MENA v CITY OF SIMI VALLEY, 9956720
U.S. 9th Circuit Court of Appeals
MENA v CITY OF SIMI VALLEY
9956720
IRIS MENA; JOSE E. MENA,
Plaintiffs-Appellees,
v.
CITY OF SIMI VALLEY,
Defendant,
and
No. 99-56720
RANDY G. ADAMS; DARIN L.
D.C. No.
MUEHLER; ROBERT BRILL; MARVIN
CV-98-08512-AHM
HODGES; ROY JONES; VINCENT
ALLEGRA; ALAN MCCORD; RICHARD
OPINION
THOMAS; RONALD CHAMBERS;
WILLIAM LAPPIN; ARNOLD
BAYNARD; JEFFREY DOMINICK; JACK
GREENBURG; RICHARD LAMB; FRANK
AHLVERS; JOHN ADAMCZYK; TIM
BROWN,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted
August 11, 2000--Pasadena, California
Filed September 22, 2000
Before: John T. Noonan, Stephen S. Trott, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Trott
_________________________________________________________________
SUMMARY
The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 2000 by West Group.
_________________________________________________________________
Individual Rights/Civil Rights
The court of appeals affirmed an order of the district court
in part and reversed in part. The court held that a search war-
rant for a single-family residence is not overbroad merely
because the officer who prepared the supporting affidavit
knew that a large number of persons lived in the structure, and
that it contained rooms adjacent to the living room that were
padlocked from the outside.
While investigating a shooting in their capacities as officers
of the Simi Valley Police Department, appellants Darin Mue-
hler and Robert Brill identified Raymond Romero as the
prime suspect, and determined that he and Genaro Gonzales
belonged to the same street gang. They also learned that
Romero and Gonzales lived in a "poor house," i.e., a single-
family residence with a large number of persons renting
and/or occupying separate private rooms.
The officers determined that the residence was located at
1363 Patricia Avenue, and that a man who identified himself
as "Raymond" answered the telephone when a third party cal-
led. From two earlier visits to the location on police business,
Muehler and Brill knew that several rooms adjacent to the liv-
ing room were secured with padlocks from the outside,
although they did not know where the doors led.
Muehler prepared an affidavit for a warrant to search 1363
Patricia Avenue for firearms and related items. He stated that
the residence was designed for a single family, but was occu-
pied by a large number of individuals. However, Muehler did
not indicate that he had been to the Mena residence before,
and had seen that all the doors adjacent to the living room
were shut, and some were padlocked from the outside. A
magistrate issued a search warrant for the entire premises.
Appellee Jose Mena owned the house at 1363 Patricia Ave-
nue; his daughter, appellee Iris Mena was a resident. When
Muehler, Brill, and other officers arrived at the house to exe-
cute the warrant, their version of the ensuing events differed
from that of the occupants.
The police contended that they complied with "knock and
announce" requirements before forcing entry; saw that some
of the rooms were padlocked from the outside; and forced
entry into the locked rooms, including the one in which Iris
Mena had been sleeping. The officers found her in bed, hand-
cuffed her, and detained her in the garage for two to three
hours until the residence was "cleared."
Iris Mena claimed that the officers did not comply with
"knock and announce" procedures, noting that although she
had been sleeping in the room closest to the front door, she
had not been awakened before the officers broke into the
house. According to her, the officers refused to say why she
was being detained, and instead summoned agents of the
Immigration and Naturalization Service (INS) to interrogate
her. The officers disclosed the purpose of the warrant and
search only after they removed her handcuffs and freed her,
she asserted.
The Menas sued Muehler, Brill and other officers involved
in the incident under 42 U.S.C. S 1983, alleging that the
defendants violated their civil rights by obtaining an over-
broad search warrant; executing an overbroad search; unlaw-
fully detaining Iris Mena during the search; and failing to
comply with the "knock and announce" requirements. The
defendants maintained that they were entitled to qualified
immunity because they reasonably believed that their conduct
was lawful under clearly established law.
Iris Mena testified that during the search, the officers
unnecessarily broke down two unlocked doors, and kicked a
door that was already open with a comment to the effect that
the kicking officer enjoyed doing so.
The district court denied defense motions for summary
judgment based on qualified immunity and/or the absence of
any constitutional violation. The defendants appealed.
[1] The Fourth Amendment prohibits the issuance of any
warrant except one particularly describing the place to be
searched, and the persons or things to be seized. This is satis-
fied if the description is such that the officer with the warrant
can with reasonable effort ascertain and identify the place
intended. In this case, the warrant described the place to be
searched with sufficient particularity. The question was
whether the warrant was overbroad because it authorized the
search of the entire premises, even though the house was a
multi-unit dwelling, and probable cause related only to
Romero's residential unit, and possibly common areas.
