                                                                F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                                      PUBLISH
                                                                APR 26 2005
                   UNITED STATES COURT OF APPEALS
                                                              PATRICK FISHER
                                                                    Clerk
                                TENTH CIRCUIT



DENVER JUSTICE AND PEACE
COMMITTEE, INC.; LUIS
ESPINOSA-ORGANISTA,

            Plaintiffs - Appellees,

v.                                              No. 03-1470

CITY OF GOLDEN; DAVID FARLEY, a
detective with the Golden Police
Department, in his individual capacity;
JEFF D. KREUTZER, a detective with the
Golden Police Department, in his
individual capacity; DAVID J. THOMAS,
District Attorney for the First Judicial
District, in his official capacity; MARK
PAUTLER, an Assistant District Attorney
for the First Judicial District, in his
individual capacity; CITY AND
COUNTY OF DENVER,

            Defendants,

     and

ANTHONY ORTIZ, an officer with the
Denver Police Department, in his
individual capacity,

            Defendant - Appellant.
           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                        (D.C. No. 02-Z-0473 (BNB)


Stan M. Sharoff, Assistant City Attorney, Denver City Attorney’s Office (Thomas S. Rice
and Brian K. Matise, Senter Goldfarb & Rice, L.L.C., on the brief), Denver, Colorado, for
Defendant-Appellant.

Mark Silverstein, American Civil Liberties Union, (Lino S. Lipinsky de Orlov, McKenna
Long & Aldridge LLP, with him on the brief) Denver, Colorado, for Plaintiffs-Appellees.



Before BRISCOE, HOLLOWAY and HARTZ, Circuit Judges.


HOLLOWAY, Circuit Judge.


      Plaintiffs sued the City of Golden and Denver police officer Anthony Ortiz

(“Ortiz”) under 42 U.S.C. §§1983 and 1988, alleging violation of their Fourth

Amendment rights during a search of the Denver Justice and Peace Committee (“DJPC”)

offices. The District Court denied Defendants’ motion to dismiss claims against Officer

Ortiz on the ground of qualified immunity, for Ortiz’s pat-down search of Plaintiff-

Appellee Luis Espinosa-Organista (“Espinosa”), who is office manager of DJPC and was

on the premises at the time police executed their search warrant for the DJPC office.

Defendant Officer Ortiz now appeals.




                                            -2-
                                              I

                                     BACKGROUND

       In reviewing a District Court’s denial of a motion for dismissal, we accept as true

“all well pleaded facts in the complaint, as distinguished from conclusory allegations.”

Smith v. Plati, 258 F.3d 1167, 1774 (10th Cir. 2001). The following are the facts as

alleged by Plaintiff-Appellees DJPC and Espinosa in their Fourth Amended Complaint.1

       DJPC is an advocacy organization that focuses on United States foreign policy in

Latin America. It has generally been critical of past and present U.S. military

involvement in the region as well as economic policies promulgated by the World Bank

and International Monetary Fund which affect that region. DJPC’s activities include a

newsletter, website, speakers, articles, leaflets, letter-writing campaigns, picketing,

legislative advocacy and coalition work.

       DJPC shares office space in Denver with the Quaker-run American Friends




       Subsequent to filing their initial Complaint (Aplt. App. at 17), Plaintiffs filed five
       1

Amended Complaints (Aplt. App. at 40, 66, 94, 123 and 173). Although the Amended
Complaints add and delete allegations and claims relating to other issues, the Fourth
Amendment claims related to the frisk of Espinosa remained the same.

       Ortiz filed his Motion to Dismiss based on qualified immunity on July 25, 2003.
At the time the operative pleading was the Fourth Amended Complaint. Subsequent to
the Motion to Dismiss, a Fifth Amended Complaint was accepted for filing by the District
Court. The Fifth Amended Complaint raises the same constitutional claim under the
Fourth Amendment against Ortiz that was present in the Fourth Amended Complaint;
therefore this appeal was not mooted by its filing. Our opinion will cite to the Fourth
Amended Complaint.

