NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 16 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUPITA CHAVEZ, No. 21-16094

Plaintiff-Appellee, D.C. No. 5:18-cv-02252-LHK

and

MEMORANDUM*

LIFE SAVERS CONCEPTS

ASSOCIATION OF CALIFORNIA; et al.,

Plaintiffs,

v.

ROAHN WYNAR,

Defendant-Appellant,

and

ALICIA COX; FEDERAL BUREAU OF

INVESTIGATION,

Defendants.

Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 5

Argued and Submitted December 8, 2022 San Francisco, California

Before: WATFORD and SANCHEZ, Circuit Judges, and BENITEZ,** District Judge. Dissent by Judge SANCHEZ.

Lupita Chavez contends that Roahn Wynar violated the Fourth Amendment

when he denied her access to her cell phone during a Summers-type detention. See

Michigan v. Summers, 452 U.S. 692, 701–06 (1981). The district court denied

Wynar’s motion for summary judgment based on qualified immunity because it

found that there was “a genuine dispute of material fact as to the length of time that

[Chavez] was deprived of her cell phone.” But even if we assume that Chavez’s

timeline is the correct one, Wynar is still entitled to qualified immunity under the

second prong of the analysis. See Pearson v. Callahan, 555 U.S. 223, 232, 236

(2009). We therefore reverse and remand.

To determine whether the denial of qualified immunity was appropriate, we

must adopt the non-moving party’s version of the facts. See Jeffers v. Gomez, 267

F.3d 895, 903 (9th Cir. 2001). Chavez alleges that, while executing a search of the

Life Savers Concepts Association office, law enforcement agents detained her and

three other occupants in the office’s main room for up to 40 minutes before

** The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation. Page 3 of 5

moving them into a small lobby at the front of the building. Once in the lobby,

Wynar ordered the detainees not to use their cell phones. After 30 to 40 minutes in

the lobby, Wynar released Chavez, along with two of the other detainees, but

insisted that the office manager remain.

Accepting these facts as true, we assume without deciding that Wynar

violated Chavez’s Fourth Amendment rights by denying her access to her cell

phone for one hour and 20 minutes. At the second step of the qualified immunity

analysis, however, we conclude that the law regarding the denial of phone access

was not clearly established.

Under the balancing approach that governs in this context, we have held that

officers acted unreasonably in denying telephone access during a Summers-type

detention only once before. See Ganwich v. Knapp, 319 F.3d 1115 (9th Cir. 2003).

In Ganwich, the officers held a group of employees incommunicado for time

periods ranging from one hour and 45 minutes to four hours and 45 minutes, and

they made the detainees’ release conditional on submitting to interrogation. Id. at

1118. We concluded that this conduct was constitutionally unreasonable because,

“[e]ven if at the start the officers had [a legitimate] interest in preventing the

plaintiffs from making a telephone call, the officers’ interest was soon outweighed

by the plaintiffs’ stronger interests in contacting relatives.” Id. at 1123. We noted Page 4 of 5

in particular that several employees needed to use the phone during their detention

to arrange childcare. Id.

This case differs from Ganwich in two important ways. First, Wynar denied

Chavez phone access for one hour and 20 minutes, which is significantly shorter

than the longest of the time periods involved in Ganwich and nearly half an hour

shorter than the minimum length of time at issue in Ganwich. Further, Ganwich

did not establish a bright-line limit on the length of time that an officer can deny

phone access during a Summers-type detention. It instead recognized that this is a

multifactor analysis that weighs the particular law-enforcement and privacy

interests involved in a given case. Id. at 1122–23. Second, in Ganwich we

indicated that the privacy interests there were weighty because the plaintiffs

expressed a compelling need to use their phones. Id. at 1123–24. Here, there is no

evidence in the record that Chavez sought to use her phone at all. Given these

differences and the fact-intensive nature of the balancing approach, we conclude

that the contours of the right were not sufficiently clear to put a reasonable officer

on notice that denying Chavez phone access during her detention crossed a

constitutional line. See Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Chavez contends that the similarities outweigh these differences because, as

in Ganwich, Wynar’s true purpose in denying phone access was to coerce the

office manager into cooperating with the investigation. However, this invitation to Page 5 of 5

probe Wynar’s intent is in tension with the objective approach that Ganwich

employed to determine whether the officers in that case conducted the Summers-

type detention in a reasonable manner. 319 F.3d at 1122 n.13. In Ganwich, the

officers’ actions—which included explicitly telling the employees that they could

not leave until they submitted to interviews—provided objective evidence that the

officers were holding the employees incommunicado to coerce interrogations. Id.

at 1118. We lack equivalent objective evidence here.