[2] There was no evidence sufficient to create a genuine
issue of material fact that any SVPD officer knew or should
have known prior to the application for the warrant that the
Mena residence was a multi-unit dwelling. While Muehler
and Brill had both been to the residence on prior occasions,
they were in the house for only a short time. Furthermore,
Muehler testified that he did not know where the padlocked
doors adjacent to the living room led. No evidence refuted
this statement. Muehler's description was accurate and mate-
rially consistent with the facts as he knew them at the time.
That Romero lived with a large number of subjects in a resi-
dence designed for one family did not suggest that the officers
knew or should have known that the house was a multi-unit
dwelling.
[3] Under the circumstances, the defendants reasonably
could have believed at the time the warrant was issued that
there was probable cause to search the entire premises. The
defendants were entitled to qualified immunity with regard to
the claim that the search warrant was overbroad.
[4] Police officers' authority to search premises described
in a warrant is not unlimited. If during the search, the officers
become aware that the warrant describes multiple residences,
they must confine their search to the residence of the suspect.
In this case, shortly after the beginning of the search, the offi-
cers should have realized that the Menas' house was a multi-
unit dwelling, and that the warrant was overbroad. When the
officers entered the house, they observed that many of the
rooms were padlocked from the outside. On forcing entry into
the locked rooms, the officers saw that they were set up as
studio units. Considering that Muehler and Brill knew that a
large number of persons lived in the house, and that Muehler
had observed the padlocked doors on prior occasions, a jury
could have concluded that the search beyond Romero's room
and the common areas was unreasonable.
[5] Generally, if a structure is divided into more than one
occupancy unit, probable cause must exist for each unit to be
searched. However, a warrant is valid when it authorizes the
search of an address with several dwellings if the defendants
are in control of the whole premises, the dwellings are occu-
pied in common, or the entire property is suspect.
[6] There was virtually no evidence to show that Romero
had access to or was in control of the locked rooms inhabited
by the other residents. [7] The officers were required to dis-
continue the search of the property not reasonably in
Romero's control as soon as they discovered that there were
separate units on the property erroneously included within the
warrant. A reasonable jury could have determined that it was
unreasonable for the officers to continue the search.
[8] If the evidence that a citizen's residence is harboring
contraband is sufficient to persuade a judicial officer that an
invasion of the property is justified, it is reasonable to require
that citizen to remain while officers execute a warrant to
search his home. Thus, a warrant to search for contraband
founded on probable cause implicitly carries authority to
detain occupants while a proper search is conducted. While
detentions during a search will under most circumstances
prove reasonable, a detention may be unreasonable either
because the detention is improper, or because it is carried out
in an unreasonable manner.
[9] In the course of executing a warrant--the intended tar-
get of which was Romero--the defendants forcibly removed
Iris Mena from her bed, handcuffed her, brought her into the
garage in her sleeping clothes, and forced her to remain there
for two to three hours. Because the warrant was not invalid,
the officers were permitted to detain Mena while a proper
search was concluded. However, if a jury could have con-
cluded that the officers did not have probable cause to search
the areas other than Romero's room, Gonzales's room, and
common areas, Mena's detention may have been justified
only in connection with whatever search a jury would con-
clude was "proper."
[10] The defendants produced no evidence that Mena had
committed a crime, posed any threat to the officers, or was
resisting arrest or attempting to flee. Mena, who was only 18,
appeared to be sitting quietly and cooperating with the offi-
cers. Nevertheless, the police refused to inform her why she
was being detained, called out the INS to question her, and
kept her handcuffed throughout the detention. [11] Because a
jury could have concluded that Mena's detention past the
point of a proper search violated the fourth Amendment, her
unreasonable detention claim was to be decided by a trier of
fact.
[12] In light of Iris Mena's and the officers' contradictory
testimony, there was an issue of fact as to whether the police
announced themselves before forcing entry into the Mena
home. There was on summary judgment a triable issue of fact
on that question.
_________________________________________________________________
COUNSEL
Karen K. Peabody, Carrington & Nye, Santa Barbara, Califor-
nia, for the defendants-appellants.
James S. Muller, Los Angeles, California, for the plaintiffs-
appellees.