                                             -3-
Service Committee (AFSC). On December 14, 2000, Golden city police officers searched

the DJPC and AFSC offices, pursuant to a search warrant issued by the Jefferson County

Court. Defendant Officer Ortiz and other Denver Police officers were also present for the

search. The Golden police were investigating an incident of vandalism during a DJPC-

organized protest at Kohl’s department store in Golden on December 9, 2000. The search

warrant authorized law enforcement officers to seize specified property at the DJPC

offices including but not limited to:

       - “Pamphlets, papers and flyers that are protest related;”

       - “Posters that are protest related;”

       - “Videotape and still photographs of persons protesting any organization or
       business;” and

       - “Membership lists for Denver Peace & Justice Committee”

Fourth Amended Complaint ¶34, Aplt. App. at 131.

       Plaintiff-Appellant Espinosa was not present when the police arrived to execute

the search warrant. He was contacted by his wife, Danielle Short, who is an employee of

AFSC and was present at the time the police arrived. Espinosa decided to come to the

office, arriving at about 1:30 p.m. while the search was already underway.2 When

Espinosa entered the DJPC office, he was immediately approached by two police officers

who asked him why he was there. Espinosa explained that he was DJPC’s office


       2
        The total duration of the search was alleged to have been approximately 3 ½
hours. Fourth Amended Complaint ¶37, Aplt. App. at 132.

                                               -4-
administrator and that his wife worked for the AFSC and was present. The police officers

asked him for identification, which he provided. After Espinosa provided his

identification, Defendant Police Officer Ortiz immediately put his hands on Espinosa and

conducted a pat-down search without Espinosa’s consent. While conducting the frisk,

Officer Ortiz asked Espinosa if he had any knives or other weapons. Espinosa said he did

not. Officer Ortiz’s frisk failed to disclose any weapons.

       Before Espinosa arrived at the office, everyone present had been asked to provide

identification to the police, but none had been frisked. Espinosa was the only one to be

frisked, and he was the only one present with dark skin and an apparent Hispanic

appearance. Plaintiff-Appellees allege that at the time Officer Ortiz conducted the pat-

down frisk, he did not have objective and articulable facts that would make a reasonable

person suspect that Espinosa was armed, nor those that would make a reasonable person

suspect Espinosa was involved in or about to be involved in criminal activity. Fourth

Amended Complaint ¶¶61-62, 98, Aplt. App. at 138, 144.

       Upon completion of the search, police officers confiscated membership lists,

mailing lists, phone tree lists, pamphlets, posters, newsletters, articles and other written

material. DJPC filed suit in the Federal District Court for the District of Colorado,

contending that the search and seizure violated its rights under the First and Fourth

Amendments and the Privacy Protection Act of 1980. Espinosa joined the action to seek

nominal damages and attorney’s fees from Officer Ortiz for the allegedly suspicionless


                                              -5-
pat-down frisk during the search of the DJPC office.

                                               II

                                 PROCEDURAL HISTORY

         Espinosa brought his action against Officer Ortiz seeking nominal damages

pursuant to 42 U.S.C. §1983 and attorney’s fees pursuant to 42 U.S.C. §1988. Because

the claim involved questions of federal substantive law under the Fourth Amendment and

42 U.S.C. §1983, the District Court had subject matter jurisdiction pursuant to 28 U.S.C.

§1331.

         Defendant Officer Ortiz moved to dismiss Espinosa’s claims against him under

Fed. R. Civ. P. 12(b)(6) based on qualified immunity. He filed his motion to dismiss on

July 25, 2003, and it was briefed and argued in the District Court on October 8, 2003.

         That day, in an oral ruling the District Judge stated that our decision in United

States v. Ward, 682 F.2d 876 (10th Cir. 1982) clearly establishes that once the police

possess a warrant to search the premises only, the Fourth Amendment prohibits the search

of persons found on the premises, regardless of that person’s relationship to the premises,

unless the police have a reasonable suspicion that the person is armed. Aplt. App. at 206.

