Offenses by Officers & Employees of U.S. Page5

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Although Michael does grapple with the apparent conflict between the Mandamus and Venue Act, 28 U.S.C. §1361, and the Anti-Injunction act, it does not support Plaintiff's position. The Michael court found that the Mandamus Act did "not override the Anti-Injunction Act." Id. at 506. The Court held that in order to prevail, the plaintiff had to "show either that its claim does not implicate the Anti-Injunction Act or that it fits within the narrow exception to that act." Id. The Court in Michael then went on to enumerate the factors that must be present in order to invoke the Enochs exception: (1) "irreparable injury, the essential prerequisite for injunctive relief in any case," and (2) "certainty of success on the merits." Id. In reversing the district court's dismissal of Plaintiff's claim, the Michael court ultimately found that the plaintiff had established irreparable injury and had established that, "under the most liberal view of the law and facts, the United States cannot establish its claim." Id.; see also Davidson, supra. (denying injunctive relief based on the Anti-Injunctive Act because it could not be said that the government would be unable to establish the validity of assessments made and taxpayers did not establish lack of legal remedy).

Here, Plaintiff has not established that his claim does not implicate the Anti-Injunction Act or that the claim fits within the narrow exception to that Act. See Bowers v. United States [70-2 USTC ¶9560], 423 F.2d 1207 (5th Cir. 1980) (dismissing taxpayer's suit holding that he did not establish that his case fell within the judicial exception to the Anti-Injunction Act); see also Keese v. United States [86-1 USTC ¶9389], 632 F.Supp. 85 (S.D. Tex 1985) (dismissing a suit brought by an income tax preparer finding that the preparer failed to establish an irreparable injury beyond conclusory allegations that the IRS was injuring her business and reputation or that the government would under no circumstances prevail). Recognizing that the Federal Rules of Civil Procedure prescribe a liberal pleading standard, the Court GRANTS Plaintiff leave to Amend his Complaint in accordance with this Order so that he may clarify what equitable relief, if any, he may be entitled to. If Plaintiff desires to submit an amended complaint, it must be filed within fifteen (15) days of receipt of this Order.

The Court recognizes, as delineated above, that certain exceptions exist to allow equitable relief despite the Anti-Injunction Act's prohibition of such relief. The injunctive relief, however, when granted, is always in conjunction with a claim of some wrongdoing. In a typical case, the wrongdoing would involve the levy of an unlawful tax assessment by the IRS against a taxpayer. If this is the case here, Plaintiff, in his second amended complaint needs to identify the tax assessment that was wrongfully assessed so that the Court can address Plaintiff's claim as it relates to that allegedly unlawful action. As drafted, Count One of Plaintiff's Amended Complaint references the general factual scenario and mentions a laundry list of alleged statutory violations: Circular 230 of the Internal Revenue Code, Sections 6103, 7214, 7431, 7435, 7521(b) and (c), and 7605(b) of the Internal Revenue Code, various rules for practice before the Internal Revenue Service, as well as IRS internal policies regarding the improper inspection and disclosure of Plaintiff's income information, the unauthorized maintenance of files on Plaintiff, the illegal interview of Plaintiffs employees, and the improper enticement of Plaintiff's representatives. Count One does not, however, allege, or specify in any way what activity constitutes a violation of the statutes listed therein.

Accordingly, the Court GRANTS Defendants' Motion to Dismiss Plaintiff's claim for injunctive relief in Count One but grants Plaintiff leave to amend his Complaint a second time.

2. Plaintiff's Claim pursuant to 26 U.S.C. §7431

Counts One, Two and Three of Plaintiff's Complaint, as amended, allege the violation of 26 U.S.C. §7431. Section 7431 states that if any officer or employee of the United States knowingly or negligently inspects or discloses any return or return information with respect to a taxpayer in violation of any provision of section 6103, such taxpayer may bring a civil action for damages against the United States . 26 U.S.C. §7431. Section 6103 states that no officer or employee of the United States shall disclose any return or return information obtained by him in any manner in connection with his service as such officer or an employee. 26 U.S.C. §6103.

Defendants argue that Plaintiff fails to state a claim for which relief can be granted because Plaintiff (1) has not identified the specific return or return information that was unlawfully disclosed, and (2) has not alleged the disclosure of any information that would be defined as "return information." Defendants argue that Plaintiff can not state a claim under Section 7431 for the disclosures made with respect to Joan Martin as the statute allows recovery only for information pertaining to the taxpayer-litigant, Plaintiff in this case, and not an "associate" of Plaintiff.

Plaintiff argues generally that the Federal Rules of Civil Procedure reject the notion that pleadings should be construed strictly so that judgments are rendered on the skill of a litigant in drafting pleadings rather than on the substance of the case. Plaintiff maintains that construed liberally, his Complaint sufficiently states a claim for which relief can be granted. In addition to this general argument, Plaintiff specifically argues that Section 7431 provides a cause of action for the unlawful inspection or disclosure of returns and that his Complaint has sufficiently stated a claim under both theories.

Defendants' Motion does not address Plaintiff's claim of an unlawful inspection. Nor does the sole case cited by Defendants address the unlawful inspection prong of a claim pursuant to Section 7431. The Court notes that 26 U.S.C. 7431 was amended in 1997 to include liability for unlawful inspection as well as the already existing unlawful disclosure. See 26 U.S.C. 7431 (2000), amended by Taxpayer Browsing Protection Act, PL 105-35,11 Stat. 1104, August 5, 1997 . The decision in the case cited by Defendants was rendered in 1987, many years before this provision was enacted. See Flippo v. United States, 1987 U.S. Dist. LEXIS 16096 (W.D.N.C. May 13,1987).

Pretermitting an examination into the soundness of Defendants argument concerning Plaintiff's claim pursuant to Section 7431 for an unlawful disclosure in violation of 26 U.S.C. §6103, the Court finds that Plaintiff has stated a claim pursuant to Section 7431 for an unlawful inspection in violation of 26 U.S.C. §6103. Accordingly, the Court DENIES Defendants' Motion to Dismiss as it relates to Plaintiff's claim pursuant to 26 U.S.C. §7431.

The Court notes that Count Two of Plaintiff's Amended Complaint is also confusing as to which statutes are alleged to have been violated and which conduct on the part of Defendants comprised these violations. ¹⁰ The Court, therefore, orders Plaintiff to clarify Count Two in accordance with this Order when and if Plaintiff submits an Amended Complaint.

3. Plaintiff's Claim pursuant to 5 U.S.C. §552

One of the violations alleged to have been perpetrated by Defendants listed in Count Three of Plaintiff's Complaint, as Amended, is a violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. §552. Defendants argue that (1) the FOIA does not authorize suit against federal employees or officers and (2) the FOIA does not provide for the recovery of money damages. Defendants also argue that Plaintiff has not alleged that he has exhausted the administrative remedies available to him under the FOIA by submitting an administrative appeal to the appropriate agency officials.

Plaintiff's Response restates that Defendants violated the FOIA and the Privacy Act of 1974, 5 U.S.C. §552(a). ¹¹ The Response does not, however, respond to Defendants valid objections detailed above. Accordingly, the Court finds that Plaintiff's claim pursuant to the FOIA should be dismissed because (1) the FOIA does not authorize suit against federal employees or officers, (2) the FOIA does not provide for the recovery of money damages, and (3) Plaintiff has not alleged that he has exhausted the administrative remedies available to him under the FOIA by submitting an administrative appeal to the appropriate agency officials. Accordingly, the Court GRANTS Defendants' Motion to Dismiss as it relates to Plaintiff's claim pursuant to the FOIA, 5 U.S.C. §552. ¹²

4. Plaintiff's Claim pursuant to 26 U.S.C. §7214 ¹³

Defendants argue that §7214 does not create a private cause of action. See Nordbrook v. United States [2000-1 USTC ¶50,247], 96 F.Supp.2d 944, 948 (D. Ariz. 2000) (dismissing claim pursuant to 26 U.S.C. §7214, finding "no basis for implying a civil cause of action from these federal criminal code provisions"). They argue that the statute is a criminal statute and only the government has the authority to enforce its criminal laws. Plaintiff's Response argues that the Writ of Mandamus and Venue Act confers jurisdiction upon him to bring a suit to move the Court to enforce these provisions. Plaintiff provides no case law and does not elaborate on this claim.

Section 7214 does not grant this Court jurisdiction or waive the Government's sovereign immunity. It merely provides a criminal penalty for the unlawful acts of revenue officers or agents. Plaintiff has failed to state a claim. Accordingly, the Court GRANTS Defendants' Motion to Dismiss all of Plaintiff's claims pursuant to 26 U.S.C. §7214.

5. Plaintiff's Claim pursuant to 26 U.S.C. §7435

Defendants argue that Section 7435 provides a remedy to a taxpayer when an employee of the IRS compromises the determination of a tax due to a taxpayer in exchange for information from a representative about that taxpayer's tax liability. Defendants argue that the purview of the statute does not fit the factual scenario delineated in Plaintiff's Complaint, as amended. Section 7435 provides in relevant part:

(a) In general.--If any officer or employee of the United States intentionally compromises the determination or collection of any tax due from an attorney, certified public accountant, or enrolled agent representing a taxpayer in exchange for information conveyed by the taxpayer to the attorney, certified public accountant, or enrolled agent for purposes of obtaining advice concerning the taxpayer's tax liability, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. Such civil action shall be the exclusive remedy for recovering damages resulting from such actions.

26 U.S.C. §7435. Simply put, Defendants point out that Plaintiff's claim pursuant to Section 7435 involves Ms. Joan Martin with whom Plaintiff claims that he is affiliated and Plaintiff's Complaint, as amended, does not allege that Ms. Martin prepared his taxes, or that she was his power of attorney, or that he conveyed any information to her "for purposes of obtaining advice concerning the taxpayer's liability." Id. Defendants do not cite any case law for their proposition. Plaintiff avers that Ms. Martin represented him regarding the assessment of penalties in front of the IRS and Defendants were aware that she represented him.

It is not clear, accepting as true all the allegations contained in the Complaint, as amended, and viewing the allegations therein in the light most favorable to the plaintiff, that no relief could be granted pursuant to 26 U.S.C. §7435. Because there remains a question as to whether Ms. Martin "represented" Plaintiff for purposes of this statute, or in what capacity she represented Plaintiff, it is unclear that Plaintiff's claim does not fall within the purview of this statute. Accordingly, the Court DENIES Defendants' Motion to Dismiss all of Plaintiff's claims pursuant to 26 U.S.C. §7435.

6. Plaintiff's Claim pursuant to 26 U.S.C. §7217

Plaintiff's Complaint, as amended, includes a claim for a violation of 26 U.S.C. §7217. Defendants move to dismiss this claim on the grounds that the statute is only applicable to the President, Vice President, any employee of the executive office of the President, any employee of the executive office of the Vice President, or any individual other than the Attorney General, serving in a position specified in 5 U.S.C. §5312. Plaintiff did not respond to this portion of Defendants' Motion. Section 7217 provides:

It shall be unlawful for any applicable person to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.

26 U.S.C. §7217. The Court agrees with Defendants's position, Section 7217 is not applicable to the present case. Therefore, pretermitting any examination into Plaintiff's doubtful authority to enforce a criminal statute, the Court finds that this statute is inapplicable to the present suit and that Plaintiff has failed to state a claim. Accordingly, the Court GRANTS Defendants' Motion to Dismiss all of Plaintiff's claims pursuant to 26 U.S.C. §7217.

7. Plaintiff's Claims against the individual Defendants

Defendants argue that Plaintiff's claims against the named individual Defendants are, in actuality, claims against the acts those Defendants took in their official capacity as agents of the United States . As such, Defendants argue, Plaintiff's claims are really against the United States and the claims against the individual Defendants' should be dismissed. Plaintiff responds that the individual Defendants are liable under Bivens. ¹⁴ Defendants have not responded to this argument. ¹⁵ Because Defendants' Motion does not address this matter, the Court declines to grant Defendants' Motion at this time. Accordingly, the Court DENIES Defendants' Motion to Dismiss all of Plaintiff's claims against the individual Defendants.

D. Plaintiff's Motion to Compel

Plaintiff moves this Court to compel Defendants to file answers to the Mandatory Interrogatories. Defendants correctly point out that they have filed a Motion to Dismiss and until this Court rules on that Motion, Defendants are not required to answer the Mandatory Interrogatories. Accordingly, the Court DENIES Plaintiff's Motion to Compel [15].

E. Plaintiff's Motion for Oral Argument

Plaintiff requests the opportunity to orally argue the present Motion to Dismiss. The Court perceives no reason to entertain oral arguments. Accordingly, the Court DENIES Plaintiff's Motion for Oral Argument [20].

III. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion to Dismiss. The Court GRANTS Defendants' Motion as it relates to

(1) the claim for injunctive relief found in Count One of the Complaint;

(2) the Freedom of Information Act ("FOIA") claim(s), 5 U.S.C. §552;

(3) the claim(s) pursuant to 26 U.S.C. §7214; and

(4) the claim(s) pursuant to 26 U.S.C. §7217.

These claims are hereby dismissed. Defendants Motion as to all of the other claims is DENIED but the Court grants Defendants leave to refile the present Motion in relation to Plaintiff's remaining claims within fifteen (15) days of receipt of Plaintiff's Amended Complaint.

The Court hereby ORDERS Plaintiff within fifteen (15) days of receipt of this Order to submit an amended complaint that:

(1) specifically states which statutory violation(s) or cause(s) of action are alleged in each of the counts contained in the Amended Complaint; ¹⁶ and

(2) the alleged conduct on the part of Defendants that comprises said violations.

It is so ORDERED.

¹ This Order grants Plaintiff's Motion to Amend his Complaint. As such, the factual background herein reflects and includes the allegations contained in the Complaint, as amended.

² Plaintiff's Complaint, as amended, frequently refers to preparer penalties "against Defendant." The Court believes Plaintiff is meaning to refer to penalties assessed against himself and the Court will, therefore, interpret these allegations as penalties assessed against Plaintiff.

³ Although not explained, the Court assumes a "no change report" is a decision on the part of the Appeals Division finding that, rather than agreeing with the Macon Division's assessment increasing a taxpayer's tax obligation, the assessment of tax should not be changed from the taxpayer's original filing. The "no change report," in effect, overrules a Macon Division assessment that more tax is owed.

⁴ Plaintiff's less than artful explanation of this delaying tactic leaves the Court in a quandary as to what exactly occurred. For the purposes of this Motion, the Court will assume that Plaintiff's Complaint alleges that Defendants, in violation of the IRS Code, purposefully delayed the production of some report so that Plaintiff's clients were somehow deprived of their rights, thereby causing harm to him and his practice.

⁵ Decisions of the former Fifth Circuit rendered prior to October 1, 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

⁶ Plaintiff argues that Defendants should be enjoined from auditing any of Plaintiff's clients, any clients of any of Plaintiff's employees or clients of any tax return preparers associated with Plaintiff. Count One requests the Court to order Defendants to transfer all of Plaintiff's clients' existing cases to offices other than the Macon , Georgia Division. The Count further requests the Court to prohibit any of the Defendants from communicating with the IRS agents who may receive the transferred cases. Plaintiff also requests that Defendant Minsico be prohibited from supervising his cases.

⁷ Plaintiff's Complaint states: "Defendants [sic] Plaintiff's clients to file complaints against Plaintiff, interfering with Plaintiff's client relationships, accelerating third party summons to embarrass Plaintiff and his clients when not necessary, and necessary [sic] subjecting taxpayers to unnecessary examinations or investigations." The Court includes language extracted from Plaintiff's Complaint to ensure the Court has correctly summarized his Complaint herein.

⁸ The exceptions enumerated in Subsection (a) are inapplicable here: Section 1015 relates to the tax assessed to gifts or trusts; Sections 6212 and 6213 apply when a taxpayer seeks review by the Tax Court of a notice of deficiency; Section 6225 relates to tax assessed against partnership items; Section 6246 relates to adjustments made regarding partnership items; Section 6331 relates to the authority of the IRS to collect delinquent taxes; Section 6672(b) applies only when the responsible person has filed a bond within thirty days of the assessment to ensure collection; Section 6694 applies to certain return preparer penalty proceedings; Section 7426 applies in certain third-party wrongful levy actions and Section 7429 applies in proceedings to review jeopardy assessments.