_________________________________________________________________
OPINION
TROTT, Circuit Judge:
City of Simi Valley Police Chief Randy G. Adams and sev-
eral police officers (collectively "Defendants") appeal the dis-
trict court's denial of their motion for summary judgment
based on qualified immunity. Defendants argue that the dis-
trict court erred by failing to determine whether, under the
clearly established law, the officers reasonably could have
believed their conduct in obtaining and executing a search
warrant for the residence of Jose and Iris Mena (collectively
"Plaintiffs") and in detaining Iris Mena was lawful. We have
jurisdiction pursuant to 28 U.S.C. S 1291 and, we AFFIRM in
part, REVERSE in part, and REMAND to the district court.
I
BACKGROUND
On January 13, 1998, Officers Darin L. Muehler
("Muehler") and Robert Brill ("Brill") of the Simi Valley
Police Department ("SVPD") responded to and began investi-
gating a gang-related drive-by shooting in Simi Valley. Dur-
ing their investigation, Officers Muehler and Brill learned that
their primary suspect, Raymond Romero, was in possession of
a .25 caliber handgun used in the shooting.
In addition, Raymond's brother, Anthony, told Officers
Muehler and Brill that Raymond Romero lived on Patricia
Avenue in a "poor house," which Anthony explained was "a
residence with a large number of subjects residing in a resi-
dence designed for one family." Anthony told the officers also
that Raymond Romero's friend (and fellow gang member),
Genaro Gonzales ("Gonzales"), had lived at the house on
Patricia Avenue, but that he believed Gonzales had moved to
Mexico. Anthony explained that his brother kept some of his
personal property at their mother's house because "Raymond
believes these items would be stolen at the Patricia Avenue
location." Finally, Anthony gave the officers his brother's
phone number, which was 522-9437.
Subsequently, Officer Muehler had a police dispatcher call
Raymond Romero's phone number and pretend there was a
problem with the "911" system on Patricia Avenue. The dis-
patcher asked the man who answered the phone to verify the
address from which he was answering. In response, the man
stated that the address was 1363 Patricia Avenue. The dis-
patcher then asked the man to hang up the phone and dial
"911," which he did. The incoming phone number was 522-
9437, which was listed to Genaro Gonzales. When the dis-
patcher asked the man if he was Gonzales, he said "No. A
friend," and then he said that his name was Raymond. Based
on this telephone call and the information learned from
Anthony Romero, the officers concluded that Raymond
Romero resided at 1363 Patricia Avenue, Simi Valley, Cali-
fornia.
The house located at 1363 Patricia Avenue, which Anthony
Romero described as a "poor house," was owned by Plaintiff
Jose Mena. Although Jose Mena lived at the Patricia Avenue
residence only part-time, his daughter, Iris, was a full-time
resident. In addition, several other unrelated boarders lived in
the Menas' home, renting rooms in the house, space in the
garage, and motorhouses and vans parked in the backyard.
Notably, Officers Muehler and Brill both had been to the
Mena residence on police business on at least two prior occa-
sions.
On January 29, 1998, Officer Muehler executed an affidavit
in support of a warrant to search the Mena house for, inter
alia, "[d]eadly weapons, specifically firearms including
ammunition, casings, holsters and cleaning equipment, knives
and accessories such as sheaves; [and] evidence of street gang
membership or affiliation with any street gang . . .." In
describing the Mena house, Muehler stated in the affidavit
that Anthony Romero had explained that it was a "poor
house," meaning "a residence with a large number of subjects
residing in a residence designed for one family. " However,
Officer Muehler's affidavit did not explain that he had been
to the Mena residence before, or that he had observed that all
of the doors adjacent to the living room were shut and that
some of them had padlocks on them.
Based on Officer Muehler's affidavit, a magistrate judge
issued a search warrant for Mena's residence.1 In particular,
the warrant authorized the search of:
1363 Patricia Avenue, City of Simi Valley, County
of Ventura, State of California, which is further
described as a single story, single family dwelling,
. . . with an attached garage . . . . To include all
rooms, attics, basements, closets, storage areas,
attached garages, and other parts therein; and the
surrounding grounds and any storage sheds,
detached garages, or out buildings of any kind
located thereon, any safes or locked boxes therein.
Any vehicles that are registered to or belonging to
occupants of the residence and that are on or adja-
cent to the property.
Additionally, the warrant authorized the search of the person
of Raymond Joseph Romero.
At approximately 7:00 a.m. on February 3, 1998, several
officers from the SVPD, including Muehler and Brill, along
with a SWAT team, executed the search warrant on Mena's
residence. Defendants claim that, before entering the house,
they complied with the knock and announce requirement.