She also noted as persuasive the decision in Munz v. Ryan, 752 F.Supp. 1537 (D.Kan.

1990), recognizing that the law of the 10th Circuit clearly prohibited the personal search

of a homeowner during the execution of a search warrant at her home, absent a

recognized exception to the warrant requirement.


                                               -6-
       At least at this stage of the litigation, the Judge found that there was no evidence to

support a reasonable suspicion that Espinosa was armed. She therefore denied Ortiz’s

motion to dismiss and denied Ortiz’s request that discovery be stayed pending appeal.

Ortiz appealed. Aplt. App. at 190.

       This Court has appellate jurisdiction pursuant to 28 U.S.C. §1291. The District

Court’s order filed October 20, 2003, denying Ortiz’s motion to dismiss on qualified

immunity grounds is a final collateral order for the purposes of §1291 under the holding

of Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), because it deprives Officer Ortiz of

immunity from the burdens of discovery and trial. DJPC’s claims are not before this

court. The dispositive question in this appeal is whether the District Court correctly

denied Ortiz’s motion to dismiss.

                                             III

                               STANDARD OF REVIEW

       All issues raised on appeal are questions of law that arise in the context of Ortiz’s

motion to dismiss based on qualified immunity. This Court reviews de novo the district

court’s decision on a motion to dismiss under Fed. R. Civ. P. 12(b)(6) based on qualified

immunity. See Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th

Cir. 1999). The court must view the factual allegations in the light most favorable to

Plaintiff, and should not dismiss the complaint unless it appears that Plaintiff cannot

prove any set of facts that would entitle him to relief. See Sutton, 173 F.3d at 1236.


                                             -7-
       In evaluating claims of qualified immunity, we must first determine whether

Defendant Ortiz’s actions, as alleged in the complaint, violated a constitutional or

statutory right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If we answer that question

affirmatively, we then must determine whether the right allegedly violated has 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.” Id. (quoting Anderson v. Creighton, 483 U.S., 635,

640 (1987)).

                                             IV

                                      DISCUSSION

       We are satisfied that Espinosa has sufficiently alleged that he was frisked without

reasonable suspicion that he was involved in any criminal activity or that he possessed a

weapon.3 Ortiz argues that for reasons of officer safety and general efficiency in

executing a lawful search warrant, police should have the authority to frisk persons who

“enter” an area where a search warrant is being executed, even without such reasonable



       3
         See Fourth Amended Complaint at ¶ 61 (“When he conducted the pat-down frisk,
Ortiz was not in possession of objective and articulable facts that would make a
reasonable person suspect that Espinosa was involved or about to be involved in criminal
activity.”). Aplt. App. at 138. See also Fourth Amended Complaint at ¶62 (“Ortiz was
not in possession of objective and articulable facts that would make a reasonable person
suspect that Espinosa was armed.”), ¶98 (“Ortiz did not have reasonable grounds to
suspect that Espinosa was armed. Nevertheless, Ortiz subjected Espinosa to a frisk.”).
Aplt. App. at 138, 144.

                                             -8-
suspicion.

       This Circuit has never articulated such a principle and will not do so now. As the

Supreme Court stated in Katz v. United States:

       ‘Over and again, this Court has emphasized that the mandate of the Fourth
       Amendment requires adherence to judicial processes,’ United States v. Jeffers,
       342 U.S. 48, 51 [(1951)] and that searches outside the judicial process, without
       prior approval by a judge or magistrate, are per se unreasonable under the
       Fourth Amendment – subject only to a few specifically established and well-
       delineated exceptions.

389 U.S. 347, 357 (1967). In Terry v. Ohio, 392 U.S. 1 (1963), it was held that the

officer “had reasonable grounds to believe that [the individual] was armed and dangerous,

and it was necessary for the protection of himself and others to take swift measures to

discover the true facts and neutralize the threat of harm if it materialized . . . .” Id. at 30.

