1999 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Torres v. United States" (1999). 1999 Decisions. Paper 333.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/333
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 multiunit 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