Specifically, Defendants declare that they (1) "pounded" on
the front door, (2) yelled in both English and Spanish that
they were from the SVPD, had a warrant, and intended to
enter, (3) waited for approximately thirty seconds, and (4)
entered the house after receiving no response. Iris Mena2 says,
on the other hand, that the officers failed to comply with the
knock and announce requirement. She bases this claim on her
assertion that, although she was sleeping in the bedroom clos-
est to the front door, she was not awakened by the alleged
knock and announce. In any event, the officers used a batter-
ing ram to force entry into the Mena home.
After entering the house, the officers observed that some of
the rooms were locked, many with padlocks on the outside of
the doors. Nevertheless, the officers proceeded to force entry
into these locked rooms, including the bedroom in which Iris
Mena was sleeping. The officers found Iris Mena in bed, forc-
ibly turned her over, handcuffed her, and detained her in the
bedroom until the residence was cleared and secured by the
entry team. Once the house was secure, the members of the
SWAT team left the premises, and the remaining officers
searched the residence.
At that point, Iris Mena and the other residents at 1363
Patricia Avenue were taken to the garage where they were
detained, in handcuffs, for approximately two to three hours.3
During this time, the police refused to inform Iris Mena and
the others why they were being detained. Moreover, the
police contacted the Immigration and Naturalization Service
("INS"), and INS officers arrived at the scene during the
search and interrogated the detained residents, including Iris
Mena. Finally, when the officers completed their search, they
took Iris Mena back into her home, removed her handcuffs,
and told her of the purpose of the warrant and search.
On October 19, 1998, Plaintiffs filed suit under 42 U.S.C.
S 1983, alleging that Defendants violated their civil rights in
connection with the February 3, 1998 search of their home. In
July 1999, Defendants moved for summary judgment on the
ground that Plaintiffs' constitutional rights were not violated,
or, alternatively, that Defendants were entitled to qualified
immunity. After reviewing the papers and considering oral
argument, on August 10, 1999, the district court issued an
order denying the summary judgment motion, holding that
because (1) "a reasonable trier of fact could conclude that the
warrant and/or its execution was "overbroad," and (2) "a rea-
sonable trier of fact could conclude that Iris Mena's detention
was unreasonable," Defendants were not entitled as a matter
of law to qualified immunity. Defendants now appeal.
II
QUALIFIED IMMUNITY STANDARD
We review de novo a district court's decision denying sum-
mary judgment on the ground of qualified immunity. Moran
v. Washington, 147 F.3d 839, 844 (9th Cir. 1998). In deciding
whether Defendants are entitled as a matter of law to qualified
immunity, we must accept the facts in the light most favorable
to the Plaintiffs and then determine whether, in light of clearly
established principles governing the conduct in question, the
officers objectively could have believed that their conduct
was lawful. See Brewster v. Bd. of Educ. of Lynwood Unified
School Dist., 149 F.3d 977 (9th Cir. 1998); Act Up!/Portland
v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993)."This standard
requires a two-part analysis: 1) Was the law governing the
official's conduct clearly established? 2) Under that law,
could a reasonable officer have believed the conduct was law-
ful?" Id.
III
ANALYSIS
In their complaint, Plaintiffs allege that Defendants violated
their civil rights by (1) obtaining an overbroad search warrant,
(2) executing an overbroad search, (3) unlawfully detaining
Iris Mena during the search, (4) conducting the search in an
unreasonable manner, and (5) failing to comply with the
"knock and announce" requirement. Defendants maintain,
however, that they are entitled to qualified immunity because
the officers reasonably could have believed that their conduct
was lawful under the clearly established law.
A. Overbreadth of the Search Warrant
[1]"The Warrant Clause of the Fourth Amendment categor-
ically prohibits the issuance of any warrant except one `partic-
ularly describing the place to be searched and the persons or
things to be seized.' " Maryland v. Garrison, 480 U.S. 79, 84
(1987) (quoting U.S. Const. amend. IV). The Supreme Court
has held that this requirement is satisfied "if the description
is such that the officer with a search warrant can with reason-
able effort ascertain and identify the place intended." Steele
v. United States No. 1, 267 U.S. 498, 503 (1925). Here, there
is no doubt that the warrant described the "place to be
searched" -- 1363 Patricia Avenue -- with sufficient particu-
larity. Rather, the question is whether the warrant was over-
broad because it authorized the search of the entire premises
at 1363 Patricia Avenue, even though the house was a multi-
unit dwelling and probable cause related only to Romero's
residential unit and, possibly, common areas of the house.
In deciding whether the warrant was overbroad, we begin
with the Supreme Court's decision in Maryland v. Garrison.