Ganwich therefore did not place the constitutional question presented here

“beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Accordingly,

even if Wynar unreasonably denied Chavez phone access during her detention, he

is entitled to qualified immunity under the second prong of the analysis.

REVERSED and REMANDED.

FILED

Chavez v. Wynar, 21-16094 MAR 16 2023

MOLLY C. DWYER, CLERK

SANCHEZ, J., dissenting: U.S. COURT OF APPEALS

Lupita Chavez alleges that Special Agent Wynar violated her Fourth

Amendment rights when she was detained incommunicado for one hour and

twenty minutes during the execution of a search warrant at Life Savers Concepts

Association (“Life Savers”).1 If this case only involved the length of time Lupita

was deprived of her cell phone, I would concur in the Court’s determination that

Wynar is entitled to qualified immunity as a matter of law. But Lupita presented

evidence sufficient to demonstrate that the search warrant was obtained as a

tactical ruse to coerce the office manager to submit to interrogation, and that

government agents conducted the search in an objectively unreasonable manner.

Because the law was clearly established that law enforcement agents cannot unduly

prolong a detention or employ other coercive means to induce an interrogation, I

would affirm the district court’s denial of Wynar’s motion for summary judgment.

I respectfully dissent.

I.

We apply a two-part analysis in qualified immunity cases. “First, a court

must determine whether—resolving all disputes of fact and credibility in favor of

1 As two of the plaintiffs in the underlying action share the same last name, I utilize their first names to avoid any confusion. 1 the party asserting the injury—the facts adduced at summary judgment show that

the officer’s conduct violated a constitutional right.” Pauluk v. Savage, 836 F.3d

1117, 1121 (9th Cir. 2016) (citing Kennedy v. City of Ridgefield, 439 F.3d 1055,

1060 (9th Cir. 2006)). Second, “if the court determines that the conduct did violate

a constitutional right, [the] second prong requires the court to determine whether,

at the time of the violation, the constitutional right was ‘clearly established.’” Id.

(alteration in original).

Michigan v. Summers permits law enforcement officials executing a search

warrant for contraband “to detain the occupants of the premises while a proper

search is conducted.” 452 U.S. 692, 705 (1981); see also Bailey v. United States,

568 U.S. 186, 200 (2013). While the authority to detain incident to a search is

categorical, Muehler v. Mena, 544 U.S. 93, 98 (2005), the Supreme Court has

made clear that such detentions must be conducted in an objectively reasonable

manner under the Fourth Amendment. See Los Angeles Cty. v. Rettele, 550 U.S.

609, 614–15 (2007) (recognizing “excessive force or restraints,” “prolonged

detention,” or other “special circumstances” may render a search or seizure

unreasonable); Summers, 452 U.S. at 701 (analyzing whether the detention was

“likely to be exploited by the officer or unduly prolonged in order to gain more

information” from the detention rather than a search of the premises).

2 This Court has also analyzed the reasonableness of a Summers detention

under a balancing approach, observing that “[t]he scope of a detention ‘must be

carefully tailored to its underlying justification.’” Ganwich v. Knapp, 319 F.3d

1115, 1122 (9th Cir. 2003) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983).

In Ganwich, we upheld the initial detention of employees in an office waiting room

because the law enforcement officers’ interests in facilitating a safe and efficient

search outweighed the plaintiffs’ privacy rights. Id. at 1120. However, the

officers’ conduct strayed “from fair to foul” when they prolonged the detention,

refused to allow the plaintiffs to make phone calls to arrange for the care of their

children, and conditioned plaintiffs’ release from detention on their submission to

interrogation. Id. at 1122–24. We concluded that “[b]ecause the interrogations of

the plaintiffs were not carefully tailored to the detention’s underlying justification,

the detention was more intrusive than necessary,” rendering the detentions

unlawful. Id. at 1122.

In Perez Cruz v. Barr, 926 F.3d 1128, 1143 (9th Cir. 2019), we held that

Summers’s “categorical authority to detain incident to the execution of a search

warrant does not extend to a preexisting plan whose central purpose is to detain,

interrogate, or arrest a large number of individuals, without individualized

reasonable suspicion.” Immigration agents had obtained a warrant to search a

warehouse for employment records as a tactical ruse to interrogate the employees

3 about their immigration status. Id. at 1141. We reasoned that Summers provides a

limited exception for the seizure of persons without individualized suspicion or

probable cause, but “[w]here ‘a safe and efficient search’ is not the primary

purpose of an officers’ actions, Summers’s justification for bypassing the Fourth

Amendment’s traditional protections disappears.” Id. (quoting Bailey, 568 U.S. at

200 (2013)).

