[ed] out ceilings an d walls and overturn[ed] clothes and toys" during the searc h. The court found no evidence in the record to support th is allegation, but refused to grant the agents summary judgment on the issue because their motion papers d id not specifically address the property damage claim. Fin ally, the court held that appellees lacked standing to mainta in any claims with respect to warrantless searches of othe r properties (specifically, Torres's place of employm ent and property belonging to Torres's father) which allege dly took place on the day in question.

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

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3. Actually, the agents hedge on the point as they also contend that the district court "granted qualified immunity and rule d in favor of the defendants on all but two of [appellees' constituti onal] claims: the duration of the restraint of Torres, and excessive damage to the residence." Reply br. at 2. It appears that the age nts 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 u nwilling to forego briefing the issue.

6appeal 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 th e district court should have granted qualified immunity to the m with respect to the following aspects of their conduct i n executing the search warrant: (1) leaving Torres ha ndcuffed for the duration of the search; (2) searching the e ntire premises rather than just the basement; and (3) cau sing 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 t his appeal under 28 U.S.C. S 1291 pursuant to the colla teral order doctrine, as applied to qualified immunity ca ses. 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]overn ment officials performing discretionary functions are`sh ielded from liability for civil damages insofar as their c onduct does not violate clearly established statutory or consti tutional rights of which a reasonable person would have know n.' " Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997 ) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 1 02 S.Ct. 2727, 2738 (1982)); In re City of Philadelphia Liti g., 49 F.3d 945, 961 (3d Cir. 1995). The inquiry when a defenda nt claims qualified immunity is "whether a reasonable officer
could have believed that his or her conduct was law ful, in light of the clearly established law and the inform ation in the officer's possession." Sharrar, 128 F.3d at 826 . Officers who "reasonably but mistakenly" conclude that their

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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 cour t partially granted and partially denied the government's motion for summar y judgment on the Tort Claims Act issues but those dispositions as we ll are not before us.

7conduct is lawful are thus entitled to immunity. Id . A court,

however, need not consider whether the right implic ated was clearly established at the time of the events i n 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. Gi lley, 500 U.S. 226, 111 S.Ct. 1789 (1991); Larsen v. Senate o f 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 ex ecution of the search. If they did, then they were entitled to qualified immunity because the appellees would not have "alle ged a deprivation of a constitutional right at all." Lewi s, 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 presen t 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 imp licitly 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 ri se to
sudden violence or frantic efforts to conceal or de stroy evidence," and thus the risk of harm to officers an d occupants alike "is minimized if the officers routi nely exercise unquestioned command of the situation." Id . at 702-03, 101 S.Ct. at 2594. The Supreme Court indica ted that the officers might exceed their proper authori ty in an "unusual case" involving "special circumstances, or possibly a prolonged detention," but the "routine" detention
of residents while a search is conducted is constit utional. Id. at 705 n.21, 101 S.Ct. at 2595 n.21.

Further, case law has indicated that at least in ce rtain circumstances officers lawfully may handcuff the oc cupants

8of the premises while executing a search warrant. I n United

States v. Fountain, 2 F.3d 656 (6th Cir. 1993), off icers executing a search warrant for narcotics and firear ms handcuffed the occupants of the house and forced th em to lie face down on the floor while they conducted the search. Id. at 659-60. The Court of Appeals for the Sixth C ircuit
held that the detention was reasonable under the Fo urth

Amendment:

When occupants of a residence are detained during the execution of a search warrant, the circu mstances ordinarily will justify more intrusive behav ior by the police than in a typical on-the-street deten tion. When the ATF agents entered Fountain's home pursu ant to the warrant to search for narcotics, they fa ced a confined, unfamiliar environment that was li kely to be dangerous. [The occupants] were handcuffed a nd forced to lie face down on the living room f loor while the search was conducted. Concern for safety of the agents and the need to prevent disposal of a ny narcotics on the premises, justified the res traint of the occupants, particularly under the circumstan ces of this case, where the search was part of a narcoti cs investigation and weapons had been seized fr om the home just one month earlier. The `character' of the intrusion on [the occupants] and its `justif ication' were reasonable and proportional to law enforceme nt's legitimate interests in preventing flight in the event incriminating evidence is found and in minim izing the risk of harm to officers. Those concerns pla inly outweighed the intrusion experienced by [the occupants] in being required to be on the li ving 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 handc uffs 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 execu ting a warrant violated the Fourth Amendment when they car ried a seriously disabled man from his bed and left him

9handcuffed on a couch for over two hours with nothi ng to

cover the lower half of his body. Id. at 874-78. Th ough 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 Cir cuit labeled the officers' conduct "wanton[ ] and callou s[ ]" 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 t he officers. Id. at 874. Moreover, in a concurring opi nion, one judge stated that the officers' conduct was so egre gious as to preclude any claims of qualified immunity on rem and. 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 w ho happened to be approaching a residence for a social visit
when the officers arrived to execute a search warra nt. See id. at 1192-94. The plaintiffs claimed that the off icers 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 regardin g their treatment were true. See id. at 1192-94 ("[T]he app earances were those of a family paying a social visit . . .[ T]here is simply no evidence of anything that should have cau sed the officers to use the kind of force they are alleged to have used.").5

Viewing the facts in the light most favorable to ap pellees, we are of the view that the agents' treatment of To rres was

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

10lawful.6 The agents left Torres on the floor for on ly five

minutes, and then helped him to the couch, where he still had his towel to cover himself. Moreover, the agent s permitted Dominguez and the children to sit with To rres while the search was conducted. The agents directed "nice comments" to the children, and they permitted Domin guez to prepare breakfast for the children. The agents a lso permitted Dominguez to call her supervisor to say t hat she would be missing work. The agents loosened Torres's
handcuffs after he twice indicated to them that the y were too tight. The agents did not point their guns afte r the initial moments following their entry into the home , and Torres testified that the agents "didn't harm any o f us." Further, the duration of the search was not excessi ve under the circumstances, given the size of the home (two stories plus a basement).