⁹ The case law holds that it must be clear that the government cannot win "under the most liberal view of the facts and law." See Smith v. Rich [82-1 USTC ¶9206], 667 F.2d 1228, 1230 (5th Cir. 1982).

¹⁰ For example, Count Two alleges that Defendants illegally contacted Plaintiff's associate but does not state what statute that activity violates. Count Two also alleges violations of Sections 7412 and 7435 but does not specify what activity comprised these violations. Count Two of the Amended Complaint also alleges that Defendants' actions violate the Taxpayer Bill of Rights and give rise to a Bivens claim but does not elaborate on these assertions.

¹¹ Plaintiff's Response conflates the FOIA, 5 U.S.C. §552, with the Privacy Act of 1974, 5 U.S.C. §552a.

¹² Defendants, in footnote, argue that §552a(g)(1)(D) does not apply to the determination of a taxpayer's tax liability. Apparently Defendants read Plaintiff's Complaint to allege a violation of this particular provision. Although the Court understands why Defendants were confused as to what Plaintiff was alleging pursuant to the Privacy Act of 1974, the Court does not find that this argument is sufficient to dismiss Plaintiff's claim pursuant to the Privacy Act of 1974, 5 U.S.C. §552a. To the extent Defendants' Motion is moving to dismiss this claim, it is DENIED.

¹³ Defendants' Motion confuses 26 U.S.C. §7412 with 26 U.S.C. §7214. Plaintiff's Complaint, as amended, refers to both statutes. Because the statutory language cited by Defendants is identical to that found in §7214, the Court will assume that Defendants arguments address the claims by Plaintiff pursuant to that statute even though Defendants cite "§7412" in the title of this section of their Motion and at various other junctures in their argument.

¹⁴ To find liability under Bivens a plaintiff must have proof of an affirmative causal connection between the defendants acting and the alleged constitutional deprivation. See Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1983), cert. Denied, Lojuk v. Johnson, 474 U.S. 1067, 106 S.Ct. 822 (1986). A causal connection may be established by proving that the defendant was personally involved in the act or omission that led to a constitutional deprivation. Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986). In addition, the doctrine of respondeat superior does not apply in a Bivens action. Lojuk, supra.

¹⁵ Plaintiff's Amended Complaint was filed after Defendants filed the present Motion to Dismiss. The Amended Complaint included an allegation that Defendants were liable under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971).

¹⁶ This Second Amended Complaint should not include allegations for the claims pursuant to 5 U.S.C. §552, 26 U.S.C. §7214 and §7217, dismissed herein. Plaintiff is, however, invited to state with more clarity the claim, if any, for injunctive relief, and ordered to state with more clarity his remaining claims.

 

 

 

[2000-1 USTC ¶50,278] Daniel L. Leveto, and Margaret A. Leveto, Plaintiffs v. Robert A. Lapina, Richard W. Adams, Judy A. Graham, Suzi Hines, "Joe Rivera", and ten unknown IRS agents, Defendants

U.S. District Court, West. Dist. Pa. , 98-143 Erie , 2/5/2000

First Amendment: Seizure of documents.--A veterinarian's First Amendment rights were not violated by the IRS's seizure of documentary evidence from his business. He alleged only legal conclusions that he was denied the use and benefits of his written property with the intent to restrict his freedom of speech and that the investigation resulted from his involvement with a tax protest group. The IRS agents who conducted the search were entitled to qualified immunity regarding this allegation.

Fifth Amendment: Custodial investigation: Deprivation of property.--IRS agents had qualified immunity from a veterinarian's Fifth Amendment claim arising out of his custodial interrogation and the agents' alleged failure to provide his Miranda rights. His right against self-incrimination did not apply in his suit for money damages as it would in a criminal proceeding. Furthermore, he failed to state a claim regarding deprivation of property in connection with documents that were seized pursuant to lawful search warrants.

Miscellaneous constitutional attacks: Bivens-type claim: IRS agents: Scope of authority: Damage to reputation.--To the extent that a veterinarian claimed injury to his reputation based on IRS agents' alleged questioning regarding weapons, he failed to state a Bivens claim since even abusive verbal attacks do not violate the Constitution. Moreover, even if IRS agents improperly carried firearms during the search of his business premises, a Bivens action did not automatically arise from a failure to follow IRS procedures.

[Code Secs. 6103 and 7431 ]

Disclosure of return information: U.S. as proper defendant.--A veterinarian who marketed a book promoting the evasion of taxes failed to state a claim for unauthorized disclosures of confidential information against various IRS agents. The exclusive remedy for unauthorized disclosures is an action against the U.S. , rather than individual IRS agents.
[Code Sec. 7206 ]

Sixth Amendment: Right to counsel: Attachment of right.--A veterinarian's claim that his Sixth Amendment right to counsel was violated by IRS agents when he was allegedly forbidden to have any contact with an attorney during the search of his business premises was dismissed. He was never formally charged with a tax offense and, thus, had no clear right to an attorney.
[Code Sec. 7206 ]

Fraud offenses: Conspiracy to evade taxes: IRS investigation: Search warrants.--Search warrants issued in connection with an IRS investigation of a veterinarian who marketed a book promoting the evasion of taxes were sufficiently specific. The warrants limited the search to documentary evidence related to violations of the Code concerning possible conspiracy to evade taxes. The fact that the warrant failed to name the taxpayer or his wife was not fatal to its validity since it only had to identify the place to be searched and the targets of seizure.
[Code Sec. 7214 ]

Damages: IRS conduct: Search and seizure: No criminal conviction.--A veterinarian who marketed a book promoting the evasion of taxes could not recover damages against the agents in connection with the search of his business and the seizure of documentary evidence under Code Sec. 7214 . No revenue agent had been convicted of any crime in connection with his case.
[Code Sec. 7402 ]

Fourth Amendment: Search and seizure: Qualified immunity: Warrant: Affidavit in support of: Scope of warrant.--An IRS agent had qualified immunity from liability in connection with a taxpayer's Fourth Amendment claims arising out of the search of his business and the seizure of documentary evidence. The agent's affidavit provided ample probable cause to support the issuance of search warrants since it included details of the IRS investigation of the taxpayer and information given by confidential informants and outside sources. The taxpayer's contention that the informants' statements were hearsay was irrelevant; hearsay is permitted to establish probable cause for a warrant. Further, there was no evidence that the agent misrepresented any material fact in obtaining the warrant.

[Code Sec. 7402 ]

District Court: Default judgment: Service of process.--A veterinarian who filed a claim for damages against IRS agents who searched his business and seized documents was not entitled to a default judgment against agents who failed to respond to the complaint. The agents were never served with process.
[Code Sec. 7433 ]

Fourth Amendment: Search and seizure: Scope of search: Pat-down and detention: Conspiracy.--IRS officers who conducted a search of a veterinarian's business did not go beyond the scope of a valid warrant in allegedly "ransacking" the taxpayer's office. That the officers may have seized a large amount of documentation was reasonable and did not rise to the level of a constitutional violation. Furthermore, the agents' brief pat-down and detention of the taxpayer and his wife at the search sites did not give rise to a Fourth Amendment violation since it was reasonable under the circumstances. Additionally, the taxpayer's claim that the agents conspired against him was dismissed as insufficiently specific.

[Code Sec. 7608 ]

Constitutional claims: Bivens-type claim: Search warrant: Authority of CID.--A veterinarian who marketed a book promoting strategies to avoid federal income taxes failed to state a Bivens-type claim against IRS agents for violations of his constitutional rights arising out of the search of his home and business. The reference in Code Sec. 7608 to "Intelligence Division" did not limit the authority of an IRS Criminal Investigation Division (CID) agent to present an affidavit of probable cause for the search warrants.

OPINION

CAHILL, JR., Senior District Judge:

This is a Bivens ¹ action against various known and unknown IRS agents. Plaintiffs allege that the defendants violated various constitutional and statutory rights of the plaintiffs by conducting a search of their personal residence and business premises. Presently before the court are defendants' motion to dismiss, plaintiffs' motion for entry of default, plaintiffs' "Motion for In Camera Review to Determine if Proper Procedures and Safeguards Have Been Followed to Protect Electronically Monitored Evidence", and plaintiffs' "Motion for Contempt and to Seek Enforcement of Court Order."

I. BACKGROUND

A. Factual Allegations

1. Lapina Affidavit

Plaintiff Daniel L. Leveto is a veterinarian who practices out of the Langdon and Leveto Veterinary Hospital at 316 Conneaut Lake Road , Meadville , Pennsylvania . Dr. Leveto was the main target of an undercover operation that began in December of 1994. On May 1, 1996 , IRS special agent Robert A. Lapina, who at that time had nearly nine years' experience in the IRS's Criminal Investigation Division ("IRS-CID"), submitted a 27 page, signed affidavit ("Lapina Affidavit") to Magistrate Judge Susan Paradise Baxter, explaining the history of the IRS-CID's still-ongoing investigation into possible tax evasion by Dr. Leveto. The Lapina Affidavit is attached as Exhibit B to plaintiffs' "Motion to Bring Essential Evidence into Custody of the Court." ² According to the affidavit, Dr. Leveto and his wife, plaintiff Margaret A. Leveto, file joint federal income tax returns. The Levetos were suspected of willfully attempting to evade personal income tax liabilities, in violation of 26 U.S.C. §7201, willfully making materially false income tax returns for the years 1991 through 1994, in violation of 26 U.S.C. §7206(1), and conspiracy to defraud the United States in violation of 18 U.S.C. §371.

Included in the Lapina Affidavit is a description of a book entitled "Tax Free, How the Super Rich Do It", written by Don Turner, also a target of the investigation, who previously served 18 months in prison for income tax related violations. Dr. Leveto stated to a confidential informant that he (Dr. Leveto) was the only individual in the United States who was marketing this publication. He promoted the book to one confidential informant and to the undercover agent, and later sold a copy of this book to the undercover agent. The book advocates the use of "colatos", which stands for (c)ommon (l)aw (t)rust (o)rganizations, and advises that individuals can sell their business to a foreign "colato" and then receive the profits from this business in the form of non-income sources. The foreign "colato" is responsible for filing a 1040 Non-Resident Alien federal income tax return ("1040NR"). Instead of paying tax on the profits, the foreign "colato" can elect to distribute these profits to another foreign "colato", thereby converting income earned in the United States to foreign source income.

The IRS apparently had reason to suspect that Dr. Leveto, possibly with the help of Mr. Turner, was practicing the tax-evasion techniques espoused in this publication. For example, the undercover agent had numerous conversations with Dr. Leveto about how to go about setting up a "foreign colato." These conversations are detailed in the Lapina Affidavit. According to the Lapina Affidavit, Dr. Leveto also explained to a confidential informant that Dr. Leveto became involved in an "association" which could help the confidential informant reduce and/or eliminate paying income taxes. Dr. Leveto explained that once he (Dr. Leveto) joined the "association," he sold his business to either a person or organization, outside the United States . Leveto told the confidential informant that since the business was sold, he receives only wages from this foreign individual/entity when in reality he still controls all of the gross receipts of the veterinarian business. Leveto told the confidential informant that as a result of this, he pays only as much tax as he wants to. On another occasion, Dr. Leveto stated to a confidential informant that he pays only what he considers to be his "fair share" of taxes.

In addition, the IRS learned that sometime in 1993, a certain advertisement was placed in the Wall Street Journal, entitled "Hot New Report Reveals A Unique Way to Legally Pay Zero Taxes and Totally Eliminate Lawsuits." Anyone interested in responding to this advertisement was directed to write to Center Company, Daniel Leveto VMD, GM, 316 Conneaut Lake Road , Meadville , Pennsylvania . This is the same address as Dr. Leveto's veterinarian business. The same advertisement was found in the November 20, 1995 issue of The Spotlight weekly newspaper, with interested parties instructed to write to the same address described supra.

According to the Lapina Affidavit, and consistent with Dr. Leveto's statements to the confidential informant, Leveto had sold the veterinarian business to an entity named Center Company on July 31, 1991 . Center Company filed nonresident alien income tax returns for the years 1991 and 1992, postmarked from the Turks and Caicos Islands, British West Indies . Both the 1991 and 1992 1040NRs reflect that all income was distributed to a beneficiary, resulting in Center Company having no total, adjusted, or taxable income. In 1992, 1993 and 1994 the Levetos reported zero taxable income. The Lapina Affidavit details various expenditures by the Levetos, including extravagant vacations and the purchases of airplanes and cars. Leveto made admissions to the confidential informant and to the undercover agent reflecting the fact that he was involved in nothing more than a "charade or sham." Special agent Lapina stated that Dr. Leveto was "well aware he can dictate whatever taxable income he desires and then disguise the balance of funds he receives as non-income sources utilizing 'debit cards' and a 'line of credit', which he termed as a 'paper tiger.' " Lapina Affidavit at p. 26.

Special agent Lapina explained in his affidavit that it has been his experience that in order to determine an individual's correct taxable income, indirect methods of proof must be utilized, including documentation of assets, liabilities and expenditures. Such financial records are typically kept at business locations and residences. Lapina Aff. ¶5. The confidential informants, one-time friends of the Levetos, were able to pinpoint the likely locations of such financial records. They described the Leveto residence as having a home office with a computer, file cabinet and safe. Mrs. Leveto had explained to one confidential informant that her husband used the home computer for buying and selling commodities. She also explained that Dr. Leveto had a computer at work as well, which he uses for this same activity. During the course of meetings with the undercover agent, Dr. Leveto admitted that he has evidence of assets placed in a nominee name as well as instructions on how "this whole process can be unwound", located in a safe.

As a result of the Lapina Affidavit, the magistrate found that probable cause existed to search plaintiff's home and business for evidence of tax law violations. The searches were authorized and took place the next day, May 2, 1996 . The warrants are attached as Exhibit A to the Second Amended Complaint. A descriptive list of items to be seized appears as Exhibit B to the search warrants, and are attached to the warrants and incorporated therein by reference. The Lapina Affidavit was placed under seal until recently.

2. Second Amended Complaint

The allegations in the complaint are as follows. When Dr. Leveto arrived at his place of business the morning of May 2, 1996 , he was "rushed by several armed people from cars that followed him into the parking lot." Second Amended Complaint at ¶20. Special agent Lapina was armed and wearing a bullet proof vest, and Leveto was patted down. Second Amended Complaint at ¶21. The agents shouted "where are the weapons?" Second Amended Complaint at ¶21. Leveto was escorted into a small room and ordered not to answer the phone or talk to anyone other than the agents. Second Amended Complain at ¶22. Dr. Leveto was held there for one hour. Second Amended Complaint at ¶22.

Dr. Leveto was then ordered to accompany special agents Lapina, Adams and two other unnamed agents to his home. Upon their arrival, Mrs. Leveto, wearing only her nightgown, was also patted down. Second Amended Complaint at ¶23. Under the supervision of special agent Hines, a second set of agents remained at the Leveto residence for six hours and seized thousands of documents, computer discs, personal mail, and other personal records. Second Amended Complaint at ¶24.

Dr. Leveto was ordered back to the veterinary hospital and held there for six hours in one room, with escorted visits to the restroom. Second Amended Complaint at ¶25. Dr. Leveto feared for his life and did not challenge the heavily armed agents. Second Amended Complaint at ¶26. During that time, Dr. Leveto was "interrogated" by special agents Lapina and Adams, without a Miranda warning, and felt obliged to cooperate because he feared for his life as a result of the fact that the agents were armed and were "ransacking" the business offices. Second Amended Complaint at ¶27. Dr. Leveto was not permitted to call an attorney. Second Amended Complaint at ¶28.

Dr. Leveto further alleges that his fellow employees were segregated, questioned, and sent home, and that armed agents turned away clients in the parking lot, claiming the facility was closed until further notice. Second Amended Complaint at ¶29, 30. The agents loaded trucks with the records of five companies, personal reading material, computer software, research related to commodity trading, and also computer files relating to the hospital, over 3,000 client medical and financial records. Second Amended Complaint at ¶33, 34. Special agent Judy Graham made an inventory of the items seized, which has been attached as Exhibit J to the Second Amended Complaint. No weapons were found on the premises. Second Amended Complaint at ¶36.

The application for the search warrant and the affidavit of probable cause were sealed by order of court. Until they were unsealed two years later, the Levetos allege, Dr. Leveto had no idea of the crime he was suspected of committing, other than a violation of 18 U.S.C. §371 (conspiracy to impair, impede or obstruct the functions of the IRS). This is the statutory violation cited on the search warrant. The Levetos admit that they were shown a copy of the warrants prior to the searches, and that they voluntarily consented to further searches of areas outside the scope of the search warrant. In light of the suddenness of the searches, however, they were confused by what was happening.