In Garrison, the police mistakenly believed that the third floor
of a building contained only one residential unit at the time
they applied for, obtained, and initially executed a warrant to
search suspect McWebb's apartment for narcotics. Thus,
when the officers entered the first unit on that floor, which
they believed to be McWebb's apartment, they observed and
confiscated contraband. The officers later discovered, how-
ever, that the unit they were in actually was rented by Garri-
son, not McWebb. As soon as the officers realized they were
in Garrison's unit, they terminated the search. Nevertheless,
Garrison was charged with a crime based on the contraband
found in his apartment. Garrison, 48 U.S. at 80.
Garrison moved to suppress the evidence, arguing, inter
alia, that the warrant was overbroad. The Supreme Court held
that the evidence need not be suppressed on this ground
because "the warrant, insofar as it authorized a search that
turned out to be ambiguous in scope, was valid when it
issued." Id. at 86. The Court explained however, that
Plainly, if the officers had known, or even if they
should have known, that there were two separate
dwelling units on the third floor of 2036 Park Ave-
nue, they would have been obligated to exclude
respondent's apartment from the scope of the
requested warrant. But we must judge the constitu-
tionality of their conduct in light of the information
available to them at the time they acted . . . . The
validity of the warrant must be assessed on the basis
of the information that the officers disclosed, or had
a duty to discover and to disclose, to the issuing
Magistrate.
Id. at 85.
Relying on Garrison, Plaintiffs in this case claim that the
warrant was overbroad because, unlike the officers in Garri-
son, Officers Muehler and Brill knew or should have known
that there were separate dwelling units within the Menas'
house. Plaintiffs base this argument on the following facts: (1)
Muehler and Brill had been to the house on at least two prior
occasions; (2) during one of his prior visits, Officer Muehler
observed that all of the doors adjacent to the living room were
shut and that some of them were padlocked; and (3) Anthony
Romero told the officers that his brother lived in a "residence
with a large number of subjects residing in a residence
designed for one family."
[2] Although we accept these declarations as true, we reject
Plaintiffs' assertion that the warrant was overbroad. There is
absolutely no evidence in the record sufficient to create a gen-
uine issue of material fact that either Officer Muehler, Officer
Brill, or any other officer of the SVPD knew or should have
known prior to the application for the warrant that the Mena
residence was a multi-unit dwelling. While it is true that Mue-
hler and Brill both had been to the Mena residence on prior
occasions, they were in the house for only a short time. Fur-
thermore, although Muehler testified in his deposition that he
observed that all of the doors adjacent to the living room were
shut and that some of them were padlocked, he also testified
that he did "not know[ ] where those doors led." No evidence
refutes this statement. Officer Muehler's description in the
affidavit prepared for the warrant of the residence is both
accurate and materially consistent with the extrinsic facts as
he knew them at the time. The fact that Anthony Romero told
the officers that his brother lived in a "residence with a large
number of subjects residing in a residence designed for one
family" does not suggest that the officers knew or should have
known that the house was a multi-unit dwelling. The facts in
this case are plainly distinguishable from the facts in Liston
v. County of Riverside, 120 F.3d 965, 975 (9th Cir. 1997),
wherein we denied qualified immunity to officers because the
plaintiffs there made a sufficient showing of "deliberate or
reckless dishonesty" on the part of the affiant for a disputed
search warrant.
[3] Under the circumstances, Defendants reasonably could
have believed at the time the warrant was issued that there
was probable cause to search the entire premises. Cf. United
States v. Williams, 917 F.2d 1088, 1091-92 (8th Cir. 1990)
(holding that officers were entitled to qualified immunity
because they did not know the residence for which they
obtained a warrant actually contained multiple units). Accord-
ingly, we hold as a matter of law that Defendants are entitled
to qualified immunity with regard to the claim that the search
warrant for 1363 Patricia Avenue was overbroad. In this
respect, we remand with instructions to enter a summary judg-
ment in favor of all Defendants.
B. Overbreadth of the Search
Plaintiffs' next argument is that the manner in which the
search warrant was executed violated their constitutional
rights because, even after realizing that there were multiple
units within the Mena house, the police searched the entire
premises, including the individual residential units. Defen-
dants counter that the execution of the search was valid
because probable cause existed to search the entire premises,
not just Romero's room and the common areas. We disagree
with Defendants.