In Terry, the Court concluded that:

       We merely hold today that where a police officer observes unusual conduct
       which leads him reasonably to conclude in light of his experience that
       criminal activity may be afoot and that the persons with whom he is dealing
       may be armed and presently dangerous, where in the course of
       investigating this behavior he identifies himself as a policeman and makes
       reasonable inquiries, and where nothing in the initial stages of the encounter
       serves to dispel his reasonable fear for his own or others’ safety, he is
       entitled for the protection of himself and others in the area to conduct a
       carefully limited search of the outer clothing of such persons in an attempt
       to discover weapons which might be used to assault him. Such a search is a
       reasonable search under the Fourth Amendment, and any weapons seized
       may properly be introduced in evidence against the person from whom they
       were taken.

Id. at 30-31 (emphasis added).

       Ybarra v. Illinois, 444 U..S. 85, 93-94 (1979), emphasized the narrow scope of the

                                               -9-
Terry exception, holding that nothing in Terry authorizes a “generalized cursory search

for weapons.” Id. at 94. The Ybarra Court further expressly held that “[t]he ‘narrow

scope’ of the Terry exception 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 narcotics search is taking place.” Id. at 94

(emphasis added). The emphasized statement just quoted (“even though that person

happens to be on premises where an authorized narcotics search is taking place.”) directly

rejects the principal argument of Ortiz: that the law was uncertain as to the absence of an

exception permitting a frisk where the object of the “frisk” happens to be on premises

being searched.

       Our court has focused further on the limitations of a police officer’s authority to

frisk individuals in analogous circumstances in United States v. Sporleder, 635 F.2d 809

(10th Cir. 1980) and United States v. Ward, 682 F.2d 876 (10th Cir. 1982). In Sporleder,

we invalidated a police officer’s pat-down frisk of an individual who was present at the

site of a suspected meth lab, a site where officers were executing a search warrant. Id.

We said that Terry v. Ohio does not permit a generalized “cursory search for weapons”

and that “[e]xcept as it may relate to an officer’s reasonable belief that a person is armed

and presently dangerous, it is of no consequence that the person is an object of the

government’s suspicion that led to the search of the premises.” Sporleder, 635 F.2d

supra at 814. In Ward, law enforcement officers executed a search warrant at Ward’s


                                            -10-
home and frisked Ward “as a routine precaution.” Ward, supra, 682 F.2d at 880. Even

though the law enforcement officers had probable cause to believe Ward was committing

a federal offense, he was not under arrest and the pat-down frisk was invalid because “it

was not supported by a reasonable suspicion that he was armed and presently dangerous.”

Id.

       Ortiz urges that the execution of a search warrant involves risks of harm to law

enforcement officers even when no special danger to the police is evidenced in the record.

This risk of harm, he urges, should provide police with the authority to “routinely frisk”

any persons whom they encounter and who seek to “enter” an area where a lawful search

warrant is being executed. The Supreme Court has noted that during the execution of a

search warrant, “[t]he risk of harm to both the police and the occupants is minimized if

the officers routinely exercise unquestioned command of the situation.” Michigan v.

Summers, 452 U.S. 692, 702-3 (1981)).

       The Court concluded in Summers, and recently stated again in Muehler, et al v.

Mena, 125 S. Ct. 1465 (2005) , that police officers have a “categorical” authority to

detain persons found on premises subject to a lawful search warrant for “contraband”

materials, incidental to the officers’ execution of the warrant. Muehler, supra at 1470.

The Court in Muehler also held that “[i]nherent in Summers’ authorization to detain an

occupant of the place to be searched is the authority to use reasonable force to effectuate

the detention.” Id. In sum, Ortiz’s argument is that the authority to detain extends fairly


                                            -11-
broadly to the exercise of search warrants such as the one in question here, and that an

officer’s search of an individual by means of a “routine frisk” is appropriate in

conjunction with such a detention.