The Levetos filed a motion for return of the seized property pursuant to Fed.R.Crim.P. 41(e). After a hearing, at which the IRS refused to offer testimony or evidence because the investigation was--and for all we know, still is--ongoing, Magistrate Judge Baxter ordered that all items seized in the two searches be returned. This order was entered on August 4, 1998 .

B. The Parties and Proceedings

On April 29, 1998 , plaintiffs, Daniel L. Leveto and Margaret A. Leveto, filed a complaint claiming violations of their constitutional rights Which allegedly occurred during the procurement and execution of the search warrants. The defendants at that time included special agents from the Internal Revenue Service Robert A. Lapina, Richard W. Adams, Judy A. Graham, Suzi Hines, "Joe Rivera" and "10 Unknown IRS Agents." On May 14, 1998 , pursuant to court order, plaintiffs filed a twenty-nine count amended complaint against the same defendants, this time deleting the amount of unliquidated damages claimed, as is required by local rule.

Defendants Lapina, Adams, Graham and Hines waived service of a summons, and they subsequently filed a motion to dismiss plaintiffs' amended complaint. According to counsel for defendants, plaintiffs failed to effectuate service of process on any of the other defendants. Neither "Joe Rivera" nor the ten unnamed defendants responded to plaintiffs' amended complaint.

On October 8, 1998 , Judge McLaughlin of this court heard oral argument concerning the various motions then pending. The transcript of that argument ("Oral Arg. Tr.") (Doc. 43) is part of the record and has been reviewed by this member of the court. Because the affidavit in support of probable cause had only been recently unsealed, Judge McLaughlin granted leave to allow plaintiffs to file a Second Amended Complaint, which they did on October 26, 1998 . The Second Amended Complaint has forty-nine counts and was drafted with the benefit of legal counsel.

In addition, to help clarify the names of the individuals who fit within the category of "10 Unknown IRS Agents," Judge McLaughlin ordered defendants' counsel to provide plaintiffs' counsel with the names of all of the IRS special agents who participated in the search of plaintiffs' home and business. At oral argument, defendants' counsel represented to the court that the unnamed defendants would not attempt to "duck service," and, as agreed, defense counsel later provided the names. Plaintiffs moved to amend the Second Amended Complaint's caption and allegations pertaining to the unnamed defendants to include said individuals. We granted that motion on November 5, 1998 (Doc. 48). However, plaintiffs have not yet served summons or complaint on any of these individuals.

The counts of the Second Amended Complaint will be discussed in more detail infra, but generally can be grouped as follows. Counts 1 through 8, 48 and 49 allege violations of the First Amendment. Counts 9 through 28, 45 and 49 allege violations of the Fourth Amendment. Counts 29 through 35, 43, 44, 48 and 49 allege denial of due process in violation of the Fifth Amendment. Counts 36 through 39 allege violations of the Sixth Amendment's guarantee of right to counsel. Counts 40 through 42 allege violations of the Thirteenth Amendment. There are also various statutory claims sprinkled throughout the Second Amended Complaint.

Defendants then filed the now-pending motion to dismiss the Second Amended Complaint on November 12, 1998 . It is their position that the legal arguments contained therein apply equally to all named and unnamed defendants, whether they have been served or not. On November 13, 1998 , attorney Neil Price withdrew as counsel to plaintiffs. On November 18, 1998 , Judge McLaughlin entered an order of recusal and the case was transferred to the undersigned member of this court.

Plaintiffs, appearing pro se, subsequently filed a brief in opposition to the motion to dismiss the Second Amended Complaint, as well as a brief in support of their "motion for in camera review."

On March 22, 1999 , this member of the court held a status conference on this and other consolidated cases, ³ at which time we took under advisement all pending motions. We ordered the government to turn over certain documents responsive to certain pending FOIA requests. However, we heard no substantive argument at that time, although the transcript of that conference is now part of the record.

On July 12, 1999 , attorney William G. McConnell entered his appearance on behalf of the plaintiffs. In that capacity he filed the "Motion for Contempt and to Seek Enforcement of Court Order" with respect to one FOIA request.

II. DISCUSSION

A. Standard for Motions to Dismiss

On a Rule 12(b)(6) motion, the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the nonmoving party. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). The question is whether the plaintiff can prove any set of facts consistent with his allegations that will entitle him to relief, not whether he will ultimately prevail. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept legal or unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegation. See Miree v. DeKalb County , Ga. , 433 U.S. 25, 27 n. 2 (1977). Moreover, the claimant must set forth sufficient information to outline the elements of his claims or to permit inferences to be drawn that these elements exist. See Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Matters outside the pleadings should not be considered. This includes "any written or oral evidence in support of or in opposition to the pleading that provides some substantiation for and does not merely reiterate what is said in the pleadings." Charles A. Wright, Arthur R. Miller, Federal Practice and Procedure §1366 (West 1990).

"It is well established that, even if a party does not make a formal motion to dismiss, the court may, sua sponte, dismiss the complaint where the inadequacy of the complaint is clear." Slater v. Skyhawk Transp., Inc., 187 F.R.D. 185, 202 (D.N.J. 1999), quoting Michaels v. New Jersey , 955 F.Supp. 315, 331 (D.N.J. 1996). A court may on its own initiative enter an order dismissing the action provided that the complaint affords a sufficient basis for the court's action. Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980).

The United States Court of Appeals for the Third Circuit has imposed a heightened pleading standard in civil rights actions; complaints against government officials in their personal capacity must "contain a modicum of factual specificity, identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs." Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir. 1988), cert. denied, 489 U.S. 1065 (1989). To satisfy this standard, a plaintiff must "allege the specific conduct violating the plaintiff's rights, the time and place of that conduct, and the identity of the responsible officials." Id. In a Bivens action against multiple federal defendants, "the plaintiff must plead the personal involvement of each defendant with specificity and with sufficient facts to overcome a likely defense of immunity." See Baise v. Kaplin, 852 F.Supp. 268, 287 (D.N.J. 1994).

B. Authority of Agent Lapina

At the outset, plaintiffs argue that special agent Lapina lacked authority to present the application and affidavit of probable cause, and thus, the searches and seizures were void ab initio. See Counts 7, 8, 23, 24, 34, 35, 38, 39, 41, and 42. These allegations border on the frivolous. Federal Rule of Criminal Procedure 41(a) states that a federal magistrate may issue a search warrant "[u]pon the request of a federal law enforcement officer or an attorney for the government." A "federal law enforcement officer" is any government agent who is engaged in the enforcement of the criminal laws and is within the category of officers authorized by the Attorney General to request the issuance of a search warrant. Fed.R.Crim.P. 41(h); 28 C.F.R. §60.2. There is no doubt that special agent Lapina's primary responsibilities include the investigation of alleged criminal violations under federal tax law, and that the Internal Revenue Code grants him the authority to execute search warrants and to seize property. 26 U.S.C. §7608(b)(2)(A).

Plaintiffs are under the mistaken impression that because §7608 of the Internal Revenue Code uses the term "Intelligence Division," rather than Criminal Investigation Division, special agent Lapina lacked authority to execute the search warrants. "Intelligence Division" is the former name of the Criminal Investigation Division. See U.S. v. Amerada Hess Corp. [80-1 USTC ¶9160], 619 F.2d 980, 982 (3d Cir. 1980); U.S. v. Garden State Nat'l Bank [79-2 USTC ¶9632], 607 F.2d 61, 65 n. 3 (3d Cir. 1979); U.S. v. Morgan [85-1 USTC ¶9397], 761 F.2d 1009, 1011 (4th Cir. 1985); U.S. v. Silvestain [82-1 USTC ¶9159], 668 F.2d 1161, 1163 (10th Cir. 1982); U.S. v. Miller [81-2 USTC ¶9749], 660 F.2d 563, 565 n. 2 (5th Cir. 1981); U.S. v. Jones [80-2 USTC ¶9804], 630 F.2d 1073, 1081 n. 12 (5th Cir. 1980); U.S. v. Equitable Trust Co. [79-2 USTC ¶9653], 611 F.2d 492, 495 n. 1 (4th Cir. 1979).

Therefore, Counts 7, 8, 23, 24, 34, 35, 38, 39, 41 and 42 are wrongly premised on the notion that special agent Lapina knew or should have known that he lacked authority to present an application and affidavit of probable cause, and those portions of those counts will be stricken on the grounds that they fail to state a claim upon which relief can be granted.

C. Bivens and Qualified Immunity

Under limited circumstances, a federal official may be held liable for the violation of a person's constitutional rights while acting in an official capacity. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), the Supreme Court held that a plaintiff could recover money damages for Fourth Amendment violations committed by federal agents. In order to state a Bivens claim, the plaintiff must allege a specific deprivation of constitutionally protected rights through specific allegations of fact regarding defendants' conduct. Baker v. McCollan, 443 U.S. 137, 140 (1979). Subsequently, courts have expanded the Bivens remedy to encompass violations of other constitutional provisions. The Supreme Court, however, repeatedly has warned that federal courts should exhibit caution in "extending Bivens remedies into new contexts." F.D.I.C. v. Meyer, 510 U.S. 471, 484 (1994); Schweiker v. Chilicky, 487 U.S. 412, 421 (1988). The Supreme Court has held that plaintiffs must do much more than simply allege that a provision of the Bill of Rights has been violated. For instance, simply alleging a violation of the Due Process Clause is not enough.

[O]ur cases establish that the right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . [I]n the light of preexisting law the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635 (1987), citing Mitchell v. Forsyth, 472 U.S. 511, 535 n. 12 (1985) and Malley v. Briggs, 475 U.S. 335, 344-45 (1986).

Defendants argue that they are protected from liability under the doctrine of qualified immunity. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Anderson, 483 U.S. at 638. Under Harlow , this determination requires an objective analysis. Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989). Plaintiffs have the burden of showing a prima facie case of defendants' knowledge of impropriety, actual or constructive. Davis v. Scherer, 468 U.S. 183, 191 (1984). The defense of qualified immunity is a recognition of the fact that subjecting public officials to personal liability for their discretionary actions results in the distraction of those officials from their public duties, inhibits their discretionary actions, and, quite possibly, deters qualified people from accepting public service. Harlow, 457 U.S. at 815.

The case law instructs that, in analyzing the defendants' claim of qualified immunity, we must first make a threshold determination of whether the constitutional rights asserted by the plaintiff were "clearly established" at the time the defendant officials acted, and whether the plaintiffs have asserted a violation of a constitutional right at all. Giuffre v. Bissell, 31 F.3d 1241, 1255 (3d Cir. 1994). We must then further inquire whether a reasonable person in the official's position at the relevant time could have believed, in light of what was in the decided case law, that his conduct would be unlawful. Good v. Dauphin County Social Servs. for Children and Youth, 891 F.2d 1087, 1092 (3d Cir. 1989). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley, 475 U.S. at 341.

One of the purposes of the qualified immunity standard is to protect public officials from the "broad-ranging discovery that can be peculiarly disruptive of effective government." Anderson, 483 U.S. at 646 n. 6. For this reason, "qualified immunity should be resolved at the earliest possible stage of the litigation." Id. "Unless the plaintiff's allegations state a claim for violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before commencement of discovery." Mitchell, 472 U.S. at 526.

1. The Fourth Amendment

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.

U.S. Const. Amend. IV.

The plaintiffs allege that their Fourth Amendment rights were violated for numerous reasons, including perceived defects in the warrants, the nature and reliability of the information contained in the Lapina Affidavit, the lack of probable cause for their issuance, the breadth of the warrants, the scope of the search, and the fact that they were patted down.

At the outset, we note that we are in an unusual posture: this case challenges the constitutionality of a search and seizure, yet the Levetos have not been indicted. Should criminal charges be brought, they will be entitled to a suppression hearing on many of the issues infra. We do not intend this decision to have any preclusive effect on any subsequent criminal matters involving the same facts and parties.

a. Probable Cause

A valid search warrant may issue only upon the showing to the issuing authority that there is probable cause for the search. To determine whether probable cause exists, the magistrate is required to make a "practical, common sense decision" whether, given the circumstances, there is "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). The decision is based upon the totality of the circumstances, and doubtful cases are to be resolved in favor of upholding the warrant. Id. at 237; see United States v. Sleet, 54 F.3d 303 (7th Cir. 1995). "[P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232. A deciding judge deals with probabilities, not technicalities, when deciding whether to issue a warrant. Id. A sufficient nexus between the items to be seized and the place to be searched may be established by direct evidence or by inferences. United States v. McKinney , 758 F.2d 1036, 1043 (5th Cir. 1985); United States v. Malin, 908 F.2d 163, 165 (7th Cir. 1990). Even if a reviewing court would not have found probable cause for issuance of a search warrant, it must nevertheless uphold the warrant so long as the issuing magistrate's determination was made consistent with the minimal substantial basis standard. United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993), cert. denied, 510 U.S. 1177 (1994).

The case of United States v. Williams, 124 F.3d 411, 420 (3d Cir. 1997), cert. denied, 522 U.S. 1051 (1998), instructs that the supporting affidavit to a search warrant application must be read in its entirety and in a common sense and nontechnical manner. See Conley, 4 F.3d at 1206. The affidavit need not contain direct evidence that proof of wrongdoing would be present at the premises. Id. at 1207. "Instead, probable cause can be, and often is, inferred by 'considering the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide [the] property.' " Id., quoting United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993). The focus should be on what the affidavit includes, rather than on what it does not include. Id. at 1208. Even where a misrepresentation or an omission is included in an affidavit, the affidavit may nevertheless support the valid warrant if information contained in the affidavit, independent of the defective portion, supports a probable cause finding. United States v. Frost, 999 F.2d 737, 742-43 (3d Cir. 1993), cert. denied, 510 U.S. 1001 (1993). This is true even where the misrepresentation or omission is made intentionally or knowingly, or made with reckless disregard for the truth. Id.

We find that, as a matter of law, the Lapina Affidavit, when read in its entirety, provides ample probable cause to support the issuance of the search warrants. It painstakingly details the IRS-CID investigation of the Levetos, including corroborated information given to the IRS-CID by two confidential informants, outside sources, and through the use of an undercover agent. The totality of the circumstances indicate probable cause to believe both that crimes had been committed, and that evidence of the crimes would be found at the places searched in this case.

The plaintiffs also allege that special agent Lapina misrepresented facts in his affidavit and intentionally misled the magistrate judge with respect to the application for the warrant, and thus, the warrant was void ab initio. First, plaintiffs allege that the statements of the confidential informants were hearsay (and that the affidavit contained hearsay on hearsay) and that these statements were inappropriately included in the affidavit. Second Amended Complaint ¶¶25, 26. To the contrary, the rule is clear: hearsay is permitted. Fed.R.Crim.P. 41(c)(1); Brinegar v. United States, 338 U.S. 160, 173 n.12 (1949). Even double hearsay may be used to establish probable cause, as long as there is a substantial basis for crediting the hearsay. U.S. v. Spach, 518 F.2d 866, 869 (7th Cir. 1975); Jones v. U.S. , 362 U.S. 257, 269 (1960). We have carefully reviewed the Lapina Affidavit and find that special agent Lapina made concerted efforts to corroborate the hearsay and that the magistrate had a substantial basis for crediting the hearsay statements.

As to plaintiffs allegations that special agent Lapina fraudulently misrepresented himself as a federal law enforcement officer, this claim is completely without merit, as discussed supra at II.B. Plaintiffs also allege that the criminal history and motivations of one of the confidential informants should void the warrant. Yet the magistrate was informed that the confidential informant was attempting to provide substantial assistance to the government in order to reduce his own sentence for mail fraud and income tax evasion. There was no "misrepresentation" of facts by special agent Lapina.

Finally, plaintiffs allege that special agent Lapina misled the magistrate judge by failing to disclose the fact that there were audiotapes recorded by a confidential informant who wore a hidden recording device. As noted supra, we must focus on what the affidavit includes, rather than on what it does not include. Conley, 4 F.3d at 1208. Regardless, even if misrepresentations or omissions are included in an affidavit, the affidavit may nevertheless support a valid search warrant if information contained in the affidavit, independent of the defective portion, supports a probable cause finding; this is true even when misrepresentation or omisssion is made intentionally or knowingly, or made with reckless disregard for the truth. Id. at n. 7.