[4] Police officers' authority to search premises that are
described in a warrant is not unlimited. "If, during the search,
the officers become aware that the warrant describes multiple
residences, the officers must confine their search to the resi-
dence of the suspect." United States v. Kyles , 40 F.3d 519,
524 (2d Cir. 1994) (citing Garrison, 480 U.S. at 86-87). To
determine whether the officers should have realized they were
searching the wrong residence, the Garrison court set forth
the following standard: "[T]he validity of the search of
respondent's apartment pursuant to a warrant authorizing the
search of the entire third floor depends on whether the offi-
cers' failure to realize the overbreadth of the warrant was
objectively understandable and reasonable." Garrison, 480
U.S. at 88 (emphasis added).
Here, shortly after beginning the search, the evidence and
the reasonable inferences it supports are sufficient to suggest
that the officers should have realized that the Menas' house
was a multi-unit residential dwelling and, thus, that the war-
rant was actually overbroad. When the officers first entered
the house, they observed that many of the rooms were pad-
locked from the outside. Furthermore, upon forcing entry into
the locked rooms, the officers saw that the rooms were set up
as studio apartment type units, with their own refrigerators,
cooking supplies, food, televisions, and stereos. Considering
that Officers Muehler and Brill knew that a large number of
persons lived in the house, and that Muehler had observed the
padlocked doors on a prior occasion, we agree with the dis-
trict court that a jury could conclude from these facts that the
officers' search beyond Romero's room and common areas
was unreasonable.
[5] Defendants argue nevertheless that they are entitled to
qualified immunity because their conduct in executing the
warrant and in searching the entire premises was objectively
reasonable. Generally, if a structure is divided into more than
one occupancy unit, probable cause must exist for each unit
to be searched. United States v. Whitney, 633 F.2d 902, 907
(9th Cir. 1980). This rule, however, is not absolute. For exam-
ple, we have held that
a warrant is valid when it authorizes the search of a
street address with several dwellings if the defen-
dants are in control of the whole premises, if the
dwellings are occupied in common, or if the entire
property is suspect.
United States v. Alexander, 761 F.2d 1294, 1301 (9th Cir.
1985); see also United States v. Frazin, 780 F.2d 1461, 1467
(9th Cir. 1986).
[6] Defendants maintain that there was evidence that the
entire premises were suspect because Romero had access to
all parts of Mena's residence. Specifically, they argue that the
following facts support this conclusion: (1) Romero previ-
ously had secreted a gun at the residence of a fellow gang
member; (2) Gonzales, a gang member, had also lived at 1363
Patricia Avenue, although it was believed he had moved to
Mexico; (3) street gang members often hide weapons and evi-
dence in their homes and the homes of fellow gang members;
(4) Romero had access to areas of the premises occupied by
other residents, as evidenced by the fact that he answered
Gonzales's phone; and (5) other residents had access to
Romero's possessions, as evidenced by the fact that he was
worried that some of his belongings might be stolen. In short,
Defendants appear to be arguing that, because Romero and
Gonzales were gang associates, and they both lived in this
house, the police had probable cause to search the entire
premises at 1363 Patricia Avenue.
We reject Defendants' argument because, at most, the
aforementioned facts provided the officers with probable
cause to search Romero's room, Gonzales's room (if he still
lived there), and common areas. On the other hand, there is
virtually no evidence in the record to show that Romero had
access to or was in control of the locked rooms inhabited by
the other residents, such as Iris Mena.
[7] As the district court correctly stated, "the law is well
established that the officers `were required to discontinue the
search of [Plaintiffs' property not reasonably in Romero's
control] as soon as they discovered that there were [other]
separate units [on the property] and therefore were put on
notice of the risk that they might be in a [portion of the prop-
erty] erroneously included within the terms of the warrant.' "
(quoting Garrison, 480 U.S. at 87). Because a reasonable jury
considering all the facts could determine that it was unreason-
able for the officers to continue the search, we affirm the dis-
trict court's denial of qualified immunity on this claim.
C. Unlawful Detention
Third, Plaintiffs contend that Iris Mena's detention was
unlawful on the basis of its duration and the manner in which
it was carried out.4 Defendants once again assert that they are
entitled to qualified immunity as a matter of law because "a
reasonable officer at the scene could have believed that keep-
ing the four detained residents handcuffed and detained
together for the duration of the search was reasonably neces-
sary to avoid danger to the officers and residents, reduce the
risk of flight, and avoid interference with the search."
Because we conclude that the evidence raises triable issues
regarding the reasonableness of the detention, we affirm the
district court.
[8] The Supreme Court has held that
If the evidence that a citizen's residence is harboring
contraband is sufficient to persuade a judicial officer
that an invasion of the citizen's privacy is justified,
it is constitutionally reasonable to require that citizen
to remain while officers of the law execute a valid
warrant to search his home. Thus, for Fourth
Amendment purposes, we hold 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.
