Offenses by Officers
& Employees of U.S. Page5

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 ).