Plaintiffs also allege that the special agent Lapina failed to corroborate statements made by the confidential informant. Viewing the affidavit as a whole, there is sufficient corroboration of the confidential informants' statements for the purpose of determining probable cause. For example, many of the incriminating statements were made by Dr. Leveto himself to the undercover agent, in addition to the confidential informant. The Lapina Affidavit also details public records and background checks such as title searches which corroborate the confidential informants' description of the Leveto's somewhat lavish lifestyle and the existence of the offshore "Center Company."

The case law was well established at the time special agent Lapina filed the application and affidavit with the magistrate judge. We hold that special agent Lapina is entitled to qualified immunity in regard to his application and receipt of the warrants. A reasonable person in his position would have believed that this conduct was lawful. Accordingly, there is no basis for overturning the magistrate judge's determination, or for finding that special agent Lapina acted in violation of the Fourth Amendment when applying for the warrants. Therefore, those portions of counts 9, 23, 24, 25, 26, 27, 28, 34, 35, 38, 39 and 42 will be dismissed.

b. Particularity

Plaintiffs also contend that the warrants were overbroad. Second Amended Complaint Counts 10, 12, 14, 19 and 20. In order to prevent the law enforcement officers from conducting a general, exploratory rummaging, a warrant must give a particular description of the things to be seized. Andresen v. Maryland , 427 U.S. 463, 480 (1976). Plaintiffs allege that the warrants failed to adequately specify their names, the names of any alleged conspirators or co-conspirators, the names of the companies that were subject to the search, the specific crimes being investigated, and the timeframe of the documents sought.

We find that for the purpose of determining qualified immunity, the warrants had adequate constitutional particularity, and were sufficiently specific to enable the executing officer to ascertain the identity of the items to be seized with reasonable certainty. The phrases in a search warrant must be read in context and not in isolation. Conley, 4 F.3d 1200 at 1208. "[N]o tenet of the Fourth Amendment prohibits a search merely because it cannot be performed with surgical precision." Id. We may consider the nature of the crime(s) charged and whether the conduct alleged would make greater particularity impossible. Id.

We hold that there is sufficient specificity, satisfying the particularity requirement of the Fourth Amendment, Andresen, 427 U.S. at 480, 482, because the warrants limit the search to items related to violations of the federal criminal statutes concerning conspiracy to avoid the tax laws. The search warrants requested documentary evidence that was related to the investigation at hand, which included allegations of violations of the tax code, specifically 26 U.S.C. §7201 (income tax evasion), §7206(1) (filing false tax returns), and 18 U.S.C. §371, ("Klein conspiracy" ⁴ alleging that there was an agreement between two or more people to impair, impede and obstruct the functions of the IRS). Keeping in mind the applicable standard, and the complexity of the alleged scheme involved, the affidavit in support of the warrants is sufficiently detailed, thus limiting the discretion of the officers executing the search warrant. Exhibit B, attached to the search warrant, included specific items to be seized. These items appear reasonably to related to the allegations in the Lapina Affidavit. Here, given the range of information required to unravel the scheme, and all other factors, the warrant was as specific as circumstances would allow. U.S. v. American Investors of Pittsburgh, Inc., 879 F.2d 1087, 1106 (3d Cir.), cert. denied, 493 U.S. 955 (1989); see also People v. Roccaforte, 919 P.2d 799, 804 ( Colo. 1996) (more particular statement of documents needed regarding tax fraud not necessary, as "government could not have been more particular"). Warrants may include phrases that call for the seizure of entire classes of items, such as the records of a business, because the business may be "permeated with fraud" and also may overlap into the personal lives of the subjects of the investigation. United States v. Humphrey, 104 F.3d 65, 68-69 (5th Cir.), cert. denied, 520 U.S. 1235 (1997); United States v. Oloyede, 982 F.2d 133, 140-41 (4th Cir. 1992); United States v. Bentley, 825 F.2d 1104, 1110 (7th Cir.), cert. denied, 484 U.S. 901 (1987). When investigating fraud, the precise manner in which documents may be kept, the form that records may take, indeed the contours of the fraud itself, cannot usually be anticipated when the warrant is being framed. The warrant succeeds where it contains a reasonably particular description of the documents to be seized, in the context of the criminality under investigation. U.S. v. Gawrysiak, 972 F.Supp. 853, 861 (D. N.J. 1997), aff'd, 178 F.3d 1281 (3d Cir. 1999). "The Fourth Amendment has never demanded that all details of the crime be known, and the crime solved, before the search warrant's probable cause requirement is met. It follows that the particularity requirement likewise cannot mean that all the documents likely to be evidence of that crime be specified beforehand." Id.

As to the allegations that the warrant is deficient because it fails to name either Dr. or Mrs. Leveto, "[t]here is no constitutional requirement that [a search] warrant name the person who owns or occupies the described premises. . . . The specificity required by the Fourth Amendment is not as to the person against whom the evidence is to be used, but rather as to the placed to be searched and the thing to be seized." United States v. Besase [75-2 USTC ¶16,199], 521 F.2d 1306, 1308 (6th Cir. 1975).

Plaintiffs also allege that the warrant is not sufficiently particular in that it fails to specify the timeframe of the documents to be seized. We reiterate that even if we, as the reviewing court, would not have found probable cause for issuance of the search warrant, it must nevertheless be upheld so long as the issuing magistrate's determination was made consistent with the minimal substantial basis standard. Conley, 4 F.3d at 1205. However, we note that by plaintiffs' own admission, Second Amended Complaint Count 25, special agent Lapina was heading the seizure process, and was on hand to answer questions from the other agents at the scene. It is clear from the affidavit that the pertinent years were 1991 through 1994. On the whole, the warrants and their supporting documentation were sufficiently definite so that the officers executing them could identify the property sought with reasonable certainty. Certainly, the defendants are entitled to qualified immunity; they were not "plainly incompetent." Malley, 475 U.S. at 341.

Finally, plaintiffs allege at ¶¶52-54 and count 21 of the Second Amended Complaint that the various administrative summonses were issued as a result of documents seized under color of unconstitutional general warrants. Said allegation is now moot. See also Section E, infra.

Therefore, we will order that these portions of counts 10, 12, 14, 19, 20 and 21 be dismissed.

c. Execution of the Search Warrants

The Levetos also claim that the officers conducting the search went beyond the scope of the warrant, thus creating an illegal general search in violation of the fourth amendment. Second Amended Complaint Count 12, 14. Law enforcement officers conducting a search must adhere strictly to the limitations set by the search warrant. Marron v. United States, 275 U.S. 192, 196 (1927), reh'g denied, 277 U.S. 613 (1928). A search must be confined to the items named in the warrant, instrumentalities of a crime discovered during the search, and property to which a special reason for seizure attaches, such as officers' safety. Dale v. Bartels, 732 F.2d 278, 284 (2d Cir. 1984).

To some extent these allegations overlap with the allegations as to lack of particularity, and, in addition to reasons stated previously, the defendants are entitled to qualified immunity. In U.S. v. American Investors of Pittsburgh, Inc., supra, the defendants argued that the district court erred by not suppressing certain seized records, alleging in particular that the search warrant was overbroad and lacked particularity. The district court did not exclude the records, finding that the agents acted in good faith in executing the warrant issued by a neutral magistrate. The court relied on United States v. Leon, 468 U.S. 897 (1984), "which carves out a good faith exception to the fourth amendment exclusionary rule." In Leon , the court noted that "[i]n the ordinary case, an officer cannot be expected to question the magistrate's probable cause determination or his judgment that the form of the warrant is technically sufficient." Id. at 919. Once a warrant issues, "there is literally nothing more the policeman can do in seeking to comply with the law." Id. The Supreme Court has applied the reasoning of Leon to shield law enforcement officers who executed an arrest warrant from personal liability in a suit for damages allegedly resulting from the warrant's execution. Malley, 475 U.S. at 344-45.

We will apply the same reasoning here, to insulate the defendants, who acted only after Magistrate Judge Baxter determined that probable cause existed to conduct the searches which form the basis for plaintiffs' claims from liability. Given the necessarily broad scope of the search involved here, we find that the agents reasonably relied on the magistrate's findings that the Lapina affidavit justified the seizure of the wide range of documents. As noted supra, it must be shown that in light of the preexisting law, the unlawfulness must be apparent. Such is not the case here.

The Levetos argue that the executing officers went beyond the scope of the warrant because they "ransacked" the office, rummaging at will through papers. Second Amended Complaint ¶27. This is unpersuasive, since, in any search for documents, innocuous records must be examined to determine whether they fall into the category of those papers covered by the search warrant. Andresen, 427 U.S. at 482 n. 11. Moreover, the fact that the agents retrieved a large amount of documentation is not at all surprising in an investigation such as this and it certainly does not rise to the level of a constitutional deprivation, and no reasonable officer would have had reason to believe otherwise. United States v. Regan, 706 F.Supp. 1102, 1113-1114 (S.D.N.Y. 1989), citing United States v. Christine, 687 F.2d 749 (3d Cir. 1982). Finally, as for the computer files, Second Amended Complaint Count 14, the government was not obligated to sift at the search site through a large mass of computer files in an effort to segregate those files that fell outside the scope of the warrant. Guwrysiak, 972 F.Supp. at 866, citing United States v. Henson, 848 F.2d 1374 (6th Cir. 1988).

Therefore, the defendants are entitled to qualified immunity with respect to these portions of Counts 12 and 14. No reasonable officer in their position would have believed that their conduct violated a clearly established constitutional right. There is no such right under these circumstances.

d. Pat down and detention

Plaintiffs allege that their Fourth Amendment rights were violated as a result of being patted down when the special agents first arrived and presented the search warrants. Second Amended Complaint Counts 11 and 13. These counts will be dismissed on the grounds of qualified immunity. The "scheme of the Fourth Amendment" is bottomed on the "reasonableness of a particular search or seizure in light of the particular circumstances." Terry v. Ohio , 392 U.S. 1, 21 (1968). Under the particular circumstances of this case, no reasonable person in the defendants' position would have believed that a brief pat down of the owners and occupants of a premises subject to a search would violate the constitutional rights of those individuals.

The case law supports the constitutionality of these actions. In Rivera v. United States, 928 F.2d 592, 606 (2d Cir. 1991), the court held that police may make limited security searches of people present at an apartment being searched pursuant to a warrant.

[I]n weighing the value of the frisk to the officers, the court notes that the failure to conduct brief frisks during the execution of search warrants would seriously jeopardize the lives and safety of police officers. It is clear that police officers who enter a building to execute a search warrant expose themselves to the risk of assault by persons whom they encounter during the search. To permit police officers to reduce this risk, courts have recognized the officers' right to conduct brief frisks of all persons on the premises being searched. These frisks, though limited, serve the essential function of ensuring that police officers have an opportunity to discover concealed weapons. Given the obvious importance of uncovering such weapons, the courts have permitted police officers to frisk all occupants of premises being searched without regard to any particularized suspicion that the officer may have. By the same token, the officers' strong interest in protecting their own safety requires that they be permitted to frisk even those persons who happen to be scantily clad at the time of the search.

Collier v. Locicero, 820 F.Supp. 673, 681 (D. Conn. 1993) (emphasis added) (citations omitted); see also United States v. Barlin, 686 F.2d 81, 87 (2d Cir. 1982)

Plaintiffs also allege that they were unlawfully detained in violation of the Fourth Amendment. Second Amended Complaint Counts 15, 16, 17, and 18. Under Michigan v. Summers, 452 U.S. 692 (1981), during execution of a search warrant, police can detain the occupant of the premises they have a warrant to search. Like a limited frisk, such detention is reasonable to protect the officers and the occupants of the premises, to prevent flight, and generally to avoid dangerous confusion. "The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Id. at 702-03. Moreover,

the orderly completion of the search may be facilitated if the occupants of the premises are present. Their self-interest may induce them to open locked doors or locked containers to avoid the use of force that is not only damaging to property but may also delay the completion of the task at hand. It is also appropriate to consider the nature of the articulable and individualized suspicion on which the police base the detention of the occupant of a home subject to a search warrant. We have already noted that the detention represents only an incremental intrusion on person liberty when the search of a home has been authorized by a valid warrant. The existence of a search warrant, however, also provides an objective justification for the detention. A judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime. Thus a neutral magistrate rather than an officer in the field has made the critical determination that the police should be given a special authorization to thrust themselves into the privacy of a home. The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.

Michigan v. Summers, 452 U.S. 703-04. We hold that under the relevant case law, no reasonable officer in the defendants' position would have believed that their conduct violated clearly established constitutional rights. That the Levetos' detentions took up to 6 hours is not at all surprising. As plaintiffs admit, at the veterinarian office, thousands of documents were seized, a consent search of an additional storage area was conducted, many computer files were downloaded, an inventory was made of all seized documents, and the everyday routine of the veterinarian office was upset, with agents having to address concerns of fellow employees and patrons, escort employees to the kennel to feed and care for the animals, as well as question the employees who reported to work that day. The search of the home included a videotaping of the residence, downloading of numerous computer files, and a consent search of an outside building was conducted.

Therefore, we will dismiss Counts 15, 16, 17 and 18 of the Second Amended Complaint.

e. Alleged conspiracy

Plaintiffs allege throughout the Second Amended Complaint that the defendants conspired against them to violate plaintiffs' constitutional rights. "[B]are conclusory allegations of 'conspiracy' or 'concerted action' will not suffice. The plaintiffs must expressly allege an agreement or make averments of 'communication, consultation, cooperation or command' from which such an agreement can be inferred. . . ." Flanagan v. Shively , 783 F.Supp. 922, 928-29 (M.D. Pa.), aff'd, 980 F.2d 722 (3d Cir. 1992), cert. denied, 510 U.S. 829 (1993). We hold that plaintiffs' Second Amended Complaint does not adequately support the allegation with averments of the underlying material facts. Nowhere in the Second Amended Complaint do plaintiffs allege the acts each of the individual defendants allegedly performed in carrying out the alleged conspiracy or the basis for plaintiffs' assertions of unconstitutional motive. Accordingly, those portions of Counts 1, 2, 3, 4, 9, 10 and 36 which allege conspiracy will be dismissed sua sponte on the grounds that they fail to state a claim upon which relief can be granted.

f. Other miscellaneous allegations

To the extent that the Levetos claim some sort of damage to reputation as a result of the search, this fails to state a claim under Bivens. Paul v. Davis , 424 U.S. 693, 711-12 (1976). Therefore, this portion of count 47, as well as ¶¶156, 158, 160, 161, 171, and 180 should be stricken.

As to the agents' yelling "where are the weapons?", even the most abusive verbal attacks do not violate the constitution. See Bernstein v. U.S. [97-2 USTC ¶50,980], 990 F.Supp. 428, 441 n. 6 (D.S.C. 1997), and cases cited therein. Thus, the defendants are entitled to qualified immunity with respect to this allegation, in paragraph 21 of the Second Amended Complaint.

Plaintiffs also allege that the IRS-CID agents are prohibited from carrying firearms, and that certain of the agents' actions were against IRS policy. No Bivens action automatically arises from failure of an agent to follow Internal Revenue Service procedures. Groom v. Fickes, 966 F.Supp. 1466, 1477, (S.D. Tex.), aff'd, 129 F.3d 606 (5th Cir. 1997). Therefore, we will dismiss this portion of the Second Amended Complaint at ¶58, on the grounds of qualified immunity and failure to state a claim.

As for the Levetos' contention that the inventory of items seized was insufficiently detailed, we find qualified immunity applies here as well. There is no case law cited by the plaintiffs to support the proposition that this would violate a clearly established constitutional or statutory right. Therefore, the defendants are entitled to qualified immunity with respect to 35. Moreover, Federal Rule of Criminal Procedure 41(d) provides that the officer taking property under a warrant shall provide the person from whom or from whose premises the property was taken: 1) a copy of the warrant, 2) a receipt for the property taken; and 3) an inventory. Although the procedural steps enumerated in Rule 41(d) are important and should not be disregarded, they are ministerial and absent a showing of prejudice, irregularities in these procedures do not void an otherwise valid search. Frisby v. U.S. , 79 F.3d 29, 32 (6th Cir. 1996).