Michigan v. Summers, 452 U.S. 692, 704 -05 (1981) (foot-
notes omitted). However, the Court included a caveat:
"[S]pecial circumstances, or possibly a prolonged detention,
might lead to a different conclusion in an unusual case . . . ."
Id. at 705 n.21. Thus, "while detentions of occupants during
the period of a search will under most circumstances prove to
have been reasonable, a detention may be unreasonable in a
particular instance either because the detention itself is
improper or because it is carried out in an unreasonable man-
ner." Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994);
see also Liston v. County of Riverside, 120 F.3d at 977-79.
In Franklin v. Foxworth, this court denied law enforcement
officers qualified immunity on an unlawful detention claim.
Foxworth, 31 F.3d at 876-78. We held that
A detention conducted in connection with a search
may be unreasonable if it is unnecessarily painful,
degrading, or prolonged, or if it involved an undue
invasion of privacy. Detentions, particularly lengthy
detentions, of the elderly, or of children, or of indi-
viduals suffering from serious illness or disability
raise additional concerns. Of course, the presence of
any of these factors in an individual case does not
establish that the detention is unreasonable per se.
Rather, these factors, along with the Graham elements5
and any other circumstances relevant to an individ-
ual case, must be assessed in their totality.
Id. at 876. Applying this standard, the Foxworth court con-
cluded that the police "executed the warrant in an unreason-
able manner, first by removing a gravely ill and semi-naked
man from his sickbed without providing any clothing or cov-
ering, and then by forcing him to remain sitting handcuffed in
his living room for two hours rather than returning him to his
bed within a reasonable time after the search of his room was
completed." Id. at 876-77. In reaching this conclusion, the
court reasoned that
None of the officers had any reason to believe, on
the basis of the information they had prior to the
search or their observations once in the house, that
Curry had committed a crime, or that he was armed.
In fact, the officers were not even aware that Curry
lived in the house prior to executing the warrant. It
should also have been clear to them that Curry was
not a gang member.
Id. at 877.
Three years after Foxworth, we decided Liston v. County of
Riverside. In Liston, law enforcement officers executed a
search warrant for 8293 Saddlecreek Drive, Glen Avon, Cali-
fornia. Liston, 120 F.3d at 968. The intended target of the
search was James "Rocky" Hill. Id. At the time the warrant
was executed, however, Hill no longer resided at the Sad-
dlecreek residence. Id. As a result, the officers mistakenly
detained and searched the home of Jim Liston and his family.
Id.
The Listons sued the officers under 42 U.S.C. S 1983 argu-
ing, inter alia, that their detention was unreasonable and, thus,
in violation of the Fourth Amendment. In evaluating this
claim, we discussed Summers and Foxworth and recognized
that we must apply a "totality of the circumstances" test. We
held that the officers were not entitled to qualified immunity
because
under the Listons' versions of the facts, the officers
continued to detain them long after a reasonable offi-
cer would have known that the wrong people were
in custody and that the house was no longer owned
or occupied by Hill -- and, thus, long after there was
any reasonable cause for continuing to invade the
Listons' privacy.
Id. at 979.
[9] We conclude that, like Foxworth and Liston, the case at
bar may be an example of the "unusual case" contemplated by
the Supreme Court in Summers. In the course of executing a
warrant -- the intended target of which was Raymond
Romero -- Defendants forcibly removed Iris Mena from her
bed, handcuffed her, brought her into the garage in her sleep-
ing clothes, and forced her to remain there for two to three
hours. Because we have now concluded that this search war-
rant was not invalid, the Summers rule would permit these
officers as a matter of law to detain Ms. Mena while "a proper
search is concluded." Summers, 452 U.S. at 705. And, if the
jury here should conclude that the officers did have probable
cause to search the entire premises -- even after discovering
that the Mena's house was a multi-unit residential dwelling as
defined in Garrison -- then the lawful authority to detain Ms.
Mean would continue -- and a reasonable officer could so
conclude on these facts. However, if the jury should conclude
that the officers did not have probable cause to search areas
other than (1) Romero's room, (2) Gonzales' room, and (3)
common areas, then Ms. Mena's detention rests on a different
footing and may be justified only in connection with whatever
search the jury concludes to have been "proper."
[10] Defendants have produced no evidence that Ms. Mena
had committed a crime, posed any sort of threat to the offi-
cers, or was in any way resisting arrest or attempting to flee.