Sufficient evidence has been adduced to establish a violation of Lupita’s

Fourth Amendment rights under Ganwich and Perez Cruz. Lupita asserts that the

primary purpose of the search warrant was to detain and interrogate individuals at

Life Savers, not to conduct a search of the premises. Wynar testified that he

obtained the search warrant as a “light-handed” “tactical ruse.” Other evidence

supports Lupita’s contention that Wynar’s plan was centered on detaining and

interrogating Raquel. Wynar abruptly released Lupita and the male volunteers

after holding them incommunicado for one hour and twenty minutes, he continued

to detain and interrogate Raquel for two more hours after releasing the others, and

his search of the office ended as soon as Raquel ended her interview with agents.2

2 After forty minutes in the lobby, Lupita asked, “Are we or anybody under arrest?” Wynar stated they were not. Lupita then questioned why the two male volunteers were handcuffed “if nobody’s under arrest?” Wynar responded “I forgot” and released Lupita and the male volunteers. Pointing to Raquel, he said, “You stay. You have questions to answer.” Raquel was interrogated for two more hours. The questioning ended when one of the volunteers brought a phone to

4 As Perez Cruz observed, “the authority granted by Summers ‘must not diverge

from its purpose and rationale.’” Perez Cruz, 926 F.3d at 1143 (quoting Bailey,

568 U.S. at 194). Because Lupita’s seizure was not a permissible Summers

detention, and the Government offers no other basis for Lupita’s suspicionless

detention, the evidence demonstrates a violation of the Fourth Amendment. See id.

at 1145.

Plaintiffs’ evidence also demonstrates that the officers prolonged Lupita’s

detention and employed objectively unreasonable tactics. Twenty-six agents

descended on Life Savers, guns drawn, to conduct a “low-risk” search of a

business office. Lupita, who had emerged from a shower half-dressed, was not

permitted by Wynar to put her clothes on. Raquel’s request to use the restroom

was also denied by Wynar. She later wet herself. The Government does not

explain how requiring Lupita to remain partially unclothed for some time,

prohibiting Raquel from using the restroom, or denying plaintiffs’ repeated

requests to see the search warrant served any governmental interests.

Plaintiffs’ detention continued well beyond the time required by agents to

secure the office and identify that it was nearly empty of records. The premises

were secured in approximately fifteen minutes and yet the plaintiffs were detained

Raquel, who called her attorney and was directed to stop answering agents’ questions. 5 incommunicado for approximately one hour and twenty minutes. Lupita points out

that denying access to her cell phone served the Government’s efforts to induce an

interrogation from Raquel. Earlier access to her phone might have led to an earlier

phone call to an attorney and a premature end to the Government’s interrogation

efforts, as occurred hours later. Viewing the evidence in the light most favorable

to Lupita, the scope and intrusiveness of her detention exceeded the Government’s

legitimate interests in conducting a safe and efficient search. See Florida, 460 U.S.

at 504; Ganwich, 319 F.3d at 1122.

II.

I would also conclude that it was clearly established that law enforcement

agents cannot prolong a detention or employ coercive means to induce detainees to

submit to an interrogation. 3 “The relevant inquiry in determining whether a right

was clearly established is whether it would be clear to a reasonable officer that his

or her conduct was unlawful in the situation confronted.” Ganwich, 319 F.3d at

1124. Ganwich held that “a reasonable officer would have known that . . . the

Constitution prohibits officers from using the threat of continued detention to

coerce detainees to submit to interrogation and prohibits officers from holding

people incommunicado for an extended length of time without justification.” Id.

3 Because Perez Cruz issued after the search in question, I do not rely on this precedent in analyzing the second prong of qualified immunity. 6 A reasonable officer would also understand that the Constitution prohibits

officers from using other objectively unreasonable methods, short of explicit

threats, to coerce detainees into interrogation. Id. Wynar’s allegedly unreasonable

actions included forcing Lupita to remain partially disrobed without justification,

prolonging her detention for reasons unrelated to the search of the Life Savers

premises, and detaining her incommunicado for an extended period as a means of

facilitating an interrogation. A reasonable officer would have recognized that a

seizure under those circumstances is significantly more intrusive than is necessary.

Id. at 1125; see also Rettele, 550 U.S. at 614–15; Summers, 452 U.S. at 701.

Accordingly, I would affirm the district court’s denial of Wynar’s motion for

summary judgment.

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