2. Fifth Amendment Claim

The Levetos assert that their Fifth Amendment due process rights were violated when they cooperated in the custodial interrogations, unwittingly became witnesses against themselves, and were not given Miranda rights. This is not an instance where a party seeks to suppress from evidence statements made after an alleged custodial interrogation; these plaintiffs seek money damages. The "right protected under the Fifth Amendment is the right not to be compelled to be a witness against oneself in a criminal prosecution, whereas the 'right to counsel' during custodial interrogation recognized in Miranda v. Arizona is merely a procedural safeguard, and not a substantive right." Guiffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994) (emphasis added) (citations omitted); see also Warren v. City of Lincoln , Neb. , 864 F.2d 1436, 1442 (8th Cir.) (remedy for a Miranda violation is the exclusion from evidence of any compelled self-incrimination, not a §1983 action) (emphasis added), cert. denied, 490 U.S. 1091 (1989).

That being so, reasonable officials in the situation alleged here could not have known that their actions violated the Levetos "clearly established" Fifth Amendment right to due process and protection against self incrimination. Accordingly, the IRS special agents are entitled to qualified immunity with respect to these claims at Counts 32, 33, 34, 35, 48 and 49.

Even though they admit that all of the seized documents have been returned to them, plaintiffs also allege that they were deprived of property without just compensation in violation of the takings clause of the Fifth Amendment, in that Dr. Leveto was harmed because his voluminous work product was rendered useless by the seizure. Second Amended Complaint at Counts 29, 30 and 31. These allegations fail to state a claim upon which relief can be granted, and since no reasonable officer in the defendants' positions would have believed that their conduct was unlawful, the defendants are entitled to qualified immunity.

The Fifth Amendment provides that "nor shall private property be taken for public use, without just compensation." One of the principal purposes of the takings clause is to bar the government from forcing some people alone to bear public burdens, which, in all fairness and justice, should be borne by the public as a whole. Dolan v. City of Tigard , 512 U.S. 374, 384 (1994). We have already held that the seizure of the documents in this case was lawful, pursuant to a constitutional search warrant. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority, other than the power of eminent domain. Bennis v. Michigan , 516 U.S. 442 (1996); United States v. Fuller, 409 U.S. 488, 492 (1973). The actions of an officer of the United States, whether holding, taking or otherwise legally affecting plaintiff's property, is so illegal as to permit a suit for specific relief against the officer as an individual only if it is not within the officer's statutory powers, or if within these powers, only if the powers or their exercise in a particular case are constitutionally void. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 695 (1949). To the contrary, these defendants acted pursuant to a constitutionally valid search warrant. They are entitled to qualified immunity with respect to Counts 29, 30 and 31.

3. Sixth Amendment Claim

We will dismiss the Leveto's claim that their Sixth Amendment right to counsel was violated when they were forbidden to have any contact with an attorney. An individual's Sixth Amendment right to counsel attaches "at or after the initiation of adversary judicial proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." United States v. Muzychka, 725 F.2d 1061, 1068 (3d Cir.), cert. denied, 467 U.S. 1206 (1984); Michigan v. Jackson, 475 U.S. 625, 629 (1986); Brewer v. Williams, 430 U.S. 387, 398 (1977). The Levetos were never formally charged with the tax offenses, and have not had to make any court appearances in relation to defending alleged criminal activity. The Levetos therefore had no "clearly established" right that could have been violated by the actions of the individual officials under the Sixth Amendment. That being so, reasonable officials in the situation alleged here could not have known that their actions "violated" the Levetos "clearly established" Sixth Amendment right to counsel, and we hold that such right did not exist and there was no such violation. Accordingly, the IRS special agents are entitled to qualified immunity with respect to these claims at Counts 36, 37, 38 and 39.

4. Thirteenth Amendment Claim

Counts 40, 41, and 42 allege violations of the Thirteenth Amendment's prohibition of involuntary servitude, claiming that the Levetos were subject to involuntary servitude by intimidation under armed threat of physical harm, when they were detained in their home, car and/or office. Dr. Leveto claims that special agents Lapina and Adams violated his rights under the Thirteenth Amendment by preventing him from carrying on his normal duties while they searched his business premises. "Involuntary servitude" has been defined as an action by a wrongdoer causing the victim to have, or to believe he has, no way to avoid continued service or confinement. Brooks v. George County, Miss., 84 F.3d 157 (5th Cir. 1996), cert. denied, 519 U.S. 948 (1996). Dr. Leveto must establish that he was forced to choose between "performing the labor on one hand and physical and/or legal sanctions on the other"; courts interpret the definition of "involuntary servitude" narrowly. Steirer v. Bethlehem Area School District, 987 F.2d 989, 999 (3d Cir.), cert. denied, 510 U.S. 824 (1993). In Amnesty America v. County of Allegheny , 822 F.Supp. 297, 300 (W.D. Pa. 1993), this court held that the Thirteenth Amendment prohibition of involuntary servitude was not implicated by allegations that plaintiff protestors were forced to stand or walk when arrested or detained following antiabortion protest.

The prohibitions set forth in the Thirteenth Amendment are simply not implicated by such allegations, and no reasonable actor in the defendants' position at that time could have known that their actions "violated" the "clearly established" law under the Thirteenth Amendment. Defendants' motions will be granted with respect to plaintiffs' claims for violations of this amendment, alleged in Counts 40, 41 and 42.

5. First Amendment Claims

Counts 1 through 8 are alleged under the subheading "Violation of Rights Guaranteed by the First Amendment." The Levetos allege that when their various books and publications were seized "under color of unconstitutional warrants," the agents unlawfully retaliated against them and deprived them of the "use and benefits of their written property, work product and customer lists with specific intent to chill legitimate activities of free press, free expression, association and speech "as guaranteed by the First Amendment. Second Amended Complaint Counts 3, 4. Plaintiffs further allege that "the investigation into Daniel Leveto's affairs were [sic] instigated by his sale of the book "Tax Free . . . How the Super Rich Do It." Second Amended Complaint ¶86; see also Counts 48 and 49.

As we noted earlier, these allegations are subject to a heightened pleading standard.

[B]ecause conclusory allegations of unconstitutional or otherwise illegal conduct will not withstand a public official's dispositive pretrial motion [based on qualified immunity], and because plaintiffs cannot expect the court's assistance in obtaining the necessary factual support, plaintiffs bringing suit against public officials generally must put forward, in their complaints or other supporting materials, greater factual specificity and 'particularity' than is usually required.

Martin v. Malhoyt, 830 F.2d 237, 257 (D.C. Cir. 1987); see also Colburn v. Upper Darby Township , 838 F.2d 663, 666 (3d Cir.), cert. denied, 489 U.S. 1065 (1989). Moreover, in a Bivens action against multiple federal defendants, the plaintiff must plead the personal involvement of each defendant with specificity and with sufficient facts to overcome a likely defense of immunity. Ramirez v. United States , 998 F.Supp. 425, 432 (D.N.J. 1998); Biase, 852 F.Supp. at 287.

In addition, the First Amendment does not invalidate very incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Branzburg v. Hayes , Ky. , 408 U.S. 665 (1972). As to the alleged violation of a "chilling effect" on freedom of association, this case does not rise to the level of the government targeting an established tax protestor organization. Compare National Commodity and Barter Assoc'n v. Archer, 31 F.3d 1521, 1529-30 (10th Cir. 1994).

Counts 1 through 8 will be dismissed. We base the dismissal of the First Amendment claim on the grounds that it contains sweeping legal conclusions cast in the form of factual allegations; there is not sufficient information to outline the elements of the claims or to permit inferences to be drawn that these elements exist. The defendants are entitled to qualified immunity here as well; they were simply executing a search warrant lawfully obtained which was based on corroborated, sworn evidence that violations of the tax laws had taken place. Their actions were objectively reasonable.

A second prong to the allegations under the First Amendment avers that the seizures were void ab initio on the grounds that, inter alia, the Levetos were deprived of their right to "legitimate printed matter." Second Amended Complaint Counts 7 and 8. Clearly, alleged violations of the First Amendment under these circumstances will not void a valid search warrant. As noted supra, the plaintiff has not demonstrated that the warrant requirements of the Fourth Amendment--reasonableness, probable cause, and particularity with regard to the place to be searched and the things to be seized--were not followed. "[T]he fact that some of the seized property is expressive written material does not insulate it from government seizure where there is, as here, probable cause to believe that it was used to facilitate criminal activity." Frisby, 79 F.3d at 32; United States v. Stelten, 867 F.2d 446, 450-51 (8th Cir.), cert. denied, 493 U.S. 828 (1989) ("When the government wishes to seize written material for any reason other than the content of the material, the first amendment is not infringed and the scrupulous exactitude test does not apply."). Even when heightened particularity is not necessary, the search warrant must still reflect sufficient particularity so that the law enforcement officers who execute it are not granted impermissible discretion in determining what items are to be seized. See United States v. Dzialak, 441 F.2d 212, 216 (2d Cir.), cert. denied, 404 U.S. 883 (1971). That being so, reasonable officials in the situation alleged here did not violate the Levetos "clearly established" First Amendment rights. Accordingly, the IRS special agents are entitled to qualified immunity with respect to these claims contained in Counts 7 and 8.

D. State Law Claims

Mixed in with the other allegations are various tort claims against the defendants, including false imprisonment, false arrest and assault. We will dismiss these portions of Counts 11, 13, 15, 17 and 18. See Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§2675, 2679 and 2680(h), 28 U.S.C. 1346(b); Barber v. Grow, 929 F.Supp. 820, 824 (1996); McElroy v. U.S. , 861 F.Supp. 585 (W.D. Tex. 1994); Wright v. U.S. , 963 F.Supp. 7 (D.D.C. 1997).

Finally ¶172 of the Second Amended Complaint seeks compensatory damages as a result of the plaintiffs' three daughters suffering mental anguish as a result of witnessing their mother, plaintiff Margaret Leveto, visiting psychiatrists, psychologists and other emergency treatment for her post traumatic stress disorder. The Levetos also seek compensatory damages for their daughters' dropping out of college and suffering other behavioral problems. ¶¶176, 177 and 178. A party invoking federal jurisdiction must establish that he has standing to sue within the meaning of Article III, section two of the Constitution, which limits the courts to hearing actual cases and controversies. We hold that the Levetos lacked standing to seek recovery for alleged injuries they themselves did not suffer. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992); see also Fed.R.Civ.P. 17.

E. Statutory Claims

Counts 43 through 47 of the Second Amended Complaint allege "Miscellaneous Violations" of various federal statutes. None of these counts can survive a motion to dismiss.

There is no private cause of action under the following: 1) 18 U.S.C. §242 (criminal analogue to section 1983 of Title 42, prohibiting deprivation of rights under color of law), Brown v. Dugan, 329 F.Supp. 207, 209 (W.D. Pa. 1971), Williams v. Halperin, 360 F.Supp. 554 (S.D. N.Y. 1973) 2) 18 U.S.C. §1905 (Trade Secrets Act prohibiting disclosure of confidential information by federal officers and employees), Chrysler Corp. v. Brown, 441 U.S. 281 (1979); and 3) 26 U.S.C. §7213 (criminal provision regarding the felony of unauthorized disclosure of information), Rueckert v. Gore [85-2 USTC ¶9747], 587 F.Supp. 1238, 1239 n. 3 (N.D. Ill. 1984), aff'd [85-2 USTC ¶9747], 775 F.2d 208 (7th Cir. 1985). Accordingly, these portions of Counts 43, 44 and 47 will be dismissed for failure to state a claim upon which relief can be granted.

Although 42 U.S.C. §2000aa, cited in Counts 30, 31, 45 and 46, also known as the Privacy Protection Act, does confer standing to maintain a civil cause of action, it explicitly excludes any civil action for prohibited conduct against the officer or employee whose violation gave rise to the claim. 42 U.S.C. §2000aa-6(d). Accordingly, these portions of Counts 30, 31, 45 and 46 will be dismissed for failure to state a claim upon which relief can be granted.

Likewise, plaintiffs may not bring a civil cause of action against the defendants based on alleged violations of 26 U.S.C. §6103. 26 U.S.C. §7431 explicitly provides that for violations of section 6103, the "taxpayer may bring a civil action for damages against the United States . . ." (emphasis added); see also Huckaby v. U.S. Department of Treasury [86-2 USTC ¶9565], 794 F.2d 1041, 1048 (5th Cir. 1986); Mid-South Music Corp. v. Kolak [85-1 USTC ¶9262], 756 F.2d 23 (6th Cir. 1984) (United States is sole proper defendant to suit for violation of nondisclosure provisions of Internal Revenue Code section governing confidentiality of returns and return information, and no claim was stated against individual defendants for such statutory violation). The United States is not a party to this lawsuit. Accordingly, this portion of Counts 21, 22, 43, 44 and 47 will be dismissed for failure to state a claim upon which relief can be granted.

Moreover, Counts 43, 44 and 47 will be dismissed insofar as they assert a claim pursuant to 26 U.S.C. §7214. That section permits a taxpayer suit for damages only after a criminal conviction of the revenue officer or agent. Brunwasser v. Jacob [78-2 USTC ¶9603], 453 F.Supp. 567, 572-73 (W.D. Pa. 1978), aff'd, 605 F.2d 1194 (3d Cir. 1979). There is no such prerequisite conviction alleged. Accordingly, this portion of Counts 43, 44 and 47 will be dismissed for failure to state a claim upon which relief can be granted.

F. Motion for Default

Plaintiffs have filed a motion for default, on August 8, 1998 , requesting that we enter default judgment against "Joe Rivera" and the "10 Unnamed IRS Agents" because these individuals "failed to appear and answer to this civil action." We will deny this motion as moot. After the motion was filed and under order of court, the IRS has provided the names of all of the IRS special agents who participated in the search to the plaintiffs. We have granted leave to amend the caption and allegations pertaining to the unnamed defendants to include said individuals. Plaintiffs have not shown that there was proper service of process on the "10 Unknown IRS Agents"; they can hardly be expected to appear and answer.

G. Motion for In Camera Review

Plaintiffs have also filed a "Motion for In Camera Review to Determine if Proper Procedures and Safeguards Have Been Followed to Protect Electronically Monitored Evidence." Plaintiffs have asked that we conduct an in camera review to determine if the IRS is following proper procedures to protect audiotaped conversations between Dr. Leveto and a government informant. The plaintiffs have not cited any legal authority which supports their request. The use of an undercover informant as part of an investigation into possible violations of the Internal Revenue Codes is neither per se improper nor illegal. Any right to question the procedures used in obtaining the audiotape would be adequately protected by a suppression hearing. To the extent that plaintiffs argue that the Lapina Affidavit should have disclosed the existence of the audiotape to the magistrate judge before the warrants were issued, we have rejected this argument supra. Investigators are not obligated to disclose all information known to them in a warrant application, and a reviewing court should not focus on what is not contained in the affidavit. The motion will be denied.

H. Unknown IRS Agents

As we stated supra, it is uncontroverted that counsel to the named defendants have provided to the plaintiffs the names of all IRS agents who participated in the search of the plaintiffs' home and business. Leave was granted to amend the caption and complaint by order dated November 5, 1998 . Plaintiffs have not yet served a summons or complaint on any of these individuals. Federal Rule of Civil Procedure 4(m) states:

(m) Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

Over 120 days have now passed since the plaintiffs filed their Second Amended Complaint on October 26, 1998 . Accordingly, upon motion our own initiative, we will dismiss this action as to all unnamed defendants.

III. Conclusion

For the forgoing reasons, we will grant defendants' motion to dismiss.

Since this Bivens action has taken an expedited and separate course, we will reconsolidate the Dr. Leveto's FOIA actions and will assign a new lead case for filing purposes.

An appropriate order will be entered.

ORDER

AND NOW, to-wit, this 5th day of February, 2000, it is hereby ORDERED, ADJUDGED and DECREED THAT:

1. Plaintiffs' Motion for Entry of Default (Doc. 27) is DENIED;

2. Defendants' Motion to Dismiss Plaintiffs' Second Amended Constitutional Complaint (Doc. 51) is hereby GRANTED. The Second Amended Complaint is DISMISSED as to all defendants.

3. This action is also DISMISSED in its entirety as to the following named defendants, who have not yet been served: George Torbic, John Watson, Thomas Demko, David Kirk, Deborah Kirk, Robert Groover, Jeff Miller, Edward Wirth, Cynthia Underwood, and Elizabeth Quinn.

4. Plaintiffs' "Motion for In Camera Review to Determine if Proper Procedures and Safeguards Have been Followed to Protect Electronically Monitored Evidence" (Doc. 53) is DENIED;

5. The Clerk of Court is directed that this shall no longer be the lead case and shall not be consolidated with C.A. 98-285 E, 99-3 E and 99-101E ("the FOIA actions"). C.A. 98-285 E shall be the lead case and shall be consolidated with C.A. 99-3E and 99-101E.