       Ortiz argues that the instant case is analogous to the situation we confronted in

United States v. Ritchie, 35 F.3d 1477 (10th Cir. 1994), where FBI agents detained the

occupant of premises being searched and subjected him to a pat-down frisk. Although the

focus of our inquiry in Ritchie was on the detention, rather than the frisk, Ortiz noted that

we acknowledged the frisk several times in our opinion. See id. at 1479 (noting that

police officers present at Mr. Ritchie’s residence while awaiting a search warrant stopped

Mr. Ritchie as he attempted to leave, explained that they would be detaining him while

they awaited a warrant to search his residence, and “performed a quick pat-down

search.”); See also id. at 1481 (“The facts here show that the agents never held Mr.

Ritchie at gunpoint, that they handcuffed him only after formal arrest, that no agents used

physical force in his detention apart from the pat-down search for weapons, and that they

did not otherwise engage in strong arm tactics.”) While we made no explicit comment on

the reasonableness or unreasonableness of the pat-down search of Mr. Ritchie, we

expressly approved the officers’ actions preventing him from leaving the scene, noting

this was permissible to prevent his returning later to try to thwart the execution of the

warrant. See id. at 1484 (quoting 2 LaFave, SEARCH AND SEIZURE §4.9(e) at 306.).

Based upon this logic, Ortiz asserts that a person who seeks to “enter” an area where a


                                            -12-
warrant is being executed could pose a similar threat to that of a person who leaves and

returns to the scene, and that police ought to be permitted to both detain and search such a

person even without reasonable, individualized suspicion.

       Ortiz’s reliance on Summers, Muehler and Ritchie is problematic. One significant

difficulty, which Ortiz himself acknowledges with respect to Ritchie, is the fact that we

there did not actually analyze the frisk at all, focusing instead on the temporary detention

of the suspect. Likewise, neither Summers nor Muehler refer to a frisk at all. The Court’s

recent Muehler decision deals instead with Ms. Muehler’s detention and handcuffing by

police officers executing a search warrant and her interrogation by an Immigration and

Naturalization Service officer who was accompanying the police. The Court’s decision in

Summers, 452 U.S. supra at 695 n. 4, upon which both Ritchie and Muehler were largely

based, expressly warned us that the “seizure” or detention issue “should not be confused

with the ‘search’ issue presented in Ybarra v. Illinois.” Here, unlike in Muehler,

Summers or Ritchie, we are squarely confronted with the pat-down search of Mr.

Espinosa, without his consent and without reasonable individualized suspicion.

       A further distinction, of potentially even greater significance, is the nature of the

search warrant being executed. In Ritchie, police were searching Mr. Ritchie’s property

for the proceeds of an armed robbery, suspected to have been committed by Mr. Ritchie

himself just one day earlier. Ritchie, 35 F.3d supra at 1479. In Muehler, police were

investigating a gang-related, drive-by shooting and searching for weapons and evidence


                                             -13-
of gang membership on a property where at least one and possibly more armed gang

members resided. Muehler, 125 S. Ct. supra at 1468. Here police were not searching for

weapons, the proceeds of a violent crime, or contraband. Rather, the warrant in this case

authorized officers to search for potentially First Amendment protected material:

pamphlets, flyers, posters, photographs and membership lists. Police were investigating

an incident of alleged vandalism, but neither DJPC, Espinosa, nor anyone else at the

scene was necessarily implicated in the incident.

       In Summers, the Court expressly noted that its reasoning authorizing a temporary

detention did not apply where the warrant authorizes a search for mere evidence at the

premises of a party whose possession of the materials sought is not a crime. See

Summers, 452 U.S. supra at 705 n. 20 (citing Zurcher v. Stanford Daily, 436 U.S. 547,

560 (1978)). As we explained in Ritchie, 35 F.3d supra at 1483, the Zurcher case

“involved the validity of third-party searches, where there is ‘probable cause to believe

that fruits, instrumentalities or other evidence of crime is located on identified property

but [there is no] probable cause to believe that the owner or possessor or the property is

himself implicated in the crime.’” (quoting Zurcher, 436 U.S. at 553). We concluded in

Ritchie that this footnote from Summers “stems from a concern that in some instances the

existence of a warrant based on probable cause would not give the police ‘an easily

identifiable basis for determining that suspicion of criminal activity justifies a detention

of [the] occupant.’”