See Graham, 490 U.S. at 396. In fact, the videotape footage
reveals that Ms. Mena, who was only 18 years old at the time,
appeared to be sitting quietly and cooperating with the offi-
cers. Nevertheless, the police refused to inform Ms. Mena
why she was being detained, called out the INS to question
her about her citizenship status, and kept her handcuffed
throughout the entire two to three hour detention.
[11] Because a jury could conclude on the totality of these
facts and circumstances that Iris Mena's detention past the
point of a proper search violated the Fourth Amendment, we
affirm the district court with respect to her unreasonable
detention claim. It, too, shall be decided by a trier of fact.
D. Conduct During the Search
Next, Plaintiffs assert that the officers violated 42 U.S.C.
S 1983 by conducting the search itself in an unreasonable
manner, in particular by callously and needlessly ransacking
their home and destroying property. We have held that "offi-
cers executing a search warrant occasionally `must damage
property in order to perform their duty.' " Liston, 120 F.3d at
979 (quoting Dalia v. United States, 441 U.S. 238, 258
(1979)). Therefore, the destruction of property during a search
does not necessarily violate the Fourth Amendment. United
States v. Becker, 929 F.2d 442, 446 (9th Cir. 1991). Rather,
"only unnecessarily destructive behavior, beyond that neces-
sary to execute a warrant effectively, violates the Fourth
Amendment." Liston, 120 F.3d at 979; see also Becker, 929
F.2d at 446.
Here, Iris Mena testified in her deposition that, during the
search, the officers unnecessarily broke down two doors that
were unlocked. ("And the door that was in the garage, it was
already open, and they broke it anyways. And another room
that is right in front of Ray's room, it was open, too, at that
time, and they broke it, too."). In addition, Ms. Mena testified
that she saw Officer Allegra kicking a door on the patio that
was already open and saying "I like to destroy these kind of
materials, it's cool." In light of this testimony, Defendants
appear to have damaged Plaintiffs' property in a way that was
"not reasonably necessary to execute [the] search warrant."
Becker, 929 F.2d at 446. Because a reasonable officer would
have known that such conduct if proved was unlawful, we
affirm the district court.
E. Knock and Announce
[12] Lastly, Plaintiffs claim that Defendants violated the
Fourth Amendment by failing to "knock and announce"
before forcing entry into their home. Specifically, Plaintiffs
argue that, because Iris Mena, who was sleeping in the bed-
room nearest the front door, was not awakened by the alleged
"knock and announce," the police either did not "knock and
announce" at all, or they did not "knock and announce"
loudly enough to constitute adequate notice. Defendants
respond that, in fact, they did comply with the "knock and
announce" requirement and, therefore, are entitled to qualified
immunity.
The district court denied Defendants' summary judgment
motion on this issue because, in light of Iris Mena's and the
officers' contradictory testimony, there is an issue of fact as
to whether the police announced themselves before forcing
entry into the Mena home. We agree that there is, on sum-
mary judgment, a triable issue of fact on this question, and
affirm the district court.
IV
CONCLUSION
For the foregoing reasons, we affirm the district court,
except as to the claim that the warrant itself was on its face
overbroad. On this claim, we reverse the district court and
remand for the entry of summary judgment in favor of the
Appellants. AFFIRMED in part, REVERSED in part, and
REMANDED for further proceedings consistent with the
views expressed herein.
The parties shall bear their own costs of this appeal.
_______________________________________________________________
FOOTNOTES
1 The magistrate also issued a search warrant for the home of Raymond
Romero's mother and brother. That warrant is not at issue in this case.
2 Jose Mena was not present during the warrant service and execution
and, therefore, lacks standing to challenge the officers' compliance with
the knock and announce requirement. See United States v. Valencia-
Roldan, 893 F.2d 1080, 1081 n.1 (9th Cir. 1990).
3 There is a dispute about the length of the detention. While Iris Mena
declares that she was detained for approximately two to three hours,
Defendants assert that the detention lasted only about an hour and a half.
For purposes of summary judgment, however, we construe the facts in the
light most favorable to the non-moving party. Crystal v. United States, 172
F.3d 1141, 1147 n.9 (9th Cir. 1999). Thus, we assume that Iris Mena's
detention lasted between two to three hours.
4 Plaintiffs also contend that Iris Mena's detention was so extensive that
it constituted an arrest, and that such an arrest was not supported by proba-
ble cause. This discrete issue is not before us on appeal.
5 The "Graham elements " are those elements enumerated in Graham v.
Connor, 490 U.S. 386 (1989), including the severity of the crime, whether
the person being detained poses an immediate threat, and whether the sus-
pect is actively resisting arrest or attempting to flee. Id. at 396.