6. Any future filing with respect to the FOIA actions shall be filed at C.A. 98-285E.

7. Plaintiff's "Motion for Contempt and to Seek Enforcement of Court Order" (Doc. 81) (relating to C.A. 99-101E) is hereby DENIED without prejudice, it appearing to the court that said issues have been resolved or are subject to future dispositive motion.

8. Pursuant to Local Rule 16, the Court shall conduct a case management conference with respect to the FOIA actions at C.A. 98-285 E on March 20, 2000 at 1:30 p.m.

¹ Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

² We are mindful of the fact that when faced with a motion to dismiss, we are not to consider matters outside the pleadings, unless the parties have been given notice that we intend to treat the motion to dismiss as a motion for summary judgment. However, the plaintiffs assert that there was no probable cause to issue the warrants, and thus, we must review the Lapina Affidavit in order to ascertain whether the issuance of the warrants was in error.

³ Dr. Leveto has also sued the IRS in four other civil actions, which, for pretrial purposes and administrative ease, were consolidated with the above-encaptioned case. These actions allege that the IRS has unlawfully failed to respond to his various FOIA requests. One of the four FOIA actions was voluntarily withdrawn by the plaintiff after our March 22, 1999 status conference.

⁴ United States v. Klein [57-2 USTC ¶9912], 247 F.2d 908 (2d Cir. 1957), cert. denied, 355 U.S. 924 (1958).

 

 

[2001-2 USTC ¶50,536] Daniel J. Leveto, Margaret A. Leveto, Appellants v. Robert A. Lapina, Richard W. Adams, Judy A. Graham, Suzi Hines, Thomas Demko, George Torbic, John Watson, David Kirk, Deborah Kirk, Robert Groover, Jeff Miller, Edward Wirth, Cynthia Underwood, Elizabeth Quinn, "Joe Rivera"

(CA-3), U.S. Court of Appeals, 3rd Circuit, 00-3241, 7/17/2001 , 2001 U.S. App. LEXIS 15933. Affirming a District Court decision, 2000-1 USTC ¶50,278

[Code Sec. 1 ]

Constitutional arguments: Fourth Amendment: Search and seizure: Qualified immunity.--Married taxpayers, whose suit against numerous IRS agents alleged constitutional violations, asserted valid Fourth Amendment claims, but the defendants were entitled qualified immunity due to uncertainty in the case law. The pat down of the taxpayers by the IRS agents may have been a violation of their Fourth Amendment rights because of a lack of reasonable suspicion. An investigation into possible tax evasion alone was not enough to pose a threat or risk of danger. Restraint of the taxpayers for a prolonged period was also unreasonable and closing the husband's business was unlawful. However, a reasonable agent could have believed that these activities were permitted under the Fourth Amendment; thus, the agents were entitled qualified immunity.

William G. McConnell, Ekker, Kuster & McConnell, Sharon , Pa. , for appellants. Jonathan S. Cohen, A. Wray Muoio, Department of Justice, Washington , D.C. 20530 , for appellees.

Before: MANSMANN, ALITO and FUENTES, Circuit Judges.

OPINION

ALITO, Circuit Judge:

Dr. Daniel Leveto and his wife, Margaret Leveto, filed this action against numerous known and unknown Internal Revenue Service ("IRS") agents. The Levetos asserted numerous federal constitutional claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L.Ed.2d 619, 91 S.Ct. 1999 (1971), as well as many federal statutory claims. All of the claims arose from an IRS investigation of the Levetos and the execution of search warrants at the Levetos' home and Dr. Leveto's veterinary office. The District Court dismissed the Complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6), and the Levetos took this appeal.

Most of the arguments raised on appeal lack merit and do not require further discussion. However, some of the Levetos' Fourth Amendment claims present important issues concerning the execution of search warrants. The Levetos allege that the IRS agents, in executing the warrants, improperly patted them down, detained them for up to eight hours without probable cause or reasonable suspicion, and closed Dr. Leveto's business. We hold that the Levetos successfully alleged certain violations of their Fourth Amendment rights, but we conclude that the defendants were entitled to qualified immunity due to uncertainty in the case law, and we therefore affirm the decision of the District Court.

I.

A.

The following facts are alleged in the Second Amended Complaint ("the Complaint"). On May 2, 1996 , as part of an investigation into Dr. Leveto's tax-related activities, 15 IRS agents executed search warrants at the Levetos' home and the Langdon and Leveto Veterinary Hospital, where Dr. Leveto worked as a veterinarian and general manager. See Complaint PP 20-21, 23-24, 31. According to the Complaint, Dr. Leveto arrived at the hospital that day at approximately 6:30 a.m. and was rushed in the parking lot by armed agents. Id. P 20. Some agents informed Dr. Leveto that they had a search warrant, flashed the warrant in front of him, and patted him down, while other agents shouted, "Where are the weapons?" Id. P 21. The agents escorted Dr. Leveto into the hospital, where he was held in a small room for roughly one hour and was prohibited from answering the phone or speaking with anyone other than the agents. Id. P 22.

After an hour, the agents ordered Dr. Leveto to accompany them to a location where they met other agents, and they then proceeded to the Levetos' home. Id. P 23. At the Levetos' home, the agents again displayed a search warrant and patted down Margaret Leveto, who was wearing only a nightgown. Id. Several agents remained at the Levetos' home, where they detained Mrs. Leveto for approximately six hours, interrogated her without providing Miranda warnings, and conducted a search in which they seized thousands of documents, including family medical records, personal mail, and most of the publications in the Levetos' personal library. Id. PP 24, 106-07, 120, 138.

Other agents ordered Dr. Leveto to return with them to the hospital, where they held him in a closed room for approximately six hours. Id. PP 25, 141. He was not permitted external communication and was supervised during visits to the restroom. Id. During this six-hour seizure, armed agents interrogated Dr. Leveto without providing Miranda warnings, while other agents searched the hospital. Id. PP 26-27, 137, 141, 145.

During the course of the search, the IRS agents sent hospital employees home and turned away clients in the parking lot, informing them that the hospital was closed until further notice. Id. PP 29-30. The agents likewise prevented Dr. Leveto from speaking with clients or fellow employees or otherwise performing his duties as general manager. Id. PP 31-32, 145.

When the search of the hospital concluded, the agents took away thousands of documents containing records of five companies, confidential medical and financial information on clients, and computer software. Id. PP 33-34. No weapons were located on the premises. Id. P 36.

B.

The named defendants moved to dismiss the Complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and they contended that they were entitled to qualified immunity on the federal constitutional claims. The District Court granted this motion. Holding that the pat downs did not violate the Levetos' Fourth Amendment rights, the Court quoted with approval another district court opinion stating that " 'the courts have permitted police officers to frisk all occupants of premises being searched without regard to any particularized suspicion that the officer may have' " and that this authority permits the frisking of "even those persons who happen to be scantily clad at the time of the search." App. 41 (quoting Collier v. Locicero, 820 F.Supp. 673, 681 (D. Conn. 1993)). With respect to the detention of the Levetos, the District Court relied on Michigan v. Summers, 452 U.S. 692, 69 L.Ed.2d 340, 101 S.Ct. 2587 (1981), and stated that "during execution of a search warrant, police can detain the occupant of the premises they have a warrant to search." App. 41. In addition, the Court held that "no reasonable officer in the defendants' position would have believed that their conduct violated clearly established constitutional rights." Id. at 42. This appeal followed.

II.

A.

Our review of both a dismissal under Fed.R.Civ.P. 12(b)(6) and a grant of qualified immunity is plenary. Board of Trustees of Bricklayers & Allied Craftsmen Local 6 of New Jersey Welfare Fund v. Wettlin Assocs., Inc., 237 F.3d 270, 272 (3d Cir. 2001); Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999). In reviewing the dismissal of a claim under Rule 12(b)(6), we must "accept the allegations of the complaint as true and draw all reasonable inferences in the light most favorable to the plaintiffs." Board of Trustees, 237 F.3d at 272. Dismissal is proper "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Brown v. Philip Morris Inc., 250 F.3d 789, 796, 2001 WL 533654, *3 (3d Cir. 2001).

This same approach must be followed when qualified immunity is asserted in a Rule 12(b)(6) motion. Although immunity is an affirmative defense, "a complaint may be subject to dismissal under Rule 12(b)(6) when an affirmative defense . . . appears on its face." ALA, Inc. v. CCAir, Inc., 29 F.3d 855, 859 (3d Cir. 1994); see also 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §1357, at 358-59 (1990) (citing cases). Thus, qualified immunity " 'will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint.' " Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996) (citation omitted); see also, e.g., Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998) (official immunity); Santamorena v. Georgia Military College, 147 F.3d 1337, 1340 (11th Cir. 1998).

B.

The principles governing claims of qualified immunity are well-established. Under this doctrine, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L.Ed.2d 396, 102 S.Ct. 2727 (1982); see also Torres v. United States , 200 F.3d 179, 184 (3d Cir. 1999); Grant v. City of Pittsburgh, 98 F.3d 116, 121 (3d Cir. 1996); Shea v. Smith, 966 F.2d 127, 130 (3d Cir. 1992). The doctrine of qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 89 L.Ed.2d 271, 106 S.Ct. 1092 (1986); see also Giuffre v. Bissell, 31 F.3d 1241, 1255 (3d Cir. 1994).

In determining whether qualified immunity applies in a specific case, we "first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all." Wilson v. Layne, 526 U.S. 603, 609, 143 L.Ed.2d 818, 119 S.Ct. 1692 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, 290, 143 L.Ed.2d 399, 119 S.Ct. 1292 (1999)); see also Assaf v. Fields, 178 F.3d 170, 174 (3d Cir. 1999); Siegert v. Gilley, 500 U.S. 226, 232, 114 L.Ed.2d 277, 111 S.Ct. 1789 (1991) ("A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all."); Torres, 200 F.3d at 184 ("A court . . . need not consider whether the right implicated was clearly established . . . if the plaintiff has not alleged a deprivation of a constitutional right."); Giuffre, 31 F.3d at 1247, 1255. ¹ "If so, [we] proceed to determine whether that right was clearly established at the time of the alleged violation." Wilson, 526 U.S. at 609 (quoting Conn , 526 U.S. at 290); see Assaf, 178 F.3d at 174.

A right may be clearly established even if there is no "previous precedent directly in point." Good v. Dauphin County Soc. Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d Cir. 1989); see also Assaf, 178 F.3d at 177. "The ultimate issue is whether . . . reasonable officials in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful." Good, 891 F.2d at 1092; see also Anderson v. Creighton, 483 U.S. 635, 640, 97 L.Ed.2d 523, 107 S.Ct. 3034 (1987) ("In the light of pre-existing law the unlawfulness must be apparent"; otherwise qualified immunity is available.); Assaf, 178 F.3d at 177 (quoting Anderson, 483 U.S. at 640); Giuffre, 31 F.3d at 1255 (quoting Good, 891 F.2d at 1092); Shea, 966 F.2d at 130 (" 'Clearly established rights' are those with contours sufficiently clear that a reasonable official would understand that what he is doing violates that right.").

If a reasonable official would have known that the conduct was unlawful, qualified immunity is generally not available. ² See Harlow, 457 U.S. at 818-19 ("If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct."); Assaf, 178 F.3d at 181 (Where "any hypothetical reasonable official should have known that" a state employee's position was protected by the First Amendment, qualified immunity was not available.); Shea, 966 F.2d at 130 (citing Harlow, 457 U.S. at 818). If, on the other hand, the law was not clearly established or a reasonable official could have believed the actions to be lawful, the official is entitled to immunity. See Harlow, 457 U.S. at 818; Karnes v. Skrutski, 62 F.3d 485, 492, 493-94 (3d Cir. 1995); Giuffre, 31 F.3d at 1256-57; Shea, 966 F.2d at 130; Good, 891 F.2d at 1092.

In this case, we must decide whether, "accepting the allegations of the complaint as true and drawing all reasonable inferences in the light most favorable to the plaintiffs," Board of Trustees, 237 F.3d at 272, "a reasonable [agent] could have believed [the IRS agents' actions in conducting the search] to be lawful, in light of clearly established law and the information the searching [agents] possessed." Anderson, 483 U.S. at 641; see also Wilson, 526 U.S. at 615; Torres, 200 F.3d at 184.

III.

A.

Dr. and Mrs. Leveto complain that the IRS agents violated the Fourth Amendment in patting them down during the execution of the search warrants. As noted, the agents allegedly patted down Dr. Leveto in the hospital parking lot as he arrived for work. The agents patted down Mrs. Leveto at her home.

A pat down is unquestionably a search covered by the Fourth Amendment. As the Supreme Court held in Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968), "it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a 'search.' " Id. at 16. Indeed, a pat down can be "a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment." Id. at 17; see also Complaint PP 166, 174.

As with other searches, the constitutionality of a pat down is judged by a standard of reasonableness. See Terry, 392 U.S. at 19-22; see also Illinois v. McArthur, 531 U.S. 326, [], 121 S.Ct. 946, 949, 148 L.Ed.2d 838 (2001) (The Fourth Amendment's " 'central requirement' is one of reasonableness."); Maryland v. Buie, 494 U.S. 325, 331, 108 L.Ed.2d 276, 110 S.Ct. 1093 (1990) ("The Fourth Amendment bars only unreasonable searches and seizures."); United States v. Sharpe, 470 U.S. 675, 685, 84 L.Ed.2d 605, 105 S.Ct. 1568 (1985) ("The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures."); Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 54 L.Ed.2d 331, 98 S.Ct. 330 (1977) (per curiam ) ("The touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' "). Reasonableness is determined "by balancing the need to search [or seize] against the invasion which the search [or seizure] entails." Terry, 392 U.S. at 21 (quoting Camara v. Municipal Court, 387 U.S. 523, 537, 18 L.Ed.2d 930, 87 S.Ct. 1727 (1967)); see also McArthur, 531 U.S. at [], 121 S.Ct. at 950 ("Rather than employing a per se rule of unreasonableness [in this case], we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable."); Buie, 494 U.S. at 331; Mimms, 434 U.S. at 109.

Based on this balancing, the Supreme Court has held that an officer may conduct "a reasonable search for weapons for the protection of the . . . officer, where [the officer] has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual." Terry, 392 U.S. at 27; see also Michigan v. Long, 463 U.S. 1032, 1034, 77 L.Ed.2d 1201, 103 S.Ct. 3469 (1983) (pat down allowed when officer "possesses an articulable suspicion that an individual is armed and dangerous"); Ybarra v. Illinois, 444 U.S. 85, 92-93, 62 L.Ed.2d 238, 100 S.Ct. 338 (1979) ("[A] reasonable belief that [a person] was armed and presently dangerous . . . must form the predicate to a patdown of a person for weapons."); United States v. Kithcart, 218 F.3d 213, 219 (3d Cir. 2000) (recognizing "that a police officer may conduct a reasonable search for weapons for his or her own protection without violating the Fourth Amendment 'where he[/she] has reason to believe that he[/she] is dealing with an armed and dangerous individual"); United States v. Kikumura, 918 F.2d 1084, 1092 (3d Cir. 1990) ("A police officer may search a detained individual for weapons if he has reasonable suspicion that the individual could be armed and dangerous to the officer or others."); United States v. Patterson, 885 F.2d 483, 485 (8th Cir. 1989) (security frisk upheld where officer "was armed with sufficient facts to be concerned about his safety and that of his fellow officers"); United States v. Corona, 661 F.2d 805, 807 & n.2 (9th Cir. 1981) (officer must "have a founded suspicion, based upon articulable facts, that [the suspect] was armed and presently dangerous"); United States v. Clay, 640 F.2d 157, 159, 161-62 (8th Cir. 1981) ("Protective searches are authorized only when the police officer has suspicion that the individual before him may be armed or otherwise presently dangerous."); United States v. Cole, 628 F.2d 897, 899 (5th Cir. 1980) (Terry requires "that specific articulable facts support an inference that the suspect might be armed and dangerous."). Thus, conducting a pat down is lawful when, under the circumstances, an officer has a reasonable belief that the subject is armed and dangerous.