                                             -14-
       In Ritchie, we also noted the Court’s reference in Summers to searches for

“contraband” and concluded that to the extent the Summers Court restricted its holding to

warrants authorizing the search for “contraband,” the definition of “contraband” was

broad enough to include the stolen property Mr. Ritchie was alleged to have in his

possession. The Court in Muehler, 125 S.Ct. supra at 1470 n. 2, reiterated the restriction

of police officers’ authority to detain occupants of a premises being searched to the case

“when a neutral magistrate has determined police have probable cause to believe

contraband exists[.]”

       In sum, we hold that Muehler, Summers, and Ritchie do not support an officer’s

categorical authority to conduct a pat-down search of any person who seeks to enter an

area where a search warrant is being executed. This is not to say such a search would

never be permitted. Although the Muehler Court did not discuss any “frisk” of Ms.

Muehler, it did approve of handcuffing her and holding her at gunpoint, which are

significant extensions beyond an ordinary, peaceable detention as was the case in

Summers and Ritchie. Importantly, though, the Court stressed that these extreme

measures were justified by the circumstances in Muehler:

       But this was no ordinary search. The governmental interests in not only
       detaining, but using handcuffs, are at their maximum when, as here, a warrant
       authorizes a search for weapons and a wanted gang member resides on the
       premises. In such inherently dangerous situations, the use of handcuffs
       minimizes the risk of harm to both officers and occupants. Cf Summers, supra
       at 702-703 (recognizing that the execution of a warrant to search for drugs
       "may give rise to sudden violence or frantic efforts to conceal or destroy
       evidence.") Though the safety risk inherent in executing a search warrant for

                                           -15-
          weapons was sufficient to justify the use of handcuffs, the need to detain
          multiple occupants made the use of handcuffs all the more reasonable. Cf
          Maryland v. Wilson, [519 U.S. 408][,]. . . 414 [(1997)] (noting that "danger to
          an officer from a traffic stop is likely to be greater when there are passengers
          in addition to the driver in the stopped car").

Muehler, 125 S. Ct. supra at 1470-71.

          We hold that the law was sufficiently clear at the time Ortiz conducted the pat-

down search of Espinosa that Ortiz may not claim qualified immunity. The Supreme

Court recently reviewed the legal standard for determining whether a government official

is entitled to qualified immunity in Hope v. Pelzer, 536 U.S. 730 (2002), stating:

          For a constitutional right to be clearly established, its contours must be
          sufficiently clear that a reasonable official would understand that what he is
          doing violates that right. That is not to say that an official action is
          protected by qualified immunity unless the very action in question has
          previously been held unlawful, but it is to say that in light of pre-existing
          law that unlawfulness must be apparent.

Id. at 739 (citations and internal quotations omitted). In discussing the degree of factual

similarity that is required to conclude that the law is clearly established, the Court noted

that all that is required is that prior case law provide “fair warning” that an officer’s

conduct would violate constitutional rights. Id. at 739-40. Thus, “officials can still be on

notice that their conduct violates established law even in novel factual circumstances.” Id.

at 741.

          The Supreme Court has articulated narrow grounds that permit police officers to

detain individuals who are present during the execution of a search warrant, without

running afoul of the Fourth Amendment. A detention, however, remains distinct from a

                                               -16-
search. In addition, based on the allegations of Espinosa’s complaint, it would have been

clear to the officers executing the search warrant at the DJPC office that the circumstances

of that search did not implicate the apprehension of danger or the presence of contraband

that may have permitted detention of persons present at the scene, pursuant to Summers.

Rather, the circumstances here fall squarely into a factual pattern where a pat-down search

of an individual would be prohibited absent reasonable, individualized suspicion. See

Ybarra, Sporleder and Ward. Officer Ortiz therefore cannot prevail on his defense of

qualified immunity on the basis of the circumstances he has averred.

       Accordingly, the order denying the motion to dismiss of Ortiz is

              AFFIRMED.




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