Daniel v. Taylor, 86-8258

• Decision Date: 24 September 1986
• Docket Number: No. 86-8258,86-8258
• Citation: 808 F.2d 1401
• Parties: Sylvia DANIEL, Plaintiff-Appellant, v. Earl TAYLOR, Keith Dunkel, Bernadette Hernandez, Fred Woodward, Ernest Dorling and Tommy Pritchard, Defendants-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1401

808 F.2d 1401

Sylvia DANIEL, Plaintiff-Appellant, v. Earl TAYLOR, Keith Dunkel, Bernadette Hernandez, Fred Woodward, Ernest Dorling and Tommy Pritchard Defendants-Appellees.

No. 86-8258

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Sept. 24, 1986.

Daniel Kane, Jake Arbes, Atlanta, Ga., for plaintiff-appellant.

Myles Eastwood, Robert T. Ross, Asst. U.S. Atty., Atlanta, Ga., for defendants-appellees.

Gary S. Walker, Atlanta, Ga., for Hernandez.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY, ANDERSON and EDMONDSON, Circuit Judges.

PER CURIAM:

This appeal presents the issue of whether law enforcement officers, who allegedly detained plaintiff for two hours and forty-five minutes without probable cause while searching for evidence pursuant to a search warrant, are entitled to qualified immunity because they did not violate a clearly established constitutional right of the plaintiff. The district court granted summary judgment to the defendants on immunity grounds, and we affirm.

On June 13, 1985, a United States magistrate issued a federal search warrant authorizing a search of the premises of S.W. Daniel, Inc. ("S.W.D.") for certain business records constituting evidence of possible violations of the National Firearms Act. At 2:15 p.m. on the same day, the defendants--agents of the Bureau of Alcohol, Tobacco and Firearms ("A.T.F.") and an Atlanta police officer--arrived at the named location. An A.T.F. agent showed the search warrant to plaintiff Sylvia Daniel, the proprietor of S.W.D. During the initial portion of the search, the officers required plaintiff to remain on the business premises.

The parties dispute the length of plaintiff's detention. According to plaintiff, she was allowed to leave sometime between 4:30 p.m. and 5:00 p.m. According to defendants, she was required to remain and did remain on the premises for approximately thirty minutes of the search.

Plaintiff subsequently filed this Bivens (Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)), and Sec. 1983 lawsuit against defendants, alleging that her detention violated her constitutional rights. In addition, her complaint raised state law tort claims against the defendants. The district court granted summary judgment for the defendants, on the grounds that defendants had qualified immunity from the constitutional claims and absolute immunity from the state law claims.

Since plaintiff has not mentioned on appeal the issue of absolute immunity from state law tort claims, we deem this issue to be abandoned. See Rogero v. Noone, 704 F.2d 518, 520 n. 1 (11th Cir.1983). The sole issue in this appeal is whether defendants are entitled to qualified immunity from plaintiff's constitutional tort claims.

The doctrine of qualified immunity applies both to plaintiff's Bivens action against the federal defendants and plaintiff's Sec. 1983 action against the Atlanta police officer. See Harlow v. Fitzgerald, 457 U.S. 800, 819 n. 30, 102 S.Ct. 2727, 2738 n. 30, 73 L.Ed.2d 396 (1982). Under the qualified immunity doctrine, government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate "clearly established ... constitutional rights" of which a reasonable person should have known. Id., 457 U.S. at 819, 102 S.Ct. at 2738.

Nothing in the record suggests that defendants had probable cause for detaining Ms. Daniel, as opposed to searching the business premises. Moreover, since we are reviewing a summary judgment, we must resolve all factual ambiguities in favor of the party opposing the motion. Wilson v. Taylor, 658 F.2d 1021, 1023 (5th Cir. Unit B 1981). ¹ Thus, we assume that Ms. Daniel was detained for two hours and forty-five minutes (i.e., until 5 p.m.). To analyze whether defendants are entitled to qualified immunity, we must determine whether defendant's detention of the plaintiff without probable cause while executing a search warrant violated a "clearly established" constitutional right.

As a general rule, an official seizure of a person must be supported by probable cause, even if no formal arrest is made. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The Supreme Court, however, has carved exceptions from this rule where a limited intrusion on a citizen's privacy is justified by special law enforcement interests. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 889 (1968) (even though no probable cause exists, an officer can "frisk" for weapons if he reasonably believes he is dealing with an armed and dangerous suspect); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (even though no probable cause exists, an officer can forcibly stop a suspect to investigate an informant's tip that suspect was armed and dangerous); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (even though no probable cause exists, roving Border Patrol agent can stop a vehicle near Mexican border if he is aware of specific articulable facts indicating that the vehicle contains illegal aliens.)

In Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), police officers detained a person while executing a search of a premises for drugs. Although a magistrate had determined that probable cause existed for the search, the Court assumed that probable cause did not exist for the detention of the person. Id., 452 U.S. at 692, 702, 101 S.Ct. at 2591, 2593. The Court ruled 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., 452 U.S. at 706, 101 S.Ct. at 2595 (footnote omitted).

In Summers, the Court explicitly reserved decision on "whether the same result would be justified if the search warrant merely authorized a search for evidence." Id, 452 U.S. at 706 n. 21, 101 S.Ct. at 2595 n. 21. The present case involves a search for evidence rather than contraband, since the defendants searched for business records. If Summers extends to this case, of course, defendants did not violate plaintiff's fourth amendment rights and need no immunity. We do not decide now whether the Summers rule extends this far.

To be entitled to qualified immunity, defendants need only show that it is an unsettled question of law whether Summers would be extended to this case. An examination of the Supreme Court's rationale in Summers indicates that it is not clear whether Summers would be extended to the present case. When determining whether a detention during a search for contraband pursuant to a search warrant is constitutional, the Summers Court weighed the intrusiveness of the detention, the law enforcement interests served thereby, and the individualized and articulable suspicion justifying such detention.

The Summers Court began by considering the intrusiveness of the detention. The Court reasoned that (1) detention only adds minimally to the intrusion of the search itself, and most persons would prefer to remain to observe a search; (2) the police would not be likely to exploit or unduly prolong the detention to gain information; (3) a detention at home adds only minimally to the public stigma associated with the search. Id., 452 U.S. at 702-03, 101 S.Ct. at 2593-94. The first of these "intrusion" rationales is clearly applicable in the present context, and nothing in the record ² suggests the second is not. Since plaintiff was detained on business premises which she owns, it can be argued that the detention added only minimally to the public stigma of the search. On the other hand, it can be argued that plaintiff was embarrassed "in public" by being detained with her employees. Thus, it is not clear whether the third "intrusion" rationale of Summers applies.

Next, the Summers Court considered the law enforcement interests which would be served by permitting the detention: (1) preventing flight in the event that incriminatory evidence is found, (2) minimizing the risk of harm to the officials, and (3) facilitating the orderly completion of the search, inasmuch as the detained occupant may, out of self-interest, open locked doors or locked containers. Id., 452 U.S. at 703-04, 101 S.Ct. at 2594. Since the defendants in the present case allowed plaintiff to leave before the completion of the search, the first of these law enforcement rationales may not be applicable. The second and third rationales, however, clearly do apply to the present case.

Finally, the Summers Court considered the nature of the articulable and individualized suspicion on which the police base the detention of an occupant of premises subject to a search warrant. According to the Court, the fact that a search warrant has been issued means that:

[a] judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime.... The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining suspicion of criminal activity justifies a detention of that occupant. Id., 452 U.S. at 704-05, 101 S.Ct. at 2594-95.

This rationale 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.

Lower court case law has...