To justify a pat down, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21; see also id. at 21 n.18 (The "demand for specificity in the information upon which police action is predicated is the central teaching of [the Supreme] Court's Fourth Amendment jurisprudence."); Buie, 494 U.S. at 332; Kithcart, 218 F.3d at 219; Kikumura, 918 F.2d at 1092 ("Officer, at the time of the search, must know of 'specific and articulable facts . . . .' "). The court must then determine whether "the facts available to the officer at the moment of . . . the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate." Terry, 392 U.S. at 21-22; see also Kithcart, 218 F.3d at 219.

The Supreme Court has also held that possession of a warrant to search particular premises is not alone sufficient to justify a pat down of a person found on the premises at the time of execution. In Ybarra v. Illinois, 444 U.S. at 94, the Court held that Terry "does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized . . . search is taking place." See also Clay, 640 F.2d at 160-62; Cole, 628 F.2d at 899. Thus, even though the police in Ybarra had a warrant to search the tavern in question, the police were not justified in patting down Ybarra merely because he was on the premises at the time of execution. See Ybarra, 444 U.S. at 91-94; see also Clay, 640 F.2d at 158, 160-62 (pat down of unknown visitor who arrived during execution of warrant not justified); Cole, 628 F.2d at 898-99 (pat down of individual who pulled into carport as police arrived to execute warrant at residence not justified).

B.

In view of the above authorities, we hold that the Complaint alleges a valid Fourth Amendment violation regarding the pat down of Mrs. Leveto. In order to pat her down, the agents needed a reasonable suspicion that she was armed and dangerous, and under Ybarra her presence on the premises was not alone sufficient to justify the pat down. We recognize that Mrs. Leveto, unlike Ybarra, was a resident of the premises being searched and may have been a subject of the criminal investigation. These are factors that must be considered in determining whether the agents had reasonable suspicion that Mrs. Leveto was armed and dangerous. See Summers, 452 U.S. at 695 n.4; cf. United States v. Barlin, 686 F.2d 81, 87 (2d Cir. 1982) (distinguishing Ybarra, who was "innocuously present in a crowd at a public place," from woman who entered apartment evidently used for narcotics trafficking with individuals apparently involved in an ongoing narcotics deal). However, we do not believe that these factors alone are enough to provide a reasonable suspicion, and the Complaint alleges no other facts about Mrs. Leveto's background, her prior activities, or the nature of the crimes under investigation that provided reasonable suspicion that she presented a danger to the agents.

In assessing whether law enforcement officers are justified in taking precautions for their own protection, "we must . . . keep in mind that a threat that may seem insignificant to us in the security of our chambers may appear more substantial to a reasonable officer whose own life or safety is at stake," Mellott v. Heemer, 161 F.3d 117, 122 (3d Cir. 1998), but at the same time we cannot endorse a blanket rule that law enforcement officers may always pat down any resident who is present in premises being searched and who may be a subject of the investigation, no matter what the nature of the suspected offense. We thus conclude that, if the allegations in the Complaint concerning the pat down of Mrs. Leveto are viewed in the light most favorable to the plaintiffs, Mrs. Leveto's Fourth Amendment rights were violated.

We reach a similar conclusion concerning the constitutionality of the pat down of Dr. Leveto. The Complaint identifies no reason to suspect that Dr. Leveto was armed or that he even owned any firearms. ³ The investigation into possible tax evasion, without more, provided little reason to suspect that he posed a threat. Moreover, at the time of the pat down, Dr. Leveto was not in a building or room being searched but in the parking lot. We cannot assume that he would have entered the veterinary hospital or even approached the officers if they had not rushed his car and patted him down. Accordingly, the plaintiffs have alleged a claim for unreasonable search based on the pat down of Dr. Leveto.

C.

Although we conclude that the Complaint asserts valid Fourth Amendment claims regarding the pat downs of Mrs. Leveto and Dr. Leveto, we also hold that the agents were entitled to qualified immunity with respect to these claims. While we now reject the proposition that law enforcement officers may always pat down a resident who is found in premises being searched and who is a possible subject of the investigation, this was not clearly established when these warrants were executed. Indeed, there was at least some significant authority to the contrary. For example, in Rivera v. United States, 928 F.2d 592, 606 (2d Cir. 1991), which the District Court cited, the Second Circuit wrote that the police "have the authority to make a limited search of an individual on [premises being searched] as a self-protective measure." As a leading treatise states, some of the lower court cases decided after Ybarra "indicated a willingness to allow a frisk provided the person had a somewhat stronger link to the premises than Ybarra did to the bar where he was found." 2 Wayne R. LaFave, Search and Seizure §4.9(d), at 641 (3d ed. 1996); ⁴ see United States v. Reid, 302 U.S. App. D.C. 374, 997 F.2d 1576 (D.C. Cir. 1993) (person departing apartment to be searched for drugs); United States v. Harvey, 897 F.2d 1300 (5th Cir. 1990) (person who drove to location where search had discovered drugs); United States v. Patterson, 885 F.2d 483 (8th Cir. 1989) (person who arrived at scene of drug search driving resident's vehicle). In view of these authorities, we hold that a reasonable agent could have believed that patting down Mrs. Leveto and Dr. Leveto was permitted by the Fourth Amendment. We therefore hold that the defendants in this case are entitled to qualified immunity with respect to the Fourth Amendment pat down claims.

IV.

A.

We now consider the plaintiffs' argument that they were seized in violation of the Fourth Amendment during the lengthy process of executing the search warrants at the veterinary hospital and the Levetos' residence. A seizure within the meaning of the Fourth Amendment occurs "whenever a police officer accosts an individual and restrains his freedom to walk away." Terry, 392 U.S. at 16; see also id. at 19 n.16 ("When [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen . . . we may conclude that a 'seizure' has occurred."); Summers, 452 U.S. at 696 (Detention of homeowner was a seizure where he "was not free to leave the premises while the officers were searching his home."); Clay, 640 F.2d at 159 (Restriction of freedom to leave "by physical restraint or by sufficient show of authority" effects a seizure.).

Here, it is plain that both Dr. Leveto and Mrs. Leveto were seized. As previously noted, according to the Complaint, Dr. Leveto's freedom was restrained from the time of the initial pat down in the parking lot through the forced relocation and armed detention that persisted until the completion of the search some eight hours later. See Complaint PP 20-33. During this time, Dr. Leveto's freedom of movement was restricted, and he was even prevented from speaking with others or using a restroom without a chaperone. Dr. Leveto was thus subjected to an extended "seizure" within the meaning of the Fourth Amendment. Similarly, Mrs. Leveto was "seized" when she was detained during the six-hour search of her home.

As "the central inquiry under the Fourth Amendment . . . [is] the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security," the Levetos' seizures can be upheld as constitutional only if they were reasonable. Terry, 392 U.S. at 19. "The general rule [is] that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause." Summers, 452 U.S. at 700. However, an "exception [exists] for limited intrusions that may be justified by special law enforcement interests." Id. The reasonableness of these intrusions is determined by balancing the intrusiveness of the seizure against law enforcement interests and law enforcement's "articulable basis for suspecting criminal activity." See id. at 699-705 (employing balancing to arrive at general rule); see also Terry, 392 U.S. at 20-21, 27; Baker v. Monroe Township, 50 F.3d 1186, 1192 (3d Cir. 1995).

The Supreme Court has identified several law enforcement interests that, when balanced against the degree of intrusion, might justify a limited seizure pursuant to a search: namely, the "general interest [in] . . . effective crime prevention and detection," Terry, 392 U.S. at 22; the "interest in preventing flight in the event that incriminating evidence is found"; "the interest in minimizing the risk of harm to the officers" and the occupants of the area searched, which is served "if the officers routinely exercise unquestioned command of the situation"; and the interest in "the orderly completion of the search," which "may be facilitated if the occupants of the premises are present" to open secured doors or containers. Summers, 452 U.S. at 702-03; see also Baker, 50 F.3d at 1191; United States v. Edwards, 103 F.3d 90, 93 (10th Cir. 1996); United States v. Cochran, 939 F.2d 337, 339 (6th Cir. 1991); Daniel v. Taylor, 808 F.2d 1401, 1404 (11th Cir. 1986). ⁵ In addition, the Supreme Court has found that "if the evidence that a citizen's residence is harboring contraband is sufficient to persuade a judicial officer that" a search of the home is justified, "the connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant." Summers, 452 U.S. at 703-05.

Whether these law enforcement interests can justify a seizure depends on the intrusiveness of the seizure. The Court's holdings in Michigan v. Summers and Dunaway v. New York , 442 U.S. 200, 60 L.Ed.2d 824, 99 S.Ct. 2248 (1979), illustrate this principle.

In Michigan v. Summers, 452 U.S. at 693 & n.1, police officers found the owner of a home descending the front steps as they arrived to search for narcotics pursuant to a warrant. The officers stopped and detained the homeowner while they executed the search, which located narcotics under a bar in the basement. Id. The Supreme Court held that this detention "was 'substantially less intrusive' than an arrest." Id. at 702 (quoting Dunaway, 442 U.S. at 210). The Court observed that the detention was only an incremental intrusion where there was already a warrant to conduct the more intrusive search of the home. 452 U.S. at 701, 703. Moreover, the Court noted that most people would prefer "to remain in order to observe the search of their possessions," and the Court added that "because the detention . . . was in [the detainee's] own residence, it could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station." Id. at 701, 702. Finally, the Court found that "the type of detention imposed . . . [was] not likely to be exploited by the officer or unduly prolonged in order to gain more information, because the information the officers [sought] normally [would] be obtained through the search and not through the detention." Id. at 701.

The Court found that the detention in Summers was reasonable in view of the limited nature of the intrusion, the law enforcement interests discussed above, and the individualized suspicion of criminal activity created by the detainee's link to the home being searched. Id. at 705. The Court went so far as to adopt a general rule "that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Id. (footnote omitted). The Court did not decide, however, whether this rule would apply if the warrant authorized a search for evidence rather than contraband, if the detention was "prolonged," or if other "special circumstances" existed. Id. at 705 nn.20-21.

In contrast to the circumscribed intrusion presented in Summers, the seizure involved in Dunaway v. New York "was in important respects indistinguishable from a traditional arrest." Dunaway, 442 U.S. at 212. Based on a tip that implicated Dunaway in a murder but did not provide probable cause for arrest, Dunaway "was taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room," "where he was questioned by officers." Id. at 203, 212. He was never told that he was, nor was he, free to leave. Id. at 212. On the other hand, he was not booked or told that he was under arrest, and he would not have been arrested had the interrogation proved fruitless. Id. The Court declined to treat Dunaway 's seizure as a narrow intrusion that could be justified by law enforcement interests and individualized suspicion. Id. at 211-16. Instead, the Court concluded that Dunaway 's detention without probable cause was unconstitutional, for "detention for custodial interrogation . . . intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest." Dunaway, 442 U.S. at 216.

B.

The seizure of Dr. Leveto falls somewhere between the detentions in Summers and Dunaway. Like the detention in Summers, Dr. Leveto's initial seizure at the hospital might be viewed as merely an incremental intrusion, for the agents had a warrant to conduct a pervasive search of his business, and it might be assumed that a manager would prefer to remain during the search. See Daniel, 808 F.2d at 1403.

However, other aspects of Dr. Leveto's detention were much more intrusive and resembled the detention in Dunaway. The length of Dr. Leveto's detention--a total of eight hours--is itself highly significant. Furthermore, during the entire eight-hour period, Dr. Leveto was restricted in communicating with others, and during the six-hour period after he was brought back to the hospital from his home, he was interrogated. Furthermore, Dr. Leveto's detention at his place of business, in contrast to Summer's detention at home, arguably increased the stigma imposed by the agents' search, for it allowed co-workers to see how Dr. Leveto was being treated by the authorities and prevented Dr. Leveto from responding to client needs. Cf. Daniel, 808 F.2d at 1404 (suggesting that one could argue both that detention at one's business adds only minimally and that it adds significantly to the stigma of the search).

Moreover, Dr. Leveto's detention involved the inconvenience and indignity of a forced ride with IRS agents to his home and back to his office. The Supreme Court recognized in Summers that a seizure is more intrusive if it "involves moving the suspect to another locale." Summers, 452 U.S. at 700 n.12 (quoting 3 Wayne R. LaFave, Search and Seizure §9.2, at 36-37 (1978)). Similarly, the Eighth Circuit has held that stopping someone three to five miles from his home and taking him back in handcuffs for the execution of a warrant is far more intrusive than the detention involved in Summers. United States v. Hogan, 25 F.3d 690, 693 (8th Cir. 1994); United States v. Boyd, 696 F.2d 63, 65 n.2 (8th Cir. 1982) (noting that Summers "certainly did not sanction the search and seizure of residents who, at the time of the search, are several blocks from their home"). But see Cochran, 939 F.2d at 339-40 (finding that seizure and return of a resident who "had driven a short distance from his home" was valid under Summers).

Finally, while it is unclear exactly how long the pre-arrest detention lasted in Summers, the Court did not regard it as "prolonged," see 452 U.S. at 705 n.21, and Dr. Leveto's eight-hour detention undoubtedly qualifies as prolonged under any reasonable understanding of that term. See Sharpe, 470 U.S. at 685 (recognizing the importance of brevity in appraising whether a seizure may be justified on less than probable cause); Baker, 50 F.3d at 1192 (recognizing that prolonged detention may ripen into an arrest).

As Dr. Leveto's detention was significantly more intrusive than that in Summers, we might well conclude that Summers does not apply and that Dr. Leveto's seizure, like that in Dunaway, could be justified only on a showing of probable cause. See Dunaway, 442 U.S. at 211-16 (rejecting invitation to apply balancing test for narrow intrusions and holding that probable cause must exist to justify "detention for custodial interrogation"); Summers, 452 U.S. at 700 ("The general rule [is] that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause."). But cf. United States v. Ritchie, 35 F.3d 1477, 1484 (10th Cir. 1994) (finding "no special circumstances showing that the intrusiveness of [the] . . . detention was sufficiently severe to preclude application of Summers" where suspect was detained as he was pulling out of his driveway and held for limited time during search of his home); Bernstein v. United States [97-2 USTC ¶50,980], 990 F.Supp. 428, 441 (D.S.C. 1997) (citing Summers in holding that IRS agents who executed search warrants for evidence at home and business in approximately two and four hours, respectively, "had the limited authority to detain the occupants at the premises while conducting the search of the premises"). At this stage of the proceedings, there is no suggestion that probable cause existed to seize Dr. Leveto, and consequently, if probable cause is necessary, Dr. Leveto's seizure would violate the Fourth Amendment.

We need not decide whether probable cause was required, however, because even under Summers' balancing approach for less intrusive seizures, Dr. Leveto's detention, as alleged, was unreasonable. ⁶ We have already discussed the great intrusion on Dr. Leveto's Fourth Amendment interests that resulted from the agents' alleged conduct, and on the other side of the balance, it appears that Dr. Leveto's seizure did little to advance the law enforcement interests that were found to justify the detention in Summers.

A primary law enforcement interest served by such detention is the prevention of flight in the event that incriminating evidence is found during the search. In this connection, the distinction between searches for contraband and searches for evidence is material. It is not uncommon for a search for contraband to produce items that justify an immediate arrest of the owner or resident of the premises, and a person who anticipates that a search may imminently result in his or her arrest has a strong incentive to flee. By contrast, a search for evidence--particularly complicated documentary evidence--is much less likely to uncover items that lead to an immediate arrest. Thus, even if the search is successful, the suspect may well remain at liberty for some time until the evidence is examined and an indictment is obtained. As a result, the incentive to flee is greatly diminished.

In Dr. Leveto's case, the agents sought evidence of a suspected tax evasion scheme. A search of this type is unlikely to produce an immediate arrest, and in this case, although the agents allegedly seized thousands of pages of documents and many computer files, neither Dr. Leveto nor his wife was arrested. See United States v. Schandl [91-2 USTC ¶50,580], 947 F.2d 462, 465 (11th Cir. 1991) (noting that tax evasion is a crime that is "generally only detected through the careful analysis and synthesis of a large number of documents").