On these facts, the agents' conduct is far from ana logous
to the excessive behavior of the officers in Frankl in and Baker. As the Supreme Court indicated in Summers, t he execution of a narcotics search warrant "may give r ise to
sudden violence or frantic efforts to conceal or de stroy evidence," and thus officers are entitled to"routin ely 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 destruct ion of evidence as they entered the appellees' home becaus e they had cause to believe that the premises was a key lo cation in a large-scale cocaine ring. Further, Torres info rmed the agents in the initial moments of the search that th ere were two weapons in the home. Moreover, the agents retri eved firearms, a Glock 9mm semiautomatic and a Ruger .35 7 magnum, which might be associated with a violent dr ug operation. The officers also found ammunition for a third type of firearm that they did not locate during the ir search but which they feared might be present.

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6. We note that determining whether officers have u sed excessive force is a fact-specific inquiry, taking into account such f actors as the severity

of the crime, any threat to officer safety, any active resistance, and any injury resulting to the person restrained. See Mell ott v. Heemer, 161 F.3d 117, 122 (3d Cir. 1998), cert. denied, 119 S.Ct. 20 51 (1999).

11The circumstances confronting the agents were such that

they had reason to be concerned for their safety. Accordingly, we conclude that the agents acted lawf ully in their treatment of Torres. Therefore, they are enti tled 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 quali fied immunity on this claim as well because the appellee s 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 kn own 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, t he
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 premi ses with NIEVES in January, 1996" the confidential informant saw "diluents [sic], a scale, a heat sealer for the pac kages 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 Stre et to store and package cocaine, and the informant saw Ni eves's truck parked outside the building on January 3, 199 7, just

a few weeks before the search warrant was executed.

The Supreme Court has stated that "[a] lawful searc h of fixed premises generally extends to the entire area in which the object of the search may be found." United Stat es 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 i s

12sufficient to support a search of the entire struct ure"; a

search of the entire premises is permitted where th e target of the investigation "exercised `dominion and contr ol' over the entire building or had access to the entire str ucture") (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 occup ied in common rather than individually, if a multiunit bui lding is used as a single entity, if the [alleged wrongdoer] was in control of the whole premises, or if the entire pre mises are suspect."); see also 2 Wayne R. LaFave, Search and Seizure S 4.5, at 41 (3d ed. Supp. 1999) ("The obvious poin t is that when a resident apparently has the run of the premi ses, there is no reason to conclude that the warrant mus t 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 cor pus petition denied in controlled substance constructiv e 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 petiti oner's brother), cert. denied, 520 U.S. 1268, 117 S.Ct. 24 42 (1997).

The building at 3936 North Fifth Street was not a m ultiunit premises with separate areas controlled by sep arate residents. Rather, it was a traditional two-story h ome with bedrooms upstairs, a dining room and kitchen downst airs, and a basement accessible through the dining room. Accordingly, the warrant authorized the search of t he entire building and the appellees did not allege a violati on of a constitutional right at all on the scope of the sea rch claim. Therefore, the agents are entitled to qualified imm unity on
that claim.

In reaching our result, we recognize that the appel lees' amended complaint with respect to the scope of the search is very general, as it merely alleges that the agen ts
"conducted an excessive and unreasonable search." Nevertheless, we are of the view that a plaintiff b y a generalized pleading should not be deemed to have a lleged a deprivation of a constitutional right so as to de feat a

13claim of immunity when an inquiry into the undisput ed

facts demonstrates that there is no basis for the c laim. After all, the Supreme Court in Anderson v. Creight on, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39 (1987), m ade it clear that when an officer claims immunity on the g round that he or she did not violate a clearly establishe d constitutional or statutory right of which a reason able 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 a lleged a violation of a constitutional right in the first pl ace.

C. Damage to the Home

The district court found that there was no evidence to support appellees' allegation that the agents cause d excessive damage to doors, ceilings, walls, and oth er property inside the home, but nevertheless declined to grant summary judgment because the agents' motion papers did not specifically address the property da mage claim. We are constrained to dismiss the appeal ins ofar as it relates to this claim because we are without pow er to inquire into the sufficiency of a plaintiff 's evid ence on an appeal from a denial of qualified immunity. See Joh nson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 2156 (199 5). Despite the district court's view, we find that on the record before us there are questions of fact relating to t he 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 m ust be resolved at trial. We do point out, however, that b ecause it could be anticipated that contraband would be secre ted, a
reasonable officer would believe that at least in s ome circumstances he or she would not violate clearly established constitutional or statutory rights of w hich 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

14that he was not there. Accordingly, Donahue is enti tled to

qualified immunity as to all of appellees' claims a rising from the execution of the warrant. Of course, this conclusion takes him out of the case, as the distri ct court found that the appellees failed to allege a constit utional violation up to and including the agents' initial e ntry into the appellees' home.

IV. CONCLUSION

Donahue is entitled to qualified immunity with resp ect to each of the claims at issue on this appeal. The oth er agents are entitled to qualified immunity with respect to the handcuffing of Torres and their conduct in searchin g beyond the basement of the home, but their appeal w ill be dismissed with respect to appellees' claim that the y did excessive damage during the search. Accordingly, we will
remand the matter to the district court to enter su mmary judgment on all issues in favor of Donohue and to e nter summary judgment in favor of the other agents to th e 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