Similarly, there was no compelling need to detain Dr. Leveto to protect the safety of the agents. If the agents had been conducting an investigation into a type of offense often accompanied by violence, detention for some length of time might have been reasonable. See Summers, 452 U.S. at 702; Torres, 200 F.3d at 185, 186 (quoting Summers, 452 U.S. at 702, for the proposition that narcotics searches may erupt in "sudden violence or frantic efforts to conceal or destroy evidence"); Baker, 50 F.3d at 1191 (noting that occupants of a residence subject to a drug raid "are likely to be armed"); Barlin, 686 F.2d at 87 (noting "the violent nature of narcotics crime") (quoting United States v. Vasquez, 634 F.2d 41, 43 (2d Cir. 1980)). By the same token, if the agents had possessed information that the Levetos were tied to a violent group or had violent backgrounds, detention for some period might have been justified. See Clay, 640 F.2d at 162 (knowledge that individual "previously had been engaged in serious criminal conduct" might justify pat down). Here, however, there is no evidence that such a threat existed. Dr. Leveto was under investigation for tax crimes, and the alleged facts do not suggest that he had any ties to violent organizations or a record of violence. Accordingly, it does not appear that there was any compelling safety reason for detaining him during the lengthy search.

Furthermore, Dr. Leveto's detention did little to advance the interest in orderly completion of the search. The agents apparently did not rely on Dr. Leveto to open locked doors or containers during the course of the search. Similarly, since Mrs. Leveto was at the Levetos' home, there was no apparent need for Dr. Leveto to be present at the home to provide access.

Nor was Dr. Leveto's extended detention necessary to prevent the destruction of evidence. We recognize that Dr. Leveto conceivably could have returned to his home and destroyed or concealed evidence or instructed his wife to do so if the agents had not detained him and restricted his ability to use the telephone. Cf. Bernstein [97-2 USTC ¶50,980], 990 F.Supp. at 433 (IRS agents, who were executing warrants at business and home, prevented suspect at business from calling girlfriend at home "due to safety and record destruction concerns."); Garavaglia v. Budde, 1994 U.S. App. LEXIS 36161, *9, 1994 WL 706769, at *3 & n.3 (6th Cir. 1994) (unpublished disposition) (noting that no authority was cited for "a clearly established right to make a telephone call . . . while being detained during a search pursuant to a warrant" and that "other circuits have suggested that no such right exists"). However, the warrants in this case were allegedly executed by a large group of agents, and thus it appears that the agents could have minimized this presumed risk by executing the warrants at the hospital and home simultaneously, rather than waiting to take Dr. Leveto from the hospital to his home before executing the warrant there. Moreover, once the searches of the home and hospital were both underway, the need to detain Dr. Leveto to prevent the loss of evidence was minimal. See United States v. Timpani, 665 F.2d 1, 2-3 (1st Cir. 1981) (agents reasonably barred the detainee from leaving or calling anyone during the first 45 minutes of a five-hour search "until other coordinated searches were underway" to prevent premature warning). Had Dr. Leveto attempted to disrupt the evidence at either site, the agents would have been present to intervene.

Finally, it is not clear that the agents had a sufficient "articulable and individualized suspicion" to justify even a brief detention of Dr. Leveto. Although the Supreme Court has found that such a suspicion exists when law enforcement officers have a valid warrant to search a home for contraband and the detainee is an occupant of the home, the Court has also noted that the same may not be true if the search warrant merely seeks evidence. See Summers, 452 U.S. at 703-05 & n.20. The Eleventh Circuit has addressed this issue and held that the rationale justifying detention based on the occupant's connection to the premises "is not applicable to a search for evidence, because the existence of mere evidence, as opposed to contraband, on the premises does not suggest that a crime is being committed on the premises." Daniel, 808 F.2d at 1404; see also Ritchie, 35 F.3d at 1483 (recognizing "that in some instances the existence of a warrant based on probable cause would not" provide an individualized suspicion of criminal activity); United States v. Rowe, 694 F.Supp. 1420, 1424 & n.2 (N.D. Cal. 1988) (recognizing "that a search for evidence will rarely give rise to an individualized suspicion that the occupant is committing a crime on the premises," but noting exceptions to this rule). We agree with this reasoning as a general rule. In sum, even applying the balancing test used in Summers, Dr. Leveto's lengthy detention, as alleged in the Complaint, was not reasonable and constituted a violation of his Fourth Amendment rights.

Mrs. Leveto has likewise stated a claim of unreasonable seizure based on her lengthy detention. Mrs. Leveto's detention did not exhibit many of the characteristics of an arrest that were manifest in Dr. Leveto's seizure. However, her detention was distinguishable from the detention in Summers in that she was detained for a prolonged period--approximately 6 hours--during a search for evidence. Accordingly, her seizure appears to have been significantly more intrusive than that in Summers.

On the other side of the balance, the law enforcement interests that might justify her detention were less weighty than were the law enforcement interests in Summers. As with Dr. Leveto, the interest in preventing flight was minimal, and the risk of harm to the agents was smaller than it is in cases, such as Summers, in which the crime under investigation is one that is often associated with violence and in which the search may well result in an immediate arrest. Cf. Summers, 452 U.S. at 702. Nor do the allegations in the Complaint suggest that Mrs. Leveto's presence advanced the orderly completion of the search.

Because Mrs. Leveto's detention was more intrusive than that in Summers but was not supported by commanding law enforcement interests or individualized suspicion, we conclude that the ruling in Summers does not extend to Mrs. Leveto's seizure. Her seizure could only be justified on probable cause. Since there is no suggestion that the agents had probable cause to detain Mrs. Leveto, we hold that Mrs. Leveto has stated a claim for unconstitutional detention.

C.

Again, however, we are compelled to conclude that a reasonable agent could have believed, in light of the case law at the time, that the detentions of Dr. Leveto and Mrs. Leveto were lawful.

Because Dr. Leveto's experience fell somewhere between the situations in Dunaway and Summers, a reasonable officer could have concluded that Dr. Leveto's detention would be governed by the Summers' holding. As noted, the Court in Summers adopted the general rule "that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Summers, 452 U.S. at 705 (footnote omitted). While the Court did not extend this rule to cases involving searches for evidence or cases featuring prolonged detention, the Court also did not foreclose such extensions. See id. at 705 n.20 ("We do not decide whether the same result would be justified if the search warrant merely authorized a search for evidence."); id. at 705 n.21 ("Special circumstances, or possibly a prolonged detention, might lead to a different conclusion in an unusual case . . . ."). Nor did the Court decide whether transporting a suspect would change the result. See id. at 700 n.12 ("Moving the suspect to another locale" "might cast doubt upon the reasonableness of the [Terry-type] detention."). After Summers, other courts acknowledged, but did not resolve, these issues. See Torres, 200 F.3d at 185 (Supreme Court indicated in Summers, 452 U.S. at 705 n.21, that detention might be unlawful "in an 'unusual case' involving 'special circumstances, or' " if prolonged); Pecsi v. Doyle, 1991 U.S. App. LEXIS 17828, *5 n.1, 1991 WL 137597, at *2 n.1 (6th Cir. 1991) (unpublished disposition) (leaving "a definitive resolution of the evidence/contraband distinction for another day"); Rowe, 694 F.Supp. at 1424-25 (applying Summers' reasoning to a search for evidence, but declining to suggest "a blanket extension of the Summers rule to all cases involving searches for evidence"). Moreover, lower courts suggested that rather lengthy detentions would fall within Summers' purview. See Daniel, 808 F.2d at 1405 ("Since the dissenters in Summers expressly raised the point, the Summers majority apparently appreciated that the concept of detention during searches of premises entails the prospect of detentions lasting several hours."); Rowe, 694 F.Supp. at 1424 ("Although the Summers Court did not define the duration of permissible detention, it apparently contemplated that occupants could be detained long enough for police to complete extensive searches."). Moreover, dicta in opinions of this Court and others occasionally described the scope of the authority to detain pursuant to Summers in sweeping terms. See Torres, 200 F.3d at 185 ("The Supreme Court has held that officers executing a search warrant lawfully may restrain persons present at the searched premises."); Baker, 50 F.3d at 1191 ("Under Michigan v. Summers, during execution of a search warrant, police can detain the occupant of the house they have a warrant to search.") (citation omitted); Rivera, 928 F.2d at 606 ("Absent special circumstances, the police of course have the authority to detain occupants of premises while an authorized search is in progress, regardless of individualized suspicion."). Accordingly, at the time the agents acted, the breadth of the Summers rule was highly uncertain.

In light of this uncertainty, a reasonable officer could have concluded that the extended detention of Dr. Leveto, including his conveyance to and from his home, was an appropriate incident to the execution of the warrant at the hospital. See Wilson, 526 U.S. at 617 ("Given such an undeveloped state of the law, the officers in this case cannot have been 'expected to predict the future course of constitutional law.' ") (quoting Procunier v. Navarette, 434 U.S. 555, 562, 55 L.Ed.2d 24, 98 S.Ct. 855 (1978)). Similarly, a reasonable officer could have concluded that the Summers rule would govern Mrs. Leveto's detention at home, rendering her detention lawful. See Summers, 452 U.S. at 705 n.19.

We are therefore required to hold that the agents were entitled to qualified immunity on the Levetos' unreasonable seizure claims. Our holding is consistent with those of other courts. See Daniel, 808 F.2d at 1403-05 (finding defendant agents entitled to qualified immunity where law was uncertain as to permissible length of detention and applicability of Summers to searches for evidence rather than contraband); Garavaglia, 1994 WL 706769, at *2-*3 (qualified immunity properly granted to IRS agent on claim of unconstitutional, six-hour detention at business premises pursuant to search warrant for evidence of tax evasion as neither Supreme Court nor Sixth Circuit had determined whether Summers would apply to search for evidence, rather than contraband). But cf. Heitschmidt, 161 F.3d at 839 (recognizing that Summers did not decide whether probable cause was necessary for detention pursuant to a search for evidence, declining to give the law enforcement interests identified in Summers any significant weight, and denying qualified immunity at the pleading stage on plaintiff's unreasonable detention claim); Mena v. City of Simi Valley, 226 F.3d 1031, 1039-41 (9th Cir. 2000) (where officers may have exceeded scope of proper search and thereby extended length of detention, denial of qualified immunity at summary judgment stage was proper); Pecsi, 1991 WL 137597, at *3 (Because the Sixth Circuit could not tell at the summary judgment stage whether "a five to six hour detention [was unduly prolonged] when the items listed in the affidavit may well have been in plain view" and because "clearly established law requires that 'the officers remain on the premises only so long as is reasonably necessary to conduct the search,' " the defendants were not yet entitled to qualified immunity.).

V.

Having concluded that the District Court properly dismissed the claims arising from the Levetos' pat down and detention, we address one final claim. In their Complaint, the Levetos allege that the closure of Dr. Leveto's business during the search violated the Fourth Amendment. To the extent that this claim relies on the restrictions placed on Dr. Leveto, those restrictions were considered in finding that his detention was unreasonable. At this point, we focus on whether the overall interference with the hospital's operation led to an unreasonable search. We have located little authority directly on point.

One district court, however, has addressed the issue. In Bernstein v. United States, IRS agents simultaneously executed search warrants at the home and business of a man suspected of filing false tax returns. Bernstein [97-2 USTC ¶50,980], 990 F.Supp. at 432. At the business--a delicatessen--"all customers or employees were asked to leave and the business was closed for the duration of the [four-hour] search." Id. at 432, 433. According to a declaration submitted in the case, closure was "the established procedure in search warrants involving businesses open to the public." Id. at 432. The court found that plaintiff had failed to state a claim based on closure of the business because "there is certainly no constitutional right to not have federal agents temporarily close a business site pursuant to a search warrant in a criminal investigation." Id. at 437; see also id. at 441 ("There is no constitutional right to have an investigative agency conduct a criminal search after business hours or at a more convenient time."); O'Ferrell v. United States, 968 F.Supp. 1519, 1535 (M.D. Ala. 1997) (noting in the context of the discretionary function exception to federal tort liability that "constitutional law does not specifically prohibit" the closing of a business during a search). Thus, "the fact that the customers were requested to leave and that the site was temporarily closed [did] not pose constitutional issues." Bernstein [97-2 USTC ¶50,980], 990 F.Supp. at 441.

We do not agree with the Bernstein court's analysis. For present purposes, we must assume that the sole authority upon which the defendants in this case relied when they restricted the normal operation of the veterinary hospital was the authority conferred by the warrants that they were executing, and those warrants merely authorized the defendants to search for and seize evidence of certain federal crimes. It necessarily follows that any authority that the defendants possessed to restrict the operation of the veterinary hospital derived from the authority to search for and seize the evidence in question and that the scope of their authority to restrict the hospital's operation was no broader than was necessary to permit the search and seizure to be carried out in an effective, safe, and reasonably expeditious fashion. There may be circumstances in which a search warrant for a place of business cannot be executed properly unless the business is entirely shut down for at least a brief time, but the allegations of the Complaint do not establish the existence of such circumstances. Consequently, we hold that the closure of the hospital, as alleged in the Complaint, was unlawful.

Once again, however, we are constrained to hold that the defendants are entitled to qualified immunity. The unlawfulness of shutting down a business simply because a search warrant was being executed on the premises was not clearly established at the time of the search in this case and, indeed, as noted, the scant authority on this point appeared to support the lawfulness of the defendants' conduct. Cf. Wilson v. Layne, 141 F.3d 111, 115-16, 118-19 & n.11 (4th Cir. 1998) (finding officers entitled to qualified immunity where the law was not clearly established and officers could have believed their conduct justified by legitimate law enforcement interests), aff'd, 526 U.S. 603, 617, 618, 143 L.Ed.2d 818, 119 S.Ct. 1692 (1999) (affirming grant of qualified immunity given "undeveloped state of the law"); Enlow v. Tishomingo County, 1990 WL 366913, at *9 (N.D. Miss. 1990) (Where officials seized a business "for five days because they thought the premises was the site of illegal gambling," qualified immunity was available because "a reasonable officer could have thought probable cause existed.").

VI.

Because this case comes to us on appeal from a dismissal under Fed.R.Civ.P. 12(b)(6), we know only what the plaintiffs allege that the defendants did when the warrants were executed; we have no idea what facts would have emerged if we knew the defendants' side of the story or if the case had been tried. However, if the plaintiffs' allegations are true, the warrants in this case were executed in a manner that violated the Fourth Amendment. Nevertheless, because of uncertainty in the case law at the time of the events in question, we affirm the decision of the District Court on qualified immunity grounds. See Brown v. Grabowski, 922 F.2d 1097, 1118-19 (3d Cir. N.J. 1990) (recognizing that the clearly established requirement "may produce distressing results," but finding defendants entitled to qualified immunity).

¹ We have said, however, that "where appropriate, we may consider whether the constitutional rights asserted . . . were 'clearly established' at the time the individual officials acted, without initially deciding whether a constitutional violation was alleged at all." Giuffre, 31 F.3d at 1255; see also Acierno v. Cloutier, 40 F.3d 597, 607 n.7 (3d Cir. 1994) (en banc ).

² "If the official pleading the [qualified immunity] defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained." Harlow, 457 U.S. at 819. No extraordinary circumstances appear on the face of plaintiffs' Complaint, nor have defendants sought to fit within this exception.

³ Indeed, Dr. Leveto alleges that he is dedicated to animal welfare and that he and his family oppose hunting. Complaint P 36.

⁴ This treatise also viewed the Supreme Court's decision in Michigan v. Summers, 452 U.S. 692, 69 L.Ed.2d 340, 101 S.Ct. 2587 (1981), as expressing "greater concern about the dangers attending execution of a search warrant where private premises are involved and persons connected with the premises are present." 2 LaFave, supra, §4.9(d), at 642 n.76.

⁵ A detention may be reasonable even if fewer than all of these law enforcement interests are present. See United States v. Bohannon, 225 F.3d 615, 617 (6th Cir. 2000).

⁶ The Court in Summers adopted the general rule "that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Summers, 452 U.S. at 705 (footnote omitted); see id. at 705 n.19; Ritchie, 35 F.3d at 1482, 1483-84. However, the Court explicitly acknowledged that this rule might not apply "if the search warrant merely authorized a search for evidence," if the detention were prolonged, or if other special circumstances existed. 452 U.S. at 705 nn.20-21. The search warrants at issue here both sought evidence rather than contraband. Moreover, both Dr. Leveto and Mrs. Leveto were detained for a prolonged period. Accordingly, we cannot assume that Summers' general rule automatically applies. Instead, we apply the analytical approach used in Summers, balancing law enforcement interests and individualized suspicion against the intrusiveness of the seizure, to determine whether the Levetos' detentions were constitutional. See Heitschmidt v. City of Houston, 161 F.3d 834, 838 (5th Cir. 1998) (acknowledging that Summers rejected "a completely ad hoc approach," but applying Summers' balancing approach where the detention at issue was more severe than that